UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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The Authors Guild, Inc., Association of American

:

Publishers, Inc., et al.,

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:

Plaintiffs,

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:

v.

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Google Inc.,

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Defendant.

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Case No. 05 CV 8136-DC
AMENDED SETTLEMENT AGREEMENT

TABLE OF CONTENTS

Page

ARTICLE I — DEFINITIONS ...........................................................................................2
ARTICLE II — SETTLEMENT BENEFITS – OVERVIEW AND AUTHORIZATIONS ......................................................................................23
2.1 Benefits to the Amended Settlement Class – Overview. ...................................23 2.2 Authorization of Google, Fully Participating Libraries and Cooperating
Libraries .............................................................................................................25 2.3 Author-Publisher Procedures .............................................................................26 2.4 Non-Exclusivity of Authorizations....................................................................26
ARTICLE III — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND OBLIGATIONS...............................................................................................26
3.1 Digitization, Identification and Use of Books. ..................................................26 3.2 Initial Display and No Display Book Classification..........................................28 3.3 Display Books....................................................................................................33 3.4 No Display Books. .............................................................................................35 3.5 Right to Remove or Exclude..............................................................................35 3.6 Technical Adaptations .......................................................................................42 3.7 Contemplated Rightsholder Services.................................................................42 3.8 Effect of Changes in Law ..................................................................................45 3.9 Distribution Arrangements ................................................................................46 3.10 Specific Prohibitions..........................................................................................46 3.11 Hosted Version for Rightsholders......................................................................49 3.12 Use of Digital Copies.........................................................................................49 3.13 Communication of Rightsholder Directions to Google .....................................49 3.14 Advertising Uses................................................................................................49 3.15 Extent of Rights and Authorizations..................................................................50
ARTICLE IV — ECONOMIC TERMS FOR GOOGLE’S USE OF BOOKS.................50 4.1 Institutional Subscriptions. ................................................................................50 4.2 Consumer Purchases. .........................................................................................58 4.3 Preview Uses......................................................................................................62 4.4 Advertising Revenue Model ..............................................................................67 4.5 Standard Revenue Splits and Discounting.........................................................68 4.6 Payment Terms. .................................................................................................71 4.7 Additional Revenue Models ..............................................................................73 4.8 Public Access Service........................................................................................74 4.9 Economic Terms Renegotiation.........................................................................75
ARTICLE V — OTHER SETTLEMENT BENEFITS .....................................................75 5.1 Cash Payment to Class Members Whose Books and Inserts Have Been Digitized.............................................................................................................75

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TABLE OF CONTENTS (continued)

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5.2 Payment For Registry, Notice and Claims Administration ...............................76 5.3 Timing of Payments under Sections 5.1 and 5.2. ..............................................77 5.4 Plan of Allocation ..............................................................................................79 5.5 Attorneys’ Fees ..................................................................................................80

ARTICLE VI — ESTABLISHMENT AND CHARTER OF REGISTRY.......................80 6.1 Functions............................................................................................................80 6.2 Charter. ..............................................................................................................81 6.3 Unclaimed Funds and Public Domain Funds. ...................................................83 6.4 Funding and Technical Assistance ....................................................................86 6.5 Google’s Rights to Registry Data. .....................................................................86 6.6 Exchange of Data between Google and the Registry. .......................................87 6.7 Authorization of Registry ..................................................................................90

ARTICLE VII — FULLY PARTICIPATING LIBRARY AND COOPERATING LIBRARY RIGHTS AND OBLIGATIONS ...................................................90
7.1 Becoming a Fully Participating Library or a Cooperating Library ...................90 7.2 Fully Participating Library Uses........................................................................91 7.3 Google’s Obligations. ......................................................................................110 7.4 Fully Participating Libraries’ and Cooperating Libraries’ Exercise of
Collective Rights..............................................................................................111 7.5 Meetings to Discuss Library Uses. ..................................................................114 7.6 When Fully Participating Libraries, Cooperating Libraries and Public
Domain Libraries are Bound............................................................................115
ARTICLE VIII — SECURITY AND BREACH ............................................................115 8.1 Obligations of Google, the Fully Participating Libraries and the Host Sites..................................................................................................................115 8.2 Security Standard, Security Implementation Plan and Security Audits. .........116 8.3 Breaches – General Principles. ........................................................................120 8.4 Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access...............................124 8.5 Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site..................125 8.6 Remedies for Security Violations by Third Parties .........................................127 8.7 Adjustments to Liability Ranges and Caps......................................................129
ARTICLE IX — DISPUTE RESOLUTION...................................................................130 9.1 Arbitration of Disputes and Exceptions...........................................................130 9.2 Executive Escalation........................................................................................131 9.3 Arbitration........................................................................................................131 9.4 Notice to Rightsholders ...................................................................................134 9.5 Notice to Registry; Consolidation....................................................................134

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TABLE OF CONTENTS (continued)

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9.6 Precedential Effect ...........................................................................................134 9.7 Decision ...........................................................................................................134 9.8 Confidentiality .................................................................................................134 9.9 Fees and Costs .................................................................................................134 9.10 Joinder..............................................................................................................135 9.11 Injunctive Relief ..............................................................................................135 9.12 Continuing Jurisdiction....................................................................................135

ARTICLE X — RELEASES ...........................................................................................135 10.1 Definitions. ......................................................................................................135 10.2 Releases. ..........................................................................................................140

ARTICLE XI — PRELIMINARY SETTLEMENT APPROVAL .................................145

ARTICLE XII — CLASS NOTICE PROGRAM ...........................................................145 12.1 Original Notice ................................................................................................145 12.2 Supplemental Notice........................................................................................146

ARTICLE XIII — SETTLEMENT ADMINISTRATION PROGRAM.........................147 13.1 Registration and Completing Claims...............................................................147 13.2 Validating and Challenging Claims. ................................................................149 13.3 Claiming Process and Website ........................................................................152 13.4 Time for Filing Deadline for Registration/Claim Forms .................................152 13.5 Registry Determination of Rightsholder..........................................................152 13.6 Final Report Regarding Cash Payments. .........................................................153 13.7 No Liability For Settlement or Registry Administration .................................154
ARTICLE XIV — FINAL FAIRNESS HEARING........................................................154
ARTICLE XV — CONFIDENTIALITY........................................................................154 15.1 Confidential Information .................................................................................154 15.2 Obligations.......................................................................................................155 15.3 Confidentiality of Rightsholder Information ...................................................155 15.4 Disclosures Required by Law ..........................................................................155
ARTICLE XVI — INTENTIONALLY OMITTED .......................................................156
ARTICLE XVII — MISCELLANEOUS PROVISIONS ...............................................156 17.1 Good Faith Efforts ...........................................................................................156 17.2 Plaintiffs’ Participation in Settlement..............................................................156 17.3 Final if Not Terminated ...................................................................................156 17.4 Dismissal of Action .........................................................................................156 17.5 Effect of Termination.......................................................................................156 17.6 Reimbursement if Terminated .........................................................................157

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TABLE OF CONTENTS (continued)

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17.7 Jurisdiction.......................................................................................................157 17.8 Contact with Rightsholders..............................................................................158 17.9 Separate Agreements with Amended Settlement Class Members...................158 17.10 Scan Quality.....................................................................................................159 17.11 Use of Contractors ...........................................................................................159 17.12 Effect of Right to Exclude ...............................................................................159 17.13 Patent Indemnity ..............................................................................................159 17.14 No Liability for Consequential Damages ........................................................160 17.15 Notices. ............................................................................................................160 17.16 Time Periods ....................................................................................................161 17.17 Public Statements.............................................................................................161 17.18 Tax Consequences ...........................................................................................162 17.19 Destruction.......................................................................................................162 17.20 Attachments .....................................................................................................162 17.21 No Other Representations................................................................................162 17.22 Governing Law ................................................................................................162 17.23 Court’s Continuing Jurisdiction.......................................................................162 17.24 Extensions of Time ..........................................................................................163 17.25 Complete Defense............................................................................................163 17.26 Entire Agreement .............................................................................................163 17.27 Amendments ....................................................................................................163 17.28 No Party Is the Drafter.....................................................................................163 17.29 No Prevailing Party..........................................................................................163 17.30 Assignment ......................................................................................................163 17.31 Counterparts.....................................................................................................164 17.32 Interpretation....................................................................................................164 17.33 Effect of Opt-Out .............................................................................................165 17.34 Compliance with Law......................................................................................165

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AMENDED SETTLEMENT AGREEMENT
WHEREAS, Plaintiffs, individually and on behalf of the Amended Settlement Class, have alleged that Defendant Google Inc. has violated the copyright laws of the United States; and
WHEREAS, Google believes that its conduct was lawful at all times in all respects, and has not admitted any of the allegations of copyright infringement in the complaint or amended complaints filed by Plaintiffs in the Action; and
WHEREAS, certain libraries have granted Google access to their collections with the intention of providing great benefits to researchers and the reading public, and those libraries believe that their conduct was lawful at all times and in all respects; and
WHEREAS, Class Counsel have conducted a thorough investigation into the facts and issues raised in the Action; and
WHEREAS, Class Counsel, while continuing to believe that the claims asserted in the Action have substantial merit, have also weighed the benefits of a possible settlement against the possible outcomes, risks, and delay of continued litigation, including the likelihood of appeals from rulings on the merits in favor of either Plaintiffs or Google; and
WHEREAS, Plaintiffs and Google, in consideration of all of the circumstances and after prolonged and adversarial arms’ length settlement negotiations, wish to settle and finally resolve all actual and potential claims pertaining to the matters asserted in the Action; and
WHEREAS, Plaintiffs and Class Counsel conclude that this Amended Settlement Agreement is fair, reasonable, adequate and in the best interests of the Amended Settlement Class in light of the risks inherent in prosecuting the Action and the benefits obtained under this Amended Settlement Agreement; and
WHEREAS, Plaintiffs and Google further conclude that the Settlement will be of great benefit to copyright owners (including authors and publishers) and to libraries, researchers, and the reading public; and
Amended Settlement Agreement

WHEREAS, Google has agreed to enter into this Amended Settlement Agreement to conclude finally and definitively all claims brought in the Action and to reduce further expense, inconvenience, and the distraction of burdensome and protracted litigation, notwithstanding that Google does not admit any wrongdoing alleged in the Action; and
WHEREAS, Plaintiffs and Google agree to seek certification of the Amended Settlement Class only for settlement purposes.
NOW, THEREFORE, it is agreed by and among the undersigned that the claims of Plaintiffs in the Action shall be settled with Google, subject to approval of the Court as required by Rule 23(e) of the Federal Rules of Civil Procedure, on the following terms and conditions:
ARTICLE I — DEFINITIONS
As used in this Amended Settlement Agreement and in other agreements that refer to the definitions in this Amended Settlement Agreement, the following terms are defined as set forth below. Additional terms are defined elsewhere in this Amended Settlement Agreement.
1.1 “Access Uses” means uses that may display Protected material from a Book or Insert to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display, Front Matter Display or Preview Uses. Institutional Subscriptions, Consumer Purchase and the Public Access Service are the only Access Uses authorized as of the Effective Date.
1.2 “Accommodated Service” has the meaning set forth in Section 7.2(g) (Accommodated Service).
1.3 “Action” means The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.).
1.4 “Additional Contemplated Rightsholder Services Provider” has the meaning set forth in Section 3.7 (Contemplated Rightsholder Services).
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Amended Settlement Agreement

1.5 “Adjunct Product” has the meaning set forth in Section 4.1(a)(ix) (Adjunct Products).
1.6 “Administrative Costs” means the reasonable costs of (a) preparing and providing notice pursuant to Article XII (Class Notice Program) or as otherwise ordered by the Court; (b) setting up and operating the Settlement Administration Program and the Registry; and (c) any escrow fees paid to the Depository Bank and payments to an independent third party for services and expenses in connection with administration of the Settlement Fund, including the preparation and mailing of tax forms and tax returns.
1.7 “Advertising Uses” has the meaning set forth in Section 3.14 (Advertising Uses).
1.8 “Affiliate” of an entity means any legally recognizable entity that directly or indirectly Controls, is Controlled by, or is under common Control with such first entity, where “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies, whether through the ownership of voting shares, by contract, or otherwise, for so long as such Control exists.
1.9 “Affiliate Program” has the meaning set forth in Section 4.5(b)(v) (Sale of Consumer Purchases through Affiliate Programs and Resellers).
1.10 “Alternative Accommodated Service Provider” has the meaning set forth in Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider).
1.11 “Amended Settlement Agreement” means this agreement and all of its attachments, as each may be amended from time to time pursuant to Section 17.27 (Amendments).
1.12 “Amended Settlement Agreement Date” means the date set forth at the end of this Amended Settlement Agreement.
1.13 “Amended Settlement Class” means all Persons that, as of January 5, 2009, have a Copyright Interest in one or more Books or Inserts. All Amended Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Amended Settlement Class are Google, the
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Amended Settlement Agreement

members of Google’s Board of Directors and its executive officers, and the departments, agencies and instrumentalities of the United States Government, and the Court.
1.14 “Arbitrator” has the meaning set forth in Section 9.3(a) (AAA Arbitration).
1.15 “Associational Plaintiffs” means The Authors Guild, Inc. and the Association of American Publishers, Inc.
1.16 “Audited Party” has the meaning set forth in Section 8.2(c)(i) (Audited Parties).
1.17 “Author Sub-Class” means members of the Amended Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Amended Settlement Class who are not members of the Publisher Sub-Class.
1.18 “Author-Publisher Procedures” means the document attached hereto as Attachment A (Procedures Governing Author Sub-Class and Publisher Sub-Class Under the Amended Settlement Agreement).
1.19 “Book” means a written or printed work that as of January 5, 2009 (a) had been published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, (b) was subject to a Copyright Interest, and (c) (1) if a “United States work,” as defined in 17 U.S.C. § 101, was registered with the United States Copyright Office, and (2) if not a United States work, either (x) was registered with the United States Copyright Office, or (y) had a place of publication in Canada, the United Kingdom or Australia, as evidenced by information printed in or on a hard copy of the work. Relevant information printed in or on a hard copy of the work may include, for example, a statement that the book was “Published in [Canada] or [the UK] or [Australia],” or the location or address of the publisher in one of those three countries. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than twenty percent (20%) of the pages of text (not including tables of contents, indices, blank pages, title pages, copyright pages and verso pages) contain more than twenty percent (20%) music notation, with or without lyrics interspersed (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, (v) Government Works, or (vi) calendars. References in this Settlement
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Amended Settlement Agreement

Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.
1.20 “Book Annotation” means user-generated text that is both (a) associated with the content on the page of a Book and (b) displayed on or over any web page on which a page of a Book appears.
1.21 “Books Database” has the meaning set forth in Section 3.1(b)(ii) (Books Database).
1.22 “Business Day” means any day other than Saturday, Sunday, New Year’s Day, the observance of the Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day and any other day appointed as a federal or New York state holiday.
1.23 “Cash Payment” has the meaning set forth in Section 5.1(a) (Cash Payments).
1.24 “Charter” means the certificate of incorporation and bylaws of the Registry.
1.25 “Claim” has the meaning set forth in Section 10.1(a) (Claim).
1.26 “Claim Form” has the meaning set forth in Section 13.1 (Registration and Completing Claims).
1.27 “Claimant” has the meaning set forth in Section 13.1 (Registration and Completing Claims).
1.28 “Class Counsel” means the firms of Boni & Zack LLC, Milberg LLP, and Kohn, Swift & Graf, PC, as counsel for the Author Sub-Class, and the firm of Debevoise & Plimpton LLP, as counsel for the Publisher Sub-Class.
1.29 “Class Notice Program” means the class notice program described in Article XII (Class Notice Program).
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Amended Settlement Agreement

1.30 “Collection” means the Books held by a Fully Participating Library or a Cooperating Library that have been Digitized or are targeted for Digitization pursuant to a Digitization Agreement between Google and such Fully Participating Library or such Cooperating Library, which Books may be some or all of such Fully Participating Library’s or such Cooperating Library’s holdings.
1.31 “Commercially Available” means, with respect to a Book, that the Rightsholder of such Book, or such Rightsholder’s designated agent, is, at the time in question, offering the Book (other than as derived from a Library Scan) for sale new, from sellers anywhere in the world, through one or more then-customary channels of trade to purchasers within the United States, Canada, the United Kingdom or Australia.
1.32 “Competent Authority” means an individual who is employed in one of the professional occupations that is qualified to diagnose Print Disabilities under the federal law and regulations that govern the National Library Service for the Blind and Physically Handicapped or is licensed or otherwise certified or authorized under applicable state law or regulations to diagnose the existence of a Print Disability pursuant to standard and generally accepted methods of clinical evaluation.
1.33 “Confidential Information” has the meaning set forth in Section 15.1 (Confidential Information).
1.34 “Consumer Price Index” has the meaning set forth in Section 8.2(c)(iii) (Adjustment to Audit Costs).
1.35 “Consumer Purchase” and “Consumer Purchases” mean a service provided by Google that allows a user, for a fee, to access and view Online the full contents of a Display Book, as specified in and subject to Section 4.2 (Consumer Purchases).
1.36 “Consumer Subscription” has the meaning set forth in Section 4.7(c) (Consumer Subscription Models).
1.37 “Contemplated Rightsholder Services” means Consumer Purchases and Institutional Subscriptions.
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Amended Settlement Agreement

1.38 “Continuous Preview” has the meaning set forth in Section 4.3(c)(iii) (Continuous Preview).
1.39 “Cooperating Library” means any library physically located in the United States and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry), (b) provides Books to Google for Digitization but agrees that Google will not provide to such library a Digital Copy of such Books unless otherwise authorized by the Rightsholder, (c) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by Google to such library or that such library receives from Google in the future, and (d) enters into a Library-Registry (Cooperating) Agreement.
1.40 “Copyright Act” means the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq.
1.41 “Copyright Interest” means (a) ownership (including joint ownership) of a United States copyright interest or (b) an exclusive license of a United States copyright interest, in each case only if and to the extent the interest is implicated by a use that is authorized or for which compensation could be payable under this Amended Settlement Agreement.
1.42 “Coupling Requirement” has the meaning set forth in Section 3.5(b)(iii) (Coupling Requirement).
1.43 “Court” means the U.S. District Court for the Southern District of New York.
1.44 “Creative Commons License” means a Creative Commons license or similar contractual permission for use that is published by the Creative Commons Corporation at http://www.creativecommons.org (or successor website).
1.45 “Decision” has the meaning set forth in Section 9.7 (Decision).
1.46 “Depository Bank” means Citizens Bank.
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1.47 “Designated Representative” means a Person designated from time to time by the Fully Participating Libraries and the Cooperating Libraries pursuant to Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement and Attachment 1 to Exhibit C of the Library-Registry (Cooperating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) to convey to Google and/or the Registry, as applicable, instructions, decisions and positions of the Fully Participating Libraries and the Cooperating Libraries, or only the Fully Participating Libraries, as the case may be, on matters to which Section 7.4(a) (Designated Representative and Security Representatives) of this Amended Settlement Agreement refers.
1.48 “Digital Copy” of a Book or Insert means a set (or portion thereof) of electronic files created by or for Google or provided to Google in connection with GBS, including the image files of the individual pages of the Book or Insert along with text (currently generated from OCR technology), coordinate information for the text, information about the ordering of pages along with page-level metadata such as page number and other similar information, regardless of the means or technology used to prepare such copy, whether now known or hereafter developed, and any digital copy of such set of electronic files.
1.49 “Digitization Agreement” means an agreement between Google and a library to Digitize works held by that library, as such agreement may be amended from time to time.
1.50 “Digitize” means to convert a work from a hard copy (not including microform) format into an electronic representation, using any means and any technology, whether now known or hereafter developed, including making necessary technical adaptations to achieve such conversion (but not including adapting or altering the content of such written work). “Digitization,” “Digitizing” and “Digitized” have corresponding meanings.
1.51 “Display Books” means Books for which one or more Display Uses are authorized pursuant to this Amended Settlement Agreement.
1.52 “Display Uses” means the following: Snippet Display, Front Matter Display, Access Uses and Preview Uses.
1.53 “Effective Date” means the first date upon which each and all of the following events shall have occurred: (a) the Final Approval Date has occurred; (b) the
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Court has entered the Final Judgment and Order of Dismissal with prejudice as to Google against Plaintiffs and all Rightsholders; and (c) the time for any appeal from the Final Judgment and Order of Dismissal in the Action and the Court’s approval of this Amended Settlement Agreement has expired, or, if appealed, the Final Judgment and Order of Dismissal has been affirmed in its entirety by the court of last resort to which any such appeal has been taken and such affirmance has become no longer subject to further appeal or review. Neither Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into consideration in calculating the abovestated time periods.
1.54 “Entire Insert” means an Insert that is an entire work, including forewords, afterwords, introductions, entire works included in anthologies, and entire poems, short stories, song lyrics or essays.
1.55 “Expression” means either (a) Protected expression, which, in the case of text, means no fewer than three (3) contiguous words, or (b) any contiguous set of ten (10) or more words from a Book or Insert, not counting expression that is not Protected.
1.56 “Fiction” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).
1.57 “Final Approval Date” means the date the Court has certified the Amended Settlement Class and approved this Amended Settlement Agreement in all respects, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
1.58 “Final Fairness Hearing” has the meaning set forth in Article XIV (Final Fairness Hearing).
1.59 “Final Settlement Deposit” has the meaning set forth in Section 5.3(b) (Final Settlement Deposit).
1.60 “Fixed Preview” has the meaning set forth in Section 4.3(b)(iii) (Fixed Preview).
1.61 “Front Matter Display” means the display to users of Google Products and Services of one or more of the title page, copyright page, table of contents, other pages that appear prior to the table of contents at the front of the Book, and indexes of a Book.
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1.62 “Fully Participating Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry) and (b) enters into a Library-Registry (Fully Participating) Agreement.
1.63 “Google” means Google Inc. and its Affiliates.
1.64 “Google Book Search,” or “GBS,” means the program(s) pursuant to which Google, having Digitized works obtained pursuant to the Google Partner Program, the GLP or other means authorized by the Book’s Rightsholder or the Registry (or having obtained works in Digitized form through such programs or other means authorized by the Book’s Rightsholder or the Registry), transmits Online (a) information about such works and (b) portions of, and in some cases all of, the Digitized works, whatever such program(s) may be called by Google from time to time.
1.65 “Google Library Project” or the “GLP” means the program(s) pursuant to which Google obtains Books and other works from libraries or other sources (including through book drives, from Rightsholders directly or elsewhere, but not including the Google Partner Program), for the purposes of Digitizing them (if not obtained in Digitized form) and including them in GBS, whatever such program(s) may be called by Google from time to time.
1.66 “Google Partner Program” means the program(s) pursuant to which Persons who have Copyright Interests in works contract with Google (other than by operation of this Amended Settlement Agreement) to grant to Google the right to include such works in GBS, whatever such program(s) may be called by Google from time to time.
1.67 “Google Products and Services” means any and all products and services offered to the public by Google directly or indirectly through third parties from time to time, now or in the future, whereby Google makes information accessible to a user Online, using any means and any technology, whether now known or hereafter developed. Google Products and Services include GBS.
1.68 “Government Works” means written or printed works covered by Section 105 of the Copyright Act or state law equivalents thereto.
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1.69 “Higher Education Institution” means an Institution of Higher Education, as defined by the Carnegie Classifications of Institutions of Higher Education from time to time or, if and when the Carnegie Foundation for the Classification of Teaching is no longer classifying colleges and universities in the United States, as such term or its successor term is defined by any successor classification system used to classify colleges and universities in the United States.
1.70 “Host Site” means an institution authorized under this Amended Settlement Agreement to host the Research Corpus pursuant to the requirements of Section 7.2(d)(ii) (Host Sites).
1.71 “Host Site-Registry Agreement” has the meaning set forth in Section7.2(d)(ii) (Host Sites).
1.72 “Hosting Fully Participating Library” has the meaning set forth in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).
1.73 “Inconsequential Breach” means a breach that (a) is not the result of reckless, willful or intentional misconduct by Google, a Host Site or a Fully Participating Library, (b) does not lead to, or present an immediate risk of, any Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, (c) does not represent an extensive or systematic failure to comply with the Security Standard or the applicable then-current Security Implementation Plan and (d) when identified, is promptly corrected or cured.
1.74 “Initial Settlement Deposit” has the meaning set forth in Section 5.3(a) (Initial Settlement Deposit).
1.75 “Insert” means the following content, if and to the extent such content is independently Protected by the Copyright Act and, if a “United States work” as defined in 17 U.S.C. § 101, is covered by a registration with the United States Copyright Office as of January 5, 2009, either as a stand-alone work or as part of another, registered work from which it was excerpted, and is either (a) contained in a Book if there is no Person who has a Copyright Interest in such content as well as a Copyright Interest in such Book’s Principal Work, (b) contained in a Public Domain Book, or (c) contained in a Government Work that, on or before January 5, 2009, was published or distributed to the public or made available for public access: (i) text, such as forewords, afterwords, prologues, epilogues, essays, poems, quotations, letters, song lyrics, or excerpts from
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other Books, Periodicals or other works; and (ii) tables, charts and graphs. The term “Insert” does not include (1) pictorial works, such as photographs, illustrations, maps, paintings, or music notation (i.e., notes on a staff or tablature) or (2) works that are in, or as they become in, the public domain under the Copyright Act in the United States.
1.76 “Institutional Consortium” means a group of libraries, companies, institutions or other entities located within the United States that is a member of the International Coalition of Library Consortia.
1.77 “Institutional Subscription” means any service of a limited duration provided by Google to an institution for a fee that allows Online access to and viewing of the full contents of the Institutional Subscription Database, as specified in and subject to Section 4.1 (Institutional Subscriptions).
1.78 “Institutional Subscription Database” has the meaning set forth in Section 4.1(a)(v) (Versions of Institutional Subscriptions).
1.79 “ISBN” means International Standard Book Number or, if and when ISBNs are no longer being issued, the number issued pursuant to any successor system used internationally to uniquely identify books and book-like products.
1.80 “Library Building” means a building physically located in the United States that, in whole or in part, is used by a Public Library and the part so used is predominantly used for the storage of, and access to, such Public Library’s library books or library services.
1.81 “Library Digital Copy” or “LDC” means the set (or portion thereof) of all Digital Copies of Books in a Fully Participating Library’s Collection, which Digital Copies are made by copying the Library Scan (or are otherwise made pursuant to Section 7.2(a) (Making of Library Digital Copies)), and which Google provides to the Fully Participating Library.
1.82 “Library Link” means a link placed on pages in Google Book Search dedicated to a single Library Work that directs a user to existing Online sources, which, free of charge to the user (and with no out-of-pocket payments by Google to third-party providers of such sources), assists such user in finding that Library Work in a library.
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Amended Settlement Agreement

1.83 “Library-Registry Agreement” means an agreement substantially similar in form to one of the agreements attached hereto as Attachment B (Form of LibraryRegistry Agreements) between the Registry and a Fully Participating Library, Cooperating Library or Public Domain Library. The Library-Registry (Fully Participating) Agreement attached hereto as Attachment B-1 is for Fully Participating Libraries. The Library-Registry (Cooperating) Agreement attached hereto as Attachment B-2 is for Cooperating Libraries. The Library-Registry (Public Domain) Agreement attached hereto as Attachment B-3 is for Public Domain Libraries.
1.84 “Library Scan” means the Digital Copy of a Library Work Digitized by or for Google or by or for a Fully Participating Library or a Cooperating Library and received by Google, and all Digital Copies of such Digital Copy.
1.85 “Library Work” means a Book that a Fully Participating Library or a Cooperating Library makes available to Google, either in hard copy (not including microform) format to be Digitized, or in a form Digitized by or for such Fully Participating Library or Cooperating Library, for the Google Library Project.
1.86 “Limited Subscription” means an Institutional Subscription offered to a library that allows the subscribing library access only to the Books Digitized from that library, or only to the Books held by that library.
1.87 “List Price” means the then-current price for Institutional Subscriptions and Consumer Purchases determined in accordance with Sections 4.1 (Institutional Subscriptions) and 4.2 (Consumer Purchases), respectively.
1.88 “Metadata” means data that describes other data (e.g., a library catalog of publications and the author, title, publisher, ISBN, and date of publication of the publications in the catalog are all types of Metadata).
1.89 “Net Advertising Revenues” means, subject to Section 4.5(b) (Discounting, Special Offers and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google for Advertising Uses displayed to U.S. users, less ten percent (10%) for Google’s operating costs.
1.90 “Net Purchase Revenues” means, subject to Section 4.5(b) (Discounting, Special Offers and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually
13
Amended Settlement Agreement

received by Google from subscribers or purchasers within the U.S. from all Revenue Models other than Advertising Uses, less ten percent (10%) for Google’s operating costs.
1.91 “No Display Books” are Books for which no Display Uses are authorized pursuant to this Amended Settlement Agreement.
1.92 “No Preview” has the meaning set forth in Section 4.3(b)(ii) (No Preview).
1.93 “Non-Consumptive Research” means research in which computational analysis is performed on one or more Books, but not research in which a researcher reads or displays substantial portions of a Book to understand the intellectual content presented within the Book. Categories of Non-Consumptive Research include:
(a) Image Analysis and Text Extraction – Computational analysis of the Digitized image artifact to either improve the image (e.g., de-skewing) or extracting textual or structural information from the image (e.g., OCR).
(b) Textual Analysis and Information Extraction – Automated techniques designed to extract information to understand or develop relationships among or within Books or, more generally, in the body of literature contained within the Research Corpus. This category includes tasks such as concordance development, collocation extraction, citation extraction, automated classification, entity extraction, and natural language processing.
(c) Linguistic Analysis – Research that performs linguistic analysis over the Research Corpus to understand language, linguistic use, semantics and syntax as they evolve over time and across different genres or other classifications of Books.
(d) Automated Translation – Research on techniques for translating works from one language to another.
(e) Indexing and Search – Research on different techniques for indexing and search of textual content.
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Amended Settlement Agreement

1.94 “Non-Display Uses” means uses that do not display Expression from Digital Copies of Books or Inserts to the public. By way of example, display of bibliographic information, full-text indexing without display of Expression (such as listing the number or location of search matches), geographic indexing of Books, algorithmic listings of key terms for chapters of Books, and internal research and development using Digital Copies are all Non-Display Uses.
1.95 “Not Counted Library Work” means any Library Work with respect to the Library Scan of which Google has reasonable quality, legal, or technical concerns that are not solely editorial-based concerns.
1.96 “Notice” has the meaning set forth in Article XII (Class Notice Program).
1.97 “Notice Commencement Date” means January 5, 2009.
1.98 “OCR” means optical character recognition.
1.99 “Online” means over the Internet or other data or communication network, with or without caching, through a browser or other computer program used for accessing sites or information on a network.
1.100 “Online Book Page” means any page in Google Products and Services dedicated to a single Book, including any Preview Use page, any Snippet Display page, any page of a Book displayed in Google Products and Services, and search results pages resulting from a search within a single Book. Any general search results page in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be a page dedicated to a single Book, even if a single Book is the sole search result of a given search on the search results page.
1.101 “Other Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that has signed a Digitization Agreement with Google, but has not entered into a Library-Registry Agreement.
1.102 “Partial Insert” means an Insert other than an Entire Insert.
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Amended Settlement Agreement

1.103 “Participating Libraries” means Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries and Other Libraries.
1.104 “Periodical” means a newspaper, magazine, comic book, or journal and any other publication (a) that is published at a stated frequency with the intent to continue publication indefinitely; (b) whose continuity shows from issue to issue (e.g., by serialization of articles or by successive issues carrying the same style, format, theme, or subject matter); (c) whose primary purpose is to transmit information; (d) whose content consists of original or reprinted articles on one topic or many topics, listings, photographs, illustrations, graphs, a combination of advertising and nonadvertising matter, comic strips, legal notices, editorial material, cartoons, or other subject matter; and (e) for which the primary distribution of each issue is made before that of each succeeding issue; including any book form compilation of any of the foregoing.
1.105 “Person” means a natural person and any corporation, partnership, limited liability company, association, whether incorporated or not, and any other entity organized under United States federal or state law, or under foreign law.
1.106 “Plaintiffs” means Representative Plaintiffs and Associational Plaintiffs.
1.107 “Plan of Allocation” means the Plan of Allocation attached hereto as Attachment C (Plan of Allocation).
1.108 “Preview Uses” means uses that may display Protected material from a Book to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display or Front Matter Display, as specified in and subject to Section 4.3 (Preview Uses).
1.109 “Price Change Cut Off Date” has the meaning set forth in Section 4.1(a)(viii)(2) (Registry Proposed Adjustments).
1.110 “Pricing Algorithm” has the meaning set forth in Section 4.2(b)(i)(2) Settlement Controlled Price).
1.111 “Pricing Bin” has the meaning set forth in Section 4.2(c)(i) (Pricing Bins).
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Amended Settlement Agreement

1.112 “Pricing Strategy” has the meaning set forth in Section 4.1(a)(vi) (Pricing Strategy).
1.113 “Principal Work” means a Book’s principal written work. A Principal Work can be a collective work, such as a collection of short stories or plays. A Book contains only one Principal Work but may contain other text, such as a foreword, afterword and annotations. A foreign language translation or an abridged version of a Principal Work is a different Principal Work. Two (2) or more Books that contain the same Principal Work but that each contains different or additional Protected Expression are considered to be different Books. By way of example, two (2) Books that have the same Principal Work (e.g., To Kill a Mockingbird) but have different forewords or additional annotations (e.g., the J.B. Lippincott and the Harper Collins editions) are different Books under this Amended Settlement Agreement. A hard cover Book and a soft cover Book may have the same Principal Work, but are considered different Books under this Amended Settlement Agreement (even if they contain no additional matter) if the hard cover Book and the soft cover Book have different ISBNs.
1.114 “Print Disability” means any condition in which a user is unable to read or use standard printed material due to blindness, visual disability, physical limitations, organic dysfunction, or dyslexia.
1.115 “Prohibited Access” means reproduction or display by a Fully Participating Library or Host Site of any Digital Copy of a Book that is prohibited by the applicable Library-Registry Agreement or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.
1.116 “Protected,” when used in connection with “works,” “material,” “Expression,” or “content” means works, material, Expression or content as to which a Person has a Copyright Interest under Section 106 of the Copyright Act, without giving effect to Sections 107 through 122 of the Copyright Act.
1.117 “Public Access Service” means a service provided by Google to each Public Library and each not-for-profit Higher Education Institution that allows users to search and view the entire then-current Institutional Subscription Database, as specified in and subject to Section 4.8 (Public Access Service).
1.118 “Public Domain Book” means a written or printed work that would be a “Book” but for the work being in the public domain under the Copyright Act in the United States, without regard to whether such work contains an Insert; provided,
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Amended Settlement Agreement

however, that, if the work is a “United States work” as defined in 17 U.S.C. § 101, it need not have been registered with the United States Copyright Office to be considered to be a Public Domain Book.
1.119 “Public Domain Funds” has the meaning set forth in Section 6.3(b) (Public Domain Funds).
1.120 “Public Domain Library” means a library physically located in the United States and organized as or within a not-for-profit or government entity that (a) will not provide materials to Google for Digitization when it knows that those materials are Books, (b) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by Google to such library or that such library receives from Google in the future, and (c) enters into a Library-Registry (Public Domain) Agreement.
1.121 “Public Library” means a library that (a) is accessible by the public, (b) is, or is part of, a not-for-profit or government-funded institution other than a not-for-profit or government-funded institution that is classified under the Carnegie Classification of Institutions of Higher Education, and (c) allows patrons to take books and other materials off the premises but may also have non-circulating reference collections or provide other library services; however, “Public Library” does not include any library primarily funded or managed by the federal government or an agency thereof.
1.122 “Publisher Sub-Class” means members of the Amended Settlement Class that are (a) companies that publish books, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees.
1.123 “Qualified User” means a Person who (a) wishes to conduct NonConsumptive Research, (b) is (i) affiliated with a Fully Participating Library or a Cooperating Library or (ii) a suitably qualified individual (1) who has the resources to perform such Non-Consumptive Research, (2) who has an affiliation described below, (3) who is pre-registered by a Fully Participating Library or a Cooperating Library (i.e., registered prior to conducting Non-Consumptive Research), and (4) for whose use of the Research Corpus such Fully Participating Library or Cooperating Library takes responsibility, and (c) is bound by an agreement described in Section 7.2(d)(xi)(2) (Research Agenda). A for-profit entity may only be a “Qualified User” if both the Registry and Google give their prior written consent. Except as set forth in the preceding sentence, a Qualified User must have an affiliation with one of the following:
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Amended Settlement Agreement

a)

an accredited United States two (2)- or four (4)-

year college or university;

b)

a United States not-for-profit research

organization, such as a museum, observatory or research lab;

c)

a United States governmental agency (federal,

state or local); or

d)

to the extent that an individual does not come

within clauses (a) through (c) above in this Section 1.123

(Qualified User), an individual may become a “Qualified User” by

demonstrating to a Fully Participating Library or a Cooperating

Library that he or she (directly or through the entities with which

he or she is affiliated) has the necessary capability and resources to

conduct Non-Consumptive Research, provided that such individual

(or the entities with which he or she is affiliated) may be required

by the Registry to enter into other terms and conditions with

respect to such Non-Consumptive Research and the commercial

exploitation of any of the results thereof consistent with the

restrictions set forth in this Amended Settlement Agreement.

1.124 “Registered Rightsholder” means any Person who is a Rightsholder and who has registered with the Registry his, her or its Copyright Interest in a Book or Insert.

1.125 “Registry” means the registry established pursuant to ARTICLE VI — (Establishment and Charter of Registry). In addition, the term “Registry” means the Settlement Administrator until such time as the Registry is fully operational.

1.126 “Removed” means, with respect to a Book that is removed pursuant to Section 3.5(a) (Right to Remove) and subject to Section 3.5(b)(vi) (Continuing Obligations), that, other than on back-up tapes or other electronic back-up storage media,

(a)

if the request is made on or before April 5, 2011,

Digital Copies of the Book are not accessible to Google or Fully

Participating Libraries; and

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Amended Settlement Agreement

(b)

if the request is made after April 5, 2011, but on or

before March 9, 2012, Digital Copies of the Book are not accessible

to Google except that Google may use Digital Copies for the purpose

of (i) providing Digital Copies, as authorized under this Amended

Settlement Agreement, and making ongoing technological updates

for Fully Participating Libraries and Host Sites and (ii) acting as a

Host Site as authorized by Section 7.2(d)(ii) (Host Sites).

“Remove” and “Removal” have corresponding meanings.

1.127 “Representative Plaintiffs” means the following Persons, who, subject to Court approval, represent the Author Sub-Class: Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, Herbert Mitgang, Maureen Duffy, Daniel Jay Baum, Margaret Drabble and Robert Pullan; and the following Persons, who, subject to Court approval, represent the Publisher Sub-Class: The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc., Harlequin Enterprises Limited, Macmillan Publishers Limited, Melbourne University Publishing Limited and The Text Publishing Company.

1.128 “Requesting Fully Participating Library” has the meaning set forth in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).

1.129 “Required Library Services” has the meaning set forth in Section 7.2(e)(i) (Obligation).

1.130 “Required Library Services Requirement” means the requirement set forth in Section 7.2(e)(i) (Obligation).

1.131 “Research Agenda” means a document that describes a research project in sufficient detail to demonstrate that it will be Non-Consumptive Research.

1.132 “Research Corpus” means a set of all Digital Copies of Books made in connection with the Google Library Project, other than Digital Copies of Books that have been Removed by Rightsholders on or before April 5, 2011 pursuant to Section 3.5 (Right to Remove or Exclude) or withdrawn pursuant to Section 7.2(d)(iv) (Right to Withdraw Library Scans), which Google provides to a Host Site or that Google, if and as a Host Site, uses.

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Amended Settlement Agreement

1.133 “Revenue Models” means Institutional Subscriptions, Consumer Purchases, Advertising Uses, Public Access Service and any other revenue models agreed between the Registry and Google pursuant to Section 4.7 (Additional Revenue Models).
1.134 “Rightsholder” means a member of the Amended Settlement Class who does not opt out of the Settlement by the Supplemental Opt-Out Deadline.
1.135 “Rightsholder Releasors” has the meaning set forth in Section 10.1(m) (Rightsholder Releasors).
1.136 “Security Implementation Plan” means an implementation plan describing the processes and procedures that Google, a Fully Participating Library, or a Host Site, as the case may be, will employ in order to comply with the Security Standard.
1.137 “Security Representatives” has the meaning set forth in Section 8.2(b) (Changes to Security Standard).
1.138 “Security Standard” means the security standard set forth in Attachment D (Security Standard).
1.139 “Settlement” means the settlement of the Action as set forth in this Amended Settlement Agreement.
1.140 “Settlement Administration Program” means the Settlement administration program described in Article XIII (Settlement Administration Program).
1.141 “Settlement Administrator” means Rust Consulting, Inc.
1.142 “Settlement Agreement” means the original Settlement Agreement and all of its attachments, as filed with the Court on October 28, 2008.
1.143 “Settlement Controlled Price” has the meaning set forth in Section 4.2(b)(i)(2) (Settlement Controlled Price).
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Amended Settlement Agreement

1.144 “Settlement Discussions Confidentiality Agreement” means the Settlement Discussions Confidentiality Agreement dated August 18, 2006 between Google and certain representatives of Plaintiffs.
1.145 “Settlement Fund” means the Initial Settlement Deposit, the Final Settlement Deposit and the Supplemental Deposit, and all interest accrued thereon. The Settlement Fund will be held and administered in an account at the Depository Bank.
1.146 “Settlement Website” has the meaning set forth in Article XII (Class Notice Program).
1.147 “Snippet Display” means uses that display to users of Google Products and Services up to three (3) “snippets” (each snippet being about three (3) to four (4) lines of text) per search term per user.
1.148 “Standard Preview” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).
1.149 “Specified Price” has the meaning set forth in Section 4.2(b)(i)(1) (Specified Price).
1.150 “Standard Revenue Split for Advertising” has the meaning set forth in Section 4.5(a)(ii) (Net Advertising Revenues).
1.151 “Standard Revenue Split for Purchases” has the meaning set forth in Section 4.5(a)(i) (Net Purchase Revenues).
1.152 “Standard Revenue Splits” has the meaning set forth in Section 4.5(a)(iii) (Agreed Revenue Splits).
1.153 “Summary Notice” has the meaning set forth in Article XII (Class Notice Program).
1.154 “Supplemental Deposit” has the meaning set forth in Section 5.3(c) (Supplemental Deposit).
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Amended Settlement Agreement

1.155 “Supplemental Notice” has the meaning set forth in Article XII (Class Notice Program).

1.156 “Supplemental Opt-Out Deadline” means the deadline fixed by the Court to opt out of the Amended Settlement Agreement pursuant to Rule 23 of the Federal Rules of Civil Procedure.

1.157 “Third-Party Required Library Services Provider” has the meaning set forth in Section 7.2(e)(ii) (Third-Party Required Library Services Provider).

1.158 “Third-Party Unauthorized Access” means any access (other than Prohibited Access) by any third party to any Digital Copy of a Book that is not authorized by this Amended Settlement Agreement, the applicable Library-Registry Agreement, or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.

1.159 “Unauthorized Access” means any display or reproduction in the United States by Google of any Digital Copy of a Book or Insert that is not authorized by this Amended Settlement Agreement or the Rightsholder.

1.160 “Unclaimed Works Fiduciary” has the meaning set forth in Section 6.2(b) (Organizational Structure).

1.161 “Unclaimed Funds” has the meaning set forth in Section 6.3(a)(Unclaimed Funds).

1.162 “United States” or “U.S.” means the states and territories, the District of Columbia, and the possessions of the United States of America.

ARTICLE II — SETTLEMENT BENEFITS – OVERVIEW AND AUTHORIZATIONS

2.1 Benefits to the Amended Settlement Class – Overview.

(a)

Google Book Search. Google is authorized to, in

the United States, sell subscriptions to the Institutional Subscription

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Amended Settlement Agreement

Database, sell individual Books, place advertisements on Online Book Pages, and make other commercial uses of Books, all as further described in this Amended Settlement Agreement. Google shall pay to the Registry, for the benefit of the Rightsholders, seventy percent (70%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Amended Settlement Agreement, less ten percent (10%), for Google’s operating costs, deducted from such revenues prior to such calculation (i.e., sixty-three percent (63%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Amended Settlement Agreement). The Registry will distribute the revenues to Rightsholders pursuant to the provisions of the Plan of Allocation.

(b)

Cash Payment. Google shall pay a minimum of

forty-five million United States dollars (U.S. $45 million) into the

Settlement Fund to pay Amended Settlement Class members whose

Books and Inserts have been Digitized on or before May 5, 2009.

Such forty-five million United States dollars (U.S. $45 million) will

be distributed from the Settlement Fund in the form of Cash

Payments of at least sixty United States dollars (U.S. $60) per

Principal Work; fifteen United States dollars (U.S. $15) per Entire

Insert; and five United States dollars (U.S. $5) per Partial Insert in

accordance with the Plan of Allocation. To the extent that funds

greater than forty-five million United States dollars (U.S. $45

million) are required in order to pay every such Amended Settlement

Class member his, her or its Cash Payment, Google shall make an

additional payment to enable such Cash Payments to be made to the

Rightsholders from the Settlement Fund. To the extent funds remain

from the forty-five million United States dollars (U.S. $45 million)

after all Cash Payments are made, such excess will be distributed

pursuant to the Plan of Allocation.

(c)

Registry/Notice/Claims Administration Funding.

Google is obligated to pay thirty-four and one-half million United

States dollars (U.S. $34.5 million) (of which twelve million United

States dollars (U.S. $12 million) has been paid) to fund the launch

and the initial operations of the Registry and to fund other

Administrative Costs. The Registry will be responsible for locating

and collecting information from Rightsholders, identifying and

coordinating payments to Rightsholders, and otherwise representing

24
Amended Settlement Agreement

the interests of Rightsholders under this Amended Settlement Agreement.

(d)

Attorneys’ Fees and Costs. Google shall pay

Plaintiffs’ attorneys’ fees and costs in accordance with Section 5.5

(Attorneys’ Fees).

(e)

Summary Only. This Section 2.1 (Benefits to the

Amended Settlement Class – Overview) is a summary of some of the

provisions of this Amended Settlement Agreement and is subject to

all of the other provisions of this Amended Settlement Agreement.

2.2 Authorization of Google, Fully Participating Libraries and Cooperating Libraries. In exchange for the benefits conferred in this Amended Settlement Agreement on Plaintiffs and Rightsholders, Rightsholders, as of the Effective Date, authorize (a) Google to make Display Uses and Non-Display Uses of their Books and Inserts in GBS and other Google Products and Services, (b) each Fully Participating Library to use its Library Digital Copy and (c) each Host Site to make the Research Corpus available, all in accordance with the terms and conditions of this Amended Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable. As of the Effective Date, Rightsholders authorize Google, the Fully Participating Libraries, the Cooperating Libraries and the Host Sites to engage in the activities, and only the activities, set forth in this Amended Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable, and only in accordance with such terms and conditions as are applicable to those activities; provided that the remedy for any breach of a term or condition of this Amended Settlement Agreement or a Library-Registry Agreement shall not be termination of such authorizations except as provided in Section 3.7(b) (Failure to Provide Contemplated Rightsholder Services). This Amended Settlement Agreement does not authorize Google, any Participating Library or any Host Site to make any uses of Books and Inserts other than those uses that are authorized under this Amended Settlement Agreement. This Amended Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (i) the use of any work or material that is in the public domain under the Copyright Act in the United States, (ii) the use of books in hard copy (such term does not include microform) format other than the creation and use of Digital Copies of Books and Inserts, or (iii) any Participating Library’s Digitization of Books if the resulting Digitized Books are neither provided to Google pursuant to this Amended Settlement Agreement nor included in any LDC, or the use of any such Digitized Books that are neither provided to Google pursuant to this Amended Settlement Agreement nor included in any LDC.

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Amended Settlement Agreement

2.3 Author-Publisher Procedures. All rights of Books Rightsholders under this Amended Settlement Agreement are subject to the Author-Publisher Procedures.
2.4 Non-Exclusivity of Authorizations. The authorizations granted to Google in this Amended Settlement Agreement are non-exclusive only, and nothing in this Amended Settlement Agreement shall be construed as limiting any Rightsholder’s right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Amended Settlement Agreement.
ARTICLE III — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND OBLIGATIONS

3.1 Digitization, Identification and Use of Books.

(a)

Non-Exclusive Digitization Rights. As of the

Effective Date, in the United States (i) Google may, on a non-

exclusive basis, Digitize all Books and Inserts obtained by Google

from any source (whether obtained before or after the Effective

Date), (ii) Fully Participating Libraries and Cooperating Libraries

may provide Books and Inserts to Google in hard copy (not including

microform) format to be Digitized (or in a form Digitized by or for

such Fully Participating Library or Cooperating Library), and (iii)

Google and Fully Participating Libraries may use such Books and

Inserts as provided in this Amended Settlement Agreement and the

Library-Registry (Fully Participating) Agreements. The

authorizations to use Books and Inserts provided for by this Amended

Settlement Agreement or a Library-Registry Agreement are not

transfers of copyright ownership to such Books or Inserts, and

nothing in this Amended Settlement Agreement or a Library-Registry

Agreement shall operate to transfer any copyright ownership in

Books or Inserts. The foregoing authorization for Google to Digitize

Books and Inserts includes authorization of Google’s contractors to

Digitize Books and Inserts for Google, including libraries that may

Digitize Books and Inserts, or portions thereof, at Google’s request.

(b) Works.

Identification of Digitized Books and Government

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Amended Settlement Agreement

(i)

List of Digitized Books and Government Works. Google

has previously provided Plaintiffs, in a form mutually agreed, with a list of

the Books, Public Domain Books with a copyright date after 1922 and

Government Works that Google has Digitized as of January 5, 2009 and the

date each Book, Public Domain Book with a copyright date after 1922 or

Government Work was Digitized by Google, and a separate list of all Books,

Public Domain Books with a copyright date after 1922 and Government

Works that Google reasonably anticipated it would Digitize on or before

May 5, 2009. On November 2, 2009, Google provided Plaintiffs with a final

list of all Books, Public Domain Books with a copyright date after 1922 and

Government Works that Google Digitized on or before May 5, 2009.

(ii)

Books Database. Google has made a searchable online

database available to members of the Amended Settlement Class through the

Internet (1) for the purpose of identifying all Books, Public Domain Books

with a copyright date after 1922 and Government Works that Google has

Digitized or reasonably anticipates that it might Digitize under this Amended

Settlement Agreement, and (2) for purposes of Article V (Other Settlement

Benefits), identifying whether such Books, Public Domain Books with a

copyright date after 1922 or Government Works have been Digitized as of

the Notice Commencement Date or Google reasonably anticipates that it

might Digitize such Books, Public Domain Books or Government Works on

or before May 5, 2009. Such database shall be referred to in this Amended

Settlement Agreement as the “Books Database.” The Books Database

supports queries by author, title, publisher, ISBN, and date of publication.

The inclusion of a work within the Books Database does not, in and of itself,

mean that the work is a Book within the meaning of Section 1.19 (Book).

(iii)

Books. Google will also allow members of the Amended

Settlement Class to submit bibliographic information (e.g., title, author, and

publication date) for Books not in the Books Database.

(iv)

Inserts.

(1)

Submission. The Books Database will allow each

member of the Amended Settlement Class to submit identifying

information regarding his, her or its Inserts, such as the Books, Public

Domain Books with a copyright date after 1922 or Government Works in

which such Inserts were published, the location of such Inserts within

Books, Public Domain Books with a copyright date after 1922 or

27
Amended Settlement Agreement

Government Works and any other identifying information about such Inserts (e.g., whether the Insert is an introduction, a foreword, etc.).

(2)

Insert Identification. For content that may be an Insert,

the Books Database will allow any Person who might be a member of the

Amended Settlement Class to submit a digital copy of his, her or its

content that may be an Insert or to otherwise identify such content that

may be an Insert, and Google will perform searches to identify Books,

Public Domain Books with a copyright date after 1922 or Government

Works, if any, that contain such submitted content. If Google identifies

any Books, Public Domain Books with a copyright date after 1922 or

Government Works that may contain such submitted content, Google will

notify such Person of such Books, Public Domain Books with a copyright

date after 1922 or Government Works in order to enable him, her or it to

determine whether the submitted content is an Insert in such Books, Public

Domain Books with a copyright date after 1922 or Government Works

and the pages on which such content appears. Google shall have no

liability for failure to identify an Insert under this Section 3.1(b)(iv)(2)

(Insert Identification).

3.2 Initial Display and No Display Book Classification.

(a)

General Guidelines. Pursuant to Section 3.2(b).

(Display/No Display Classification), Google and the Registry will

classify all Books in one of two categories, either Display Books, as

described in Section 3.3 (Display Books), or No Display Books, as

described in Section 3.4 (No Display Books).

(b)

Display/No Display Classification. Google will

initially classify a Book as No Display if it is determined to be

Commercially Available as of the Notice Commencement Date, and

Display if it is determined not to be Commercially Available as of the

Notice Commencement Date. A Rightsholder, Google, or the

Registry (pursuant to Section 3.2(e)(i) (Change Requests by

Rightsholders)), may change a Book’s classification as Display or No

Display as set forth in this Article III (Google Book Search – Rights,

Benefits and Obligations).

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Amended Settlement Agreement

(c)

Notification of Display/No Display Classification.

The Books Database will identify whether a Book has been classified

as a Display Book or a No Display Book.

(d)

Commercial Availability, In Print/Out of Print and

Public Domain Determination.

(i)

Basis for Determination. Google shall determine whether

a Book is Commercially Available or not Commercially Available based on

its analysis of multiple third-party databases as well as its analysis of the

Book’s retail availability based on information that is publicly available to it

on the Internet. Google will use third-party databases from a range of United

States, Canadian, United Kingdom, and Australian sources that can be

obtained on fair and commercially reasonable terms. When analyzing the

third-party databases, Google will use the publishing status, product

availability and/or availability codes to determine whether or not the

particular database being used considers that Book to be Commercially

Available. When analyzing information that is publicly available to it on the

Internet, Google will determine retail availability by consulting various

sources to determine whether the Book is Commercially Available. Each of

these sources may contain errors; Google, however, shall use commercially

reasonable efforts to determine whether a Book is Commercially Available

or is not Commercially Available using a methodology reasonably agreed to

by Google and the Registry that is designed to minimize the overall error

rate. All Books for which Google does not have information from the

sources identified above will be determined to be not Commercially

Available. Rightsholders may provide information directly to Google that a

Book is Commercially Available when they submit their Claim Forms,

through the Books Database or, at any time after such submission, to Google

or the Registry. When Google receives such information from Rightsholders

or the Registry or Rightsholders otherwise assert that their Books are

Commercially Available, such Books promptly shall be classified as

Commercially Available. If Google reasonably believes that such

information or assertion is inaccurate, then Google may challenge the

classification pursuant to Article IX (Dispute Resolution).

(1)

In-Copyright Principal Work. If a Book’s Principal

Work is not in the public domain under the Copyright Act in the United

States and that Book is Commercially Available, then any other Book that

has the same Principal Work (such as a previous edition) is also deemed to

29
Amended Settlement Agreement

be Commercially Available, whether or not such other Book is at the time in question also Commercially Available.

(2)

Public Domain Principal Work. If a Book’s Principal

Work is in the public domain under the Copyright Act in the United

States, and that Book is Commercially Available and also contains an

Insert (i.e., content that qualifies as an Insert and is not in the public

domain under the Copyright Act in the United States), then any earlier

edition of such Book that contains such Insert is also deemed to be

Commercially Available.

(ii)

In-Print/Out-of-Print. Google’s initial determination of

whether or not a Book is Commercially Available will be used to initially

classify Books as “In-Print” or “Out-Of-Print,” as such classifications are

defined in the Author-Publisher Procedures, and only for purposes of the

Settlement. Google shall provide the Registry with the determination as to

whether a Book is Commercially Available as of the Notice Commencement

Date and thereafter from time to time. Classification of Books as In-Print or

Out-Of-Print pursuant to the terms of the Author-Publisher Procedures shall

be the responsibility of the Registry. If the Registry re-classifies a Book as

Out-Of-Print, the Registry will direct Google to change the classification of

the Book to a Display Book, which Google shall do within thirty (30) days

unless the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change

Requests by Rightsholders), expressly requests that the Book be treated as a

No Display Book. If the Registry re-classifies a Book as In-Print, the

Registry will direct Google to change the classification of the Book to a No

Display Book only upon the express request of the Rightsholder of the Book,

subject to Section 3.2(e)(i) (Change Requests by Rightsholders).

(iii)

Mistakes. If a Book was mistakenly determined by

Google not to be Commercially Available, then the Rightsholder of the Book

may notify Google, or may authorize the Registry to notify Google, of such

mistaken determination. To verify the claim, the Registry will provide, upon

Google’s reasonable request, information supporting any assertion by the

Rightsholder of the Book that the Book is Commercially Available. If the

Rightsholder asserts that the Book is Commercially Available, then, as

Google’s sole obligation and the Rightsholder’s sole remedy (subject to

Section 3.2(d)(iv) (Disputes)), Google promptly shall correct the

determination as to whether the Book is Commercially Available.

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Amended Settlement Agreement

(iv)

Disputes. The Registry and Google shall work together to

resolve any disputes regarding the determination of whether a Book is

Commercially Available. If they are unable to do so, then the dispute shall

be resolved pursuant to Article IX (Dispute Resolution). If the Arbitrator, in

such dispute, finds in favor of the Rightsholder, then Google shall pay the

Rightsholder’s reasonable attorneys’ fees and costs, including arbitration

costs.

(v)

Safe Harbor Public Domain Determination.

(1)

Safe Harbor Process. Attachment E (Public Domain)

sets forth the process by which Google may determine whether a book is a

Public Domain Book for the sole purpose of determining whether

Section 3.2(d)(v)(3) (Safe Harbor) is applicable. Attachment E (Public

Domain) may be amended by Google and the Registry from time to time if

Google develops and provides to the Registry additional or different

processes for determining whether a book is a Public Domain Book. If the

Registry reasonably believes that such processes do not identify Public

Domain Books accurately, then the Registry shall notify Google thereof.

Google shall respond to such notice within thirty (30) days, either by

modifying such process or by explaining how such process can reasonably

identify Public Domain Books accurately. Any disputes as to whether the

process can reasonably identify Public Domain Books for purposes of

determining the applicability of Section 3.2(d)(v)(3) (Safe Harbor) shall be

resolved pursuant to Article IX (Dispute Resolution).

(2)

List. Google shall identify to the Registry books that it

has determined to be Public Domain Books pursuant to the process set

forth in Attachment E (Public Domain) and for which Google wants the

safe harbor described in Section 3.2(d)(v)(3) (Safe Harbor). For each such

book, Google shall provide the supporting reasons and information that

Attachment E (Public Domain) requires. At any time, the Registry or a

Rightsholder may notify Google that it or a Rightsholder believes that any

such book is not a Public Domain Book (with supporting reasons and

information) and, upon receipt of such notice, Google shall promptly

review the supporting reasons and information and shall either (a) re-

classify the Book as in copyright or (b) notify the Registry and any

notifying Rightsholder that Google continues to believe the book is a

Public Domain Book. Any disputes with respect to whether a book is a

Public Domain Book shall be resolved pursuant to Article IX (Dispute

Resolution); in any such dispute, the burdens of proof as to whether the

31
Amended Settlement Agreement

book is in copyright or in the public domain under the Copyright Act in the United States (and the allocation and shifting of such burdens) shall be as if the action were one for copyright infringement brought under the Copyright Act.

(3)

Safe Harbor. If, with respect to a book, Google has

followed the process set forth in Attachment E (Public Domain) and

neither the Registry nor a Rightsholder has notified Google pursuant to

Section 3.2(d)(v)(2) (List), then Google may treat such book as if it is in

the public domain under the Copyright Act in the United States for the

purposes of this Amended Settlement Agreement, and Google will have

no liability or obligation (a) for any use of such book to the extent that

such use would be authorized under this Amended Settlement Agreement

if such book were a Display Book or (b) for providing downloadable

versions of such book. If the Registry or a Rightsholder has notified

Google pursuant to Section 3.2(d)(v)(2) (List), Google otherwise obtains

actual knowledge that a Book is not in the public domain under the

Copyright Act in the United States, or a Book is determined to be in

copyright pursuant to Article IX (Dispute Resolution), then, commencing

five (5) Business Days from the date of such notice, knowledge or

determination, the foregoing limitation on Google’s liability or obligation

will not apply.

(e)

Change of Display/No Display Classification.

(i)

Change Requests by Rightsholders. For all Books, the

Registered Rightsholder of the Book or, for unclaimed Books, the Unclaimed

Works Fiduciary (subject to the last sentence of this Section 3.2(e)(i)

(Change Requests by Rightsholders)) may direct Google or the Registry to

change the classification of a Book or group of Books to a Display Book or

Display Books or to a No Display Book or No Display Books or to include

in, or, pursuant to Section 3.5 (Right to Remove or Exclude), exclude any or

all of his, her or its Books or group of Books from, one or more of the

Display Uses. In the event the Rightsholder directs that any of his, her or its

Books be included in one or more of the Display Uses, (1) the provisions of

Section 3.5(b)(iii) (Coupling Requirement) will apply to such Books, (2)

such Books will be considered Display Books, and (3) such Display Uses

will be deemed authorized. Google will implement a direction to change the

classification of a Book within thirty (30) days after Google receives notice

of such direction. The Registry shall be able to direct Google to change the

classification of a Book to a Display Book or a group of Books to Display

32
Amended Settlement Agreement

Books. A direction to change the classification of a Book to a No Display Book or a group of Books to No Display Books, however, must be initiated by the Rightsholder of the Book or Books.

(ii)

Change Requests by Google. At any time after one (1)

year from the Final Approval Date, Google shall have the right to request

that the classification of a Book be changed to a Display Book if Google

believes that the Book is not Commercially Available at that time, or if

Google believes that a mistake was made in initially determining the Book to

be Commercially Available. Upon receipt of such a request from Google,

the Registry shall have one hundred and twenty (120) days to attempt to

contact the Rightsholder of the Book to inform such Rightsholder of such

request and/or collect evidence with respect to whether the Book is

Commercially Available. The Registry shall notify Google if it is able to

contact such Rightsholder and will inform Google whether such

Rightsholder wants the Book to remain classified as a No Display Book. If

the Rightsholder of the Book provides evidence that the Book is

Commercially Available or otherwise directs Google that he, she or it wants

the Book to remain a No Display Book, or if the Registry otherwise

determines that the Book is Commercially Available, then the Registry will

notify Google, and Google will not change the classification of the Book to a

Display Book at that time on that basis. If, by the end of the one hundred

twenty (120)-day period, the Registry is unable to contact the Rightsholder

or to find accurate evidence regarding whether the Book is Commercially

Available, then the Registry shall inform Google and Google may change the

classification of the Book to a Display Book, subject to Section 3.5 (Right to

Remove or Exclude).

3.3 Display Books.

(a)

Display and Non-Display Uses. Subject to Section

3.5 (Right to Remove or Exclude) and Section 4.3 (Preview Uses),

Google may make Display Uses and Non-Display Uses of all Display

Books; provided, however, that Google will not make Display Uses

of any Book that Google has classified as not Commercially

Available until the later of the Effective Date or sixty (60) days after

notifying the Registry that Google has classified such Book as not

Commercially Available. If, within such sixty (60)-day period, a

dispute under Section 3.2(d)(iv) (Disputes) arises between the

Rightsholder or the Registry and Google regarding whether such

Book is Commercially Available, Google will not make Display Uses

33
Amended Settlement Agreement

of the Book unless and until Google prevails under Article IX (Dispute Resolution).

(b)

Inserts in Display Books. If a Book is classified as

a Display Book, then, subject to Section 3.5 (Right to Remove or

Exclude), Google may make Display Uses and Non-Display Uses of

all Inserts in such Book. If a Book is classified as a No Display

Book, then all Inserts in that Book are also subject to Section 3.4 (No

Display Books).

(c)

Inserts in Government Works and Public Domain

Books. Google may use all Inserts in Government Works and Public

Domain Books in connection with any uses of such Government

Works and Public Domain Works in Google Products and Services,

subject to Section 3.5(b) (Right to Exclude from Display Uses and

Revenue Models).

(d)

Accommodation of Print Disabilities. Google may

provide the Display Uses in a manner that accommodates users with

Print Disabilities so that such users have a substantially similar user

experience as users without Print Disabilities.

(e)

Change to No Display. Rightsholders of Books

may, pursuant to Section 3.2(e)(i) (Change Requests by

Rightsholders), direct Google or the Registry to change the

classification of a Display Book to a No Display Book.

(f)

Author Landing Page Links. If, in any Display

Use of a Book in GBS for which Display Use is authorized pursuant

to this Amended Settlement Agreement, Google presents any web

page (i) dedicated to an individual author that includes hyperlinks to

that author’s Books and other features, or (ii) with content from a

Book that includes a hyperlink to the website of the publisher of such

Book, then Google will also include on such page a hyperlink (or

similar or appropriate technology) to that author’s website, in either

case only if (1) the Registry provides Google with such hyperlink,

and (2) such website promotes the author’s works, or provides

relevant information about the author, and is otherwise appropriate

for such purposes; provided that Google may remove any such

34
Amended Settlement Agreement

hyperlink if Google becomes aware that such hyperlink no longer functions to link to such website.

(g)

Display Use Attributes. With respect to their

Display Books, Google and the Rightsholders may negotiate and

Rightsholders may authorize Google to modify or remove the

restrictions that are placed on Google in Section 4.1(d) (Basic

Features of Institutional Subscriptions) and 4.2(a) (Basic Features of

Consumer Purchase), and comparable restrictions that may apply to

additional Revenue Models that may be agreed pursuant to Section

4.7 (Additional Revenue Models).

3.4 No Display Books.

(a)

Non-Display Uses. Subject to Section 3.5 (Right

to Remove or Exclude), Google may make Non-Display Uses of all

No Display Books.

(b)

Change to Display. Rightsholders of Books may,

pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders),

direct Google or the Registry to change the classification of a No

Display Book to a Display Book, or to include any or all of their No

Display Books in one or more of the Display Uses, in which case

such Books will then be considered to be Display Books, and Article

IV (Economic Terms for Google’s Use of Books) shall apply.

3.5 Right to Remove or Exclude.

(a)

Right to Remove.

(i)

Right to Remove. A Rightsholder of a Book may direct

that his, her or its Book not be Digitized, or if already Digitized, that the

Book be Removed. If a Book has not yet been Digitized when Google

receives a Removal request for that Book, Google will use reasonable efforts

not to Digitize that Book, but, in any event, will comply with the request to

Remove. Google will implement a Rightsholder’s Removal direction as

soon as reasonably practicable, but in any event no later than thirty (30) days

after notice from the Registry, and in accordance with Section 3.5(b) (Right

35
Amended Settlement Agreement

to Exclude from Display Uses and Revenue Models), will simultaneously act promptly to exclude a Book for which it has received a Removal request. A Fully Participating Library will implement a Rightsholder’s Removal direction for a Book as soon as reasonably practicable, but in any event no later than ninety (90) days after notice from the Registry.

(ii)

Back-up Storage. Google and Fully Participating

Libraries may maintain Books on back-up tapes or on any other back-up

storage media subject to compliance with the Security Standard. If any

back-up tape or other back-up storage media containing such Book is

restored, then any Book that has been Removed pursuant to Section 3.5(a)(i)

(Right to Remove) shall also be Removed from any copy made from the

back-up tape or other back-up storage media.

(iii)

Limitations on Right to Remove. The right to Remove

under Section 3.5(a)(i) (Right to Remove) is limited to requests made on or

before April 5, 2011 for Removal as described in Section 1.126(a)

(Removed) or after April 5, 2011 but on or before March 9, 2012, for

Removal as described in Section 1.126(b) (Removed). Thereafter, requests

will be honored only to the extent that the Books have not yet been Digitized

as of the date the request is made; if the Books at issue have already been

Digitized, the Rightsholder may request exclusion from particular Display

Uses (under Section 3.5(b)(i) (Right to Exclude)) but not Removal (under

Section 3.5(a)(i) (Right to Remove)).

(b) Models.

Right to Exclude from Display Uses and Revenue

(i)

Right to Exclude. Any Rightsholder of a Book at any

time may direct Google or the Registry to exclude his, her or its Book, or any

portion thereof, from any one or more, or all, Display Uses, Revenue Models

or the Book Annotation sharing feature under Section 3.10(c)(ii) (Hyperlinks

and Book Annotations), and any Rightsholder of an Insert at any time may

direct that his, her or its Insert, or any portion thereof, be excluded from all

(but not less than all) Display Uses; provided that any Rightsholder of an

Insert may only direct that his, her or its Insert, or any portion thereof, be

excluded but not the entire Book, Public Domain Book or Government Work

in which its Insert is contained. Google shall implement any such direction

as follows. Google will implement a Rightsholder’s exclusion direction

promptly, but in any event no later than thirty (30) days after notice from the

36
Amended Settlement Agreement

Registry or from resolution of the dispute in favor of such Rightsholder (in the case of a challenge under Section 3.5(b)(ii) (Challenging Insert Exclusion Requests) or Section 3.5(b)(vii) (Government Works and Public Domain Works)). Google shall use commercially reasonable efforts to develop a mechanism for excluding no more of Books or Inserts than Rightsholders direct. If, after using such commercially reasonable efforts, Google is unable to limit its exclusion to the Insert or portion of the Book or Insert directed by a Rightsholder, Google may exclude up to the entire page or pages on which such Insert or portion appears. If, however, Google or the Registry develops a tool that enables Rightsholders to specify with precision the location and amount of material in an Insert or portion of a Book or Insert that is less than an entire page and for which the Rightsholder has directed exclusion, Google shall, upon receipt of such direction, exclude such Inserts or portions of Books or Inserts, but no more than that, from Display Uses as directed.

(1)

Exclusion from Library Digital Copy. Notwithstanding

Section 3.5(b)(i) (Right to Exclude), no Rightsholder may direct that his,

her or its Book or Insert be excluded from any Library Digital Copy

provided, however, that, in the case of a Book, a Rightsholder of the Book

may request Removal of such Book pursuant to Section 3.5(a) (Right to

Remove).

(ii)

Challenging Insert Exclusion Requests. The Rightsholder

of a Book that contains an Insert that the Rightsholder of the Insert has

directed be excluded may challenge such direction under law or contract

rights, and any dispute regarding such challenge shall be resolved pursuant to

Article IX (Dispute Resolution). In addition, if (a) the Rightsholder of a

Book that contains an Insert for which the Insert Rightsholder has directed

exclusion is not a Registered Rightsholder or (b) the Registered Rightsholder

of the Book that contains such Insert (1) determined not to challenge such

exclusion pursuant to the previous sentence and (2) does not object to

Google making such challenge, then Google may challenge whether the

Rightsholder of the Insert would have a right under the Copyright Act to

exclude such Insert. Google and the Registry will develop a process to

implement the foregoing. Any dispute regarding such challenge shall be

resolved pursuant to Article IX (Dispute Resolution).

(iii)

Coupling Requirement. Notwithstanding Section 3.5(b)(i)

(Right to Exclude), if the Rightsholder of any Library Work authorizes

Consumer Purchase or any additional Revenue Model that may be developed

pursuant to Section 4.7 (Additional Revenue Models) (except for any

37
Amended Settlement Agreement

additional Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) of or for such Library Work and Google uses a Library Scan of such Library Work for Consumer Purchase or for such additional Revenue Model, then the Rightsholder authorizes Google to include such Library Work in all Institutional Subscriptions (the “Coupling Requirement”); provided, however, that if a Library Work is Commercially Available as of the Notice Commencement Date or becomes Commercially Available at any time during the two (2)year period after the Notice Commencement Date, the Coupling Requirement will not apply to that Library Work; provided, further, that if, at any time after the end of such two (2)-year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google is using the Library Scan for Display Uses.

(iv)

Mistakes and the Coupling Requirement. If, as of the

Notice Commencement Date, a Library Work for which Google uses a

Library Scan for Consumer Purchase or any additional Revenue Model that

may be developed pursuant to Section 4.7 (Additional Revenue Models)

(except for any additional Revenue Model in which access to the Library

Scan of that Library Work is provided to users free of charge) is not

Commercially Available but Google mistakenly determined such Library

Work to be Commercially Available, and such Library Work does not

become Commercially Available at any time during the two (2)-year period

following the Notice Commencement Date, then, upon a determination that

the Library Work is not Commercially Available after such two (2)-year

period, the Coupling Requirement will apply to such Library Work if Google

is using a Library Scan for Display Uses. If, as of the Notice

Commencement Date or at any time during the two (2)-year period following

the Notice Commencement Date, such Library Work is mistakenly

determined to be not Commercially Available, then, upon determination that

the Library Work is Commercially Available, the Coupling Requirement will

not apply to such Library Work; provided, however, that if, at any time after

the end of such two (2)-year period, the Library Work ceases to be

Commercially Available, then the Coupling Requirement shall thereafter

apply to such Library Work if Google uses a Library Scan for Display Uses.

(v)

Waiver of Coupling Requirement. Google and the

Registry may, with the consent of a Fully Participating Library or a

Cooperating Library, agree to waive the Coupling Requirement as to Library

Works of which such Fully Participating Library or Cooperating Library is

the source and for which Google uses a Library Scan for Display Uses;

38
Amended Settlement Agreement

provided, however, that for any Library Work for which a Library Scan is constructed from more than one physical copy of a Library Work, such waiver requires the consent of all Fully Participating Libraries and Cooperating Libraries that are the source of copies of such Library Work. Any Fully Participating Library and Cooperating Library may also agree to such a waiver in its Digitization Agreement with Google or upon notice to Google, in which event Google shall notify the Registry of such waiver. Google and the Registry may, with the consent of all of the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, agree to waive the Coupling Requirement as to all Library Works subject to the Coupling Requirement.

(vi)

Continuing Obligations. If Google is authorized to make

a Display Use of a Book and, subsequent to such authorization, a

Rightsholder Removes such Book or excludes such Book or an Insert

contained therein, Google shall cease such Display Use except that Google

may make such Display Use of such Book or Insert to the extent necessary to

fulfill its obligations as of the date of such Removal or exclusion request to

any user who previously purchased access to or use of the Book through any

Institutional Subscription (for a period not to exceed ten (10) months or the

term of the Institutional Subscription, whichever is less, after the date of such

Removal or exclusion request) or Consumer Purchase or any substantially

similar Google Product or Service based on authorizations granted to Google

under a separate agreement entered into directly with the Rightsholder.

(vii)

Government Works and Public Domain Works. If a

Rightsholder of an Insert in a Government Work or a Public Domain Book

(not an Insert in a Book) directs Google to exclude its Insert from Display

Uses, Google may elect to reject such direction. In the event of such a

rejection, such Rightsholder may, notwithstanding any release in this

Amended Settlement Agreement, bring either a judicial action in United

States federal court against Google with respect to Google’s use of the Insert,

in which judicial action the Rightsholder may seek to recover any and all

relief available pursuant to the Copyright Act or, alternatively, the

Rightsholder may initiate dispute resolution under Article IX (Dispute

Resolution) with respect to Google’s rejection of the Rightsholder’s

direction. If the Rightsholder prevails in such arbitration, (i) the Arbitrator

shall issue an order prohibiting Google from making any and all Display

Uses of such Insert that the Arbitrator determines would be an infringement

of such Rightsholder’s Copyright Interest, (ii) Google shall pay the

Rightsholder’s reasonable attorneys’ fees and costs, including the cost of the

arbitration, and (iii) the foregoing and any other injunctive relief deemed

39
Amended Settlement Agreement

appropriate by the Arbitrator shall be Google’s sole obligation and the Rightsholder’s sole remedy for rejecting the Rightsholder’s direction for exclusion of its Insert in a Government Work or Public Domain Book from Display Uses (in addition to any award of injunctive relief, to prevent a continuing infringement of such Rightsholder’s Copyright Interest in his, her or its Insert, that may be awarded by the Arbitrator). Pending the Decision of the Arbitrator, Google shall stop any and all Display Uses of the Insert.

(c)

Take-Down or Transfer Requests.

(i)

Definitions. As used in this Section 3.5(c) (Take-Down or

Transfer Requests), the following terms have the following meanings:

(1)

“Counter-Notice” means a request, in the form of notice

attached as Exhibit B to the Author-Publisher Procedures, that states,

under penalty of perjury, that the Initial Authorizing Rightsholder has the

good faith belief that he, she or it has rights in a Book that is the subject of

a Take Down Request or a Transfer Request necessary to authorize

Google to exploit such Book as it is being exploited in such Other Google

Program.

(2)

“Educational Books” means Books that, when

published, were intended primarily for sale to educational markets (i.e., K-

12, higher education, continuing education, vocational, professional, self-

study, and similar educational markets) for use in educational programs.

(3)

“Initial Authorizing Rightsholder” means the Person

who had given Google permission to use a Book that is the subject of a

Take Down Request or a Transfer Request.

(4)

“Notifying Rightsholder” means a Rightsholder who

has a good faith belief that Google is exploiting a Book in an Other

Google Program without the necessary authorization from such

Rightsholder.

(5)

“Other Google Program” means a Google program

other than, but similar to, the Revenue Models, including the Google

Partner Program.

40
Amended Settlement Agreement

(6)

“Take Down Request” means a request, in the form of

notice attached as Exhibit A to the Author-Publisher Procedures, that

Google remove a Book from an Other Google Program.

(7)

“Transfer Request” means a request, in the form of

notice attached as Exhibit A to the Author-Publisher Procedures, to

transfer a Book from an Other Google Program to one or more Display

Uses in one or more of the Revenue Models.

(ii)

Procedures. The following procedures will apply to each

Book classified as In-Print under the Author-Publisher Procedures (except

for Educational Books) that is the subject of a contract between an author

and a publisher regarding publication of such Book executed prior to 1992

and that has not been amended thereafter to expressly grant or retain all

electronic rights pertinent to an Other Google Program if such Book is

displayed in an Other Google Program.

(1)

If Google receives a Take Down Request or a Transfer

Request from the Registry, Google shall send a copy to the Initial

Authorizing Rightsholder.

(2)

If the Initial Authorizing Rightsholder fails to respond

within thirty (30) days, then, if the request satisfies the requirements set

forth in the Author-Publisher Procedures, Google shall take down such

Book or transfer such Book into the Revenue Models, as specified in the

request. If Google transfers such Book into the Revenue Models, such

Book shall become subject to this Amended Settlement Agreement.

(3)

If the Initial Authorizing Rightsholder responds to a

Take Down Request by filing a Counter-Notice, the Registry will forward

the Counter-Notice to Google and the Notifying Rightsholder. If the

Counter Notice requirements set forth in the Author-Publisher Procedures

are met, Google may, in its discretion, take down, maintain or restore

access to such Book in the Other Google Program.

(4)

If the Initial Authorizing Rightsholder responds to a

Transfer Request by filing a notice of objection with the Registry, then

Google shall not include such Book in the Revenue Models and shall stop

displaying such Book in the Other Google Program while the Notifying

41
Amended Settlement Agreement

Rightsholder and the Initial Authorizing Rightsholder resolve the dispute. Google shall only restore access to such Book in any of the Revenue Models or the Other Google Program once (a) the Initial Authorizing Rightsholder and the Notifying Rightsholder jointly authorize Google to do so or (b) either the Initial Authorizing Rightsholder or the Notifying Rightsholder obtains a court (or, if the contract between the author and publisher regarding publication of such Books permits, arbitration) ruling giving it authority to direct Google to do so.

(5)

In any disputes between an Initial Authorizing

Rightsholder and a Notifying Rightsholder over which of them has the

right to authorize Google to exploit a Book in the Other Google Program

or in the Revenue Models, Google will not be named as a party or brought

into the dispute in any manner and will have no liability or responsibility

with respect to any such dispute.

3.6 Technical Adaptations. Except with respect to Books Removed under Section 3.5(a) (Right to Remove), Google may make technical adaptations to (but not adapt or alter the content of) all Books (whether Display or No Display) and Inserts as reasonably necessary to preserve, maintain, manage, and keep technologically current its copies of the Books and Inserts.
3.7 Contemplated Rightsholder Services.

(a)

Obligation. Google shall implement both of the

Contemplated Rightsholder Services (i.e., Institutional Subscriptions

and Consumer Purchases) within five (5) years after the Effective

Date. If Google discontinues both of the Contemplated Rightsholder

Services prior to the fifth (5th) anniversary of the Effective Date,

Google shall implement comparable replacement monetization

opportunities for the Rightsholders within a period of one year from

the date that Google discontinues the Contemplated Rightsholder

Services. Google’s sole obligation and the sole remedy for any

failure under this Section 3.7(a) (Obligation) is set forth in Sections

3.7(b) (Failure to Provide Contemplated Rightsholder Services)

through (d) (Third-Party Required Library Services Provider).

(b)

Failure to Provide Contemplated Rightsholder

Services. If (i) Google fails to implement either of the Contemplated

Rightsholder Services within five (5) years after the Effective Date or

42
Amended Settlement Agreement

(ii) Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, Google’s right to make any and all Non-Display Uses and Display Uses shall terminate ninety (90) days after notice to Google by the Registry, except as may be authorized by the Registry; provided, however, that if Google subsequently offers one of the Contemplated Rightsholder Services, Google’s rights to make any and all Non-Display Uses and Display Uses shall be immediately re-instated. Notwithstanding the foregoing, if Google believes that any actions or inactions of the Registry have proximately caused Google to fail to provide the Contemplated Rightsholder Services, then Google will provide the Registry with notice describing the Registry’s actions or inactions within such ninety (90)-day notice period, and the Registry’s notice of termination will have no effect and Google may continue to make any and all Non-Display Uses and Display Uses. Any dispute over whether any action or inaction of the Registry has proximately caused Google to fail to provide the Contemplated Rightsholder Services shall be subject to the dispute resolution provisions of Article IX (Dispute Resolution) and Google may make any and all Non-Display and Display Uses pending the Decision of the Arbitrator.

(c)

Additional Contemplated Rightsholder Services

Provider. In addition, if (i) Google fails to implement both of the

Contemplated Rightsholder Services within five (5) years after the

Effective Date or (ii) Google discontinues both of the Contemplated

Rightsholder Services and does not implement comparable

replacement monetization opportunities for the Rightsholders within

a period of one year from the date that Google discontinues the

Contemplated Rightsholder Services, then, in either case, the

Registry on the one hand and/or the Fully Participating Libraries and

the Cooperating Libraries on the other hand, acting reasonably, may

work to find one or more provider(s) that can provide Consumer

Purchases, Institutional Subscriptions and/or the additional Revenue

Models listed in Section 4.7 (Additional Revenue Models), and/or

Required Library Services, on substantially the same terms described

in this Amended Settlement Agreement. Any such arrangement shall

be subject to the consent of the Registry, on the one hand, and the

Fully Participating Libraries and the Cooperating Libraries acting

43
Amended Settlement Agreement

through the Designated Representative, on the other hand (but in the case of the Fully Participating Libraries and the Cooperating Libraries only as to Library Scans), which consent of the Registry and the Fully Participating Libraries and the Cooperating Libraries shall not be unreasonably withheld or delayed (any such provider is referred to in this Amended Settlement Agreement as an “Additional Contemplated Rightsholder Services Provider”). If an Additional Contemplated Rightsholder Services Provider is identified and the foregoing required consent is obtained, then Google will provide such Additional Contemplated Rightsholder Services Provider with Digital Copies of the Library Scans (so long as the Digital Copies are not restricted from further distribution under the Digitization Agreement between Google and a Fully Participating Library or a Cooperating Library) and Digital Copies of other Books that may be provided by Google without restriction. Such Digital Copies may be used by the Additional Contemplated Rightsholder Services Provider solely to provide the Contemplated Rightsholder Services and/or the additional Revenue Models listed in Section 4.7 (Additional Revenue Models) and/or Required Library Services in accordance with the terms of this Amended Settlement Agreement and, in addition, with respect to Digital Copies of Library Scans only, the terms of Google’s agreements with each of the Fully Participating Libraries and the Cooperating Libraries. Such Additional Contemplated Rightsholder Services Provider is, in connection with any Claim arising out of its making available Digital Copies of Books, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).

(d)

Third-Party Required Library Services Provider.

If Google provides a Digital Copy of the Library Scans to a Third-

Party Required Library Services Provider under Section 7.2(e)

(Required Library Services Requirement), then the Contemplated

Rightsholder Services may also be provided by the Third-Party

Required Library Services Provider in addition to the Required

Library Services, and Google will have no obligation to provide

Contemplated Rightsholder Services and will have no liability or

obligation with respect to Contemplated Rightsholder Services

provided by the Third-Party Required Library Services Provider.

(e)

Google’s Exclusion of Books. Google may, at its

discretion, exclude particular Books from one or more Display Uses

for editorial or non-editorial reasons. However, Google’s right to

exclude Books for editorial reasons (i.e., not for quality, user

44
Amended Settlement Agreement

experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google. Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry’s use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality.

(i)

Digital Copy of Excluded Books. Google will provide to

the Registry a Digital Copy of any Book that Google excludes for editorial

reasons. The Registry may, subject to Section 3.5 (Right to Remove or

Exclude), engage, with the consent (not to be unreasonably withheld) of the

Fully Participating Library or the Cooperating Library from which the

Library Scan of such Book was made (including, if Google constructed a

Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating

Library Collections) from one or more physical Books, all such libraries that

were the source of such physical Books), a Third-Party Required Library

Services Provider that, once engaged, may make available to users a Digital

Copy of that Book for uses comparable to Display Uses and Non-Display

Uses; provided that, if a Book is not then Commercially Available and the

Third-Party Required Library Services Provider makes available the Book

for a fee, then the Third-Party Required Library Services Provider must also

offer the Required Library Services (Section 7.2(e) (Required Library

Services Requirement)) for the Book to the extent required by such Fully

Participating Library or Cooperating Library. Such Third-Party Required

Library Services Provider is, in connection with any Claim arising out of its

making available such Digital Copy of the Book, deemed to be a successor

of Google for purposes of Section 10.1(g) (Google Releasees).

3.8 Effect of Changes in Law. Google will be able to take advantage of any future legislative change(s), such as legislation allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Amended Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8 (Effect of Changes in Law).

45
Amended Settlement Agreement

3.9 Distribution Arrangements. When Google may make any Snippet Display of a Book under this Amended Settlement Agreement, Google may also allow third parties that have entered into agreements with Google (a) to display snippets served by Google on their websites in response to user interactions on their websites and (b) to cache temporarily snippets transmitted by Google as described in the foregoing clause (a) for future display on their websites in response to user interactions on their websites.
3.10 Specific Prohibitions.

(a)

Prohibitions on Display. Except as expressly

permitted by this Amended Settlement Agreement or otherwise by

Registered Rightsholders or, for unclaimed works, by the Unclaimed

Works Fiduciary, Google shall not (i) display any Expression from

Books or Inserts; (ii) display any Expression from Books or Inserts in

a manner that would constitute a derivative work of such Books or

Inserts under the Copyright Act; or (iii) display summaries or

abstracts of, or compilations from, Books or Inserts created using

Digital Copies.

(b)

Prohibitions on Linking. Except as expressly

permitted by this Amended Settlement Agreement or otherwise by

Registered Rightsholders or, for unclaimed Books, by the Unclaimed

Works Fiduciary, Rightsholders or the Registry, Google shall not

create hyperlinks to Preview Use Book pages permitted by the terms

of this Amended Settlement Agreement from revenue generating

products or services if the effect of those links in the aggregate is to

detract from revenue under this Amended Settlement Agreement that

the Rightsholder(s) of such Book(s) would realize if the links did not

exist, unless such services or products (i) are search services

(including, for example, Google Web Search, Google Earth and other

Google services that show search results by browsing instead of by

entering a search query), or (ii) have the effect of making discovery

of Books easier, more efficient, more widespread, or more useful. If

Plaintiffs or any Rightsholders believe that this Section 3.10(b)

(Prohibitions on Linking) has been violated, as Plaintiffs’ and

Rightsholders’ sole remedy and Google’s sole obligation, the

Registry will notify Google of the existence of such links and if it is

agreed or an Arbitrator, pursuant to Article IX (Dispute Resolution),

determines that this Section 3.10(b) (Prohibitions on Linking) has

been violated, Google will expeditiously remove said links or come

to a separate agreement with the Registry to permit them.

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Amended Settlement Agreement

(c)

Integrity of the Text.

(i)

No Alteration of Text. Except as expressly authorized by

the Registered Rightsholder or, for unclaimed works, by the Unclaimed

Works Fiduciary, or in this Amended Settlement Agreement, Google may

not intentionally alter the text of a Book or Insert when displayed to users.

Changes in the formatting or presentation of text are not considered to be

alteration of the text, e.g., for the Accommodated Service.

(ii)

Hyperlinks and Book Annotations. Except as expressly

authorized by the Registered Rightsholder or, for unclaimed Books, by the

Unclaimed Works Fiduciary, Google may not add hyperlinks to any content

within a page of a Book or facilitate the sharing of Book Annotations, except

that Google may:

(1)

add hyperlinks within the Book for specific internal

references from text contained within the Book to other sections of the

Book, such as from a table of contents entry to the referenced page, from a

page number in the index to the page, or from internal references in the

Book to footnotes, endnotes, bibliographical material, appendices, figures,

and illustrations,

(2)

add a hyperlink from an explicit reference in the Book

to an online version of an external source cited in a footnote, endnote, or

bibliographical material,

(3)

add a hyperlink to a URL that the Rightsholder

included in a Book,

(4)

temporarily highlight or otherwise emphasize words in

response to a user’s action, so long as such highlight or emphasis appears

only on the user’s monitor and/or on a page printed by such user, and

(5)

Subject to the Rightsholder’s right to exclude its Books

from the Book Annotation sharing feature, allow a user to make Book

Annotations for the user’s own personal use and to share those Book

Annotations with a limited number of other users, provided that the feature

47
Amended Settlement Agreement

that enables Book Annotations within Google Products and Services is subject to the following limitations:

a)

Book Annotations may not be shared with the

general public, and

b)

Book Annotations may not be accessible to any

user who has not expressly chosen to access it either by active

selection or by participation in a group such as a class for which

this feature is used, and

c)

Book Annotations may not be displayed with

the Book for other users who do not already have the right to view

the Book, and

d)

for sharing of a Book Annotation in connection

with Consumer Purchase, the user may only share such Book

Annotation with no more than twenty-five (25) individuals and the

user must identify (e.g., by name, login or user id) each individual

with whom such Book Annotation will be shared, and

e)

for sharing of a Book Annotation as part of an

Institutional Subscription, the user may only share such Book

Annotation with the following other users of such Institutional

Subscription: instructors and students in a single academic course

sharing such Book Annotation in connection with such course

during an academic year or with students of the same course

during a subsequent academic year, and employees of the

subscriber of the Institutional Subscription sharing such Book

Annotation in connection with a discrete work project during the

course of that project.

(iii)

Advertising Content. Google may not place on, behind or

over the contents of a Book or portion thereof (including on Preview Use

pages or Snippet Display pages), as displayed to a user, any pop-up, pop-

under, or any other types of advertisements or content of any kind. In

addition to a Rightsholder’s right to exclude one or more of his, her or its

Books from Advertising Uses pursuant to Section 3.5(b)(i) (Right to

Exclude), the Unclaimed Works Fiduciary may exclude from Advertising

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Amended Settlement Agreement

Uses one or more unclaimed Books if Google displays animated, audio or video advertisements in conjunction with those Books and the Registry determines that exclusion from such Advertising Uses is in the best interests of Rightsholders of such unclaimed Books.
3.11 Hosted Version for Rightsholders. Upon request by a Rightsholder of a Book, Google will provide a hosted version of such Book for use in conjunction with such Rightsholder’s website, similar to Google’s hosted version of Books in the Google Partner Program. Such hosted version will contain the “look and feel” of the Rightsholder’s website with minimal Google branding, which branding may be tailored by the Rightsholder upon the Rightsholder’s further reasonable request.
3.12 Use of Digital Copies. Except as permitted by Sections 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e) (Google’s Exclusion of Books), 7.2(b)(ix) (Other Uses), 7.2(e)(ii) (Third-Party Required Library Services Provider) or 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), neither Rightsholders nor the Registry may authorize any Person to use Digital Copies of their Books or Inserts made by or for Google without Google’s consent; provided that Rightsholders may authorize any Fully Participating Library to use Digital Copies of their Books or Inserts in such Fully Participating Library’s LDC consistent with such Fully Participating Library’s Digitization Agreement with Google.
3.13 Communication of Rightsholder Directions to Google. Rightsholders shall communicate to the Registry or, at their election and provided that Google implements an Online interface for such purpose, directly to Google, all directions for Removal, exclusion, inclusion, and pricing, and any other directions for Books and Inserts provided for in this Amended Settlement Agreement. If, however, a Rightsholder communicates directly with Google, then Google shall, before implementing any such direction, (a) notify the Registry and provide the Registry with the Rightsholder’s contact information and direction and (b) subject to Section 13.2 (Validating and Challenging Claims), receive confirmation from the Registry that (i) for Books, the Person communicating with Google is an appropriate Rightsholder under the Author-Publisher Procedures, and (ii) Google is authorized to implement such direction under this Amended Settlement Agreement, including (for Books) the Author-Publisher Procedures. The Registry will promptly respond to any such notification and request for confirmation from Google and, in any event, within the same period of time as the Registry typically responds to requests directly from Rightsholders to the Registry.
3.14 Advertising Uses. Google may display advertisements on Preview Use pages and other Online Book Pages (“Advertising Uses”). Advertising on general search results pages in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be an “Advertising Use,” even if a single Book is the sole search result of a given search on a
49
Amended Settlement Agreement

search results page. Except as set forth in Section 3.10(c)(iii) (Advertising Content) and Section 3.5(b)(i) (Right to Exclude), this Amended Settlement Agreement does not otherwise limit Google’s right to display advertising anywhere on Google Products and Services.
3.15 Extent of Rights and Authorizations.

(a)

Books. A Book Rightsholder’s rights and

Google’s authorizations under this Amended Settlement Agreement

apply to all of the Protected Expression of such Rightsholder

contained in a Book in which such Rightsholder holds a Copyright

Interest.

(b)

Inserts. A Rightsholder of an Insert has no rights

under this Amended Settlement Agreement with respect to any Book

or any portion of any Book in which such Insert appears, other than

the Insert itself, e.g., a Rightsholder of an Insert has no right to

Remove the Book in which his, her or its Insert appears, or to

authorize or to prohibit Display Uses of the Book in which his, her or

its Insert appears.

(c)

Other Content. If content (e.g., text or images) in

a Book is (i) in the public domain under the Copyright Act in the

United States or (ii) subject to a Copyright Interest not owned by any

Rightsholder of such Book or by any Rightsholder of any Insert in

such Book, this Amended Settlement Agreement neither authorizes

nor prohibits, nor releases any Claims with respect to, the use of such

content.

ARTICLE IV — ECONOMIC TERMS FOR GOOGLE’S USE OF BOOKS

4.1 Institutional Subscriptions.

(a)

General Guidelines for Pricing of Institutional

Subscriptions.

(i)

Objectives. The economic terms for Institutional

Subscriptions of Books will be governed by two objectives: (1) the

50
Amended Settlement Agreement

realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

(ii)

Parameters. Google and the Registry will use the

following parameters to determine the price of Institutional Subscriptions:

pricing of similar products and services available from third parties, the

scope of Books available, the quality of the scan and the features offered as

part of the Institutional Subscription. Plaintiffs and Google expect that the

number of Books available through an Institutional Subscription will change

over time. As such, the value and price of Institutional Subscriptions may

also change over time.

(iii)

FTE Basis. Pricing will be based on FTEs (Full-Time

Equivalency). For Higher Education Institutions, FTE is defined as full-time

equivalent students.

(iv)

Pricing Bands. FTE-based pricing, including pricing

bands, may vary across broad categories of institutions. The categories are:

(1) FTE);

Corporate (may include per seat licensing in addition to

(2)

Higher Education Institutions, which will be sub-

divided into sub-categories based on the Carnegie Classifications for

Institutions of Higher Education within the United States;

(3) approval);

School (K-12) (no remote access without Registry

(4)

Government (no remote access without Registry

approval) (may include per seat licensing in addition to FTE);

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Amended Settlement Agreement

(5) and

Public (no remote access without Registry approval);

(6)

Additional categories, as agreed between Google and

the Registry. Subdividing the market into additional categories may be

one mechanism used to ensure broad accessibility of Books to end users.

(v)

Versions of Institutional Subscriptions. When Google

offers any Institutional Subscription, Google will offer a version of the

Institutional Subscription that provides access to all Books available for

Institutional Subscriptions pursuant to this Amended Settlement Agreement

(the “Institutional Subscription Database”) for a fee. In addition, Google

may identify Institutional Subscriptions for a small number of discipline-

based collections of Books that Google would offer as an alternative to the

version of the Institutional Subscription that provides access to the entire

Institutional Subscription Database. To provide an incentive for institutions

to subscribe to the entire Institutional Subscription Database, Google shall

design the pricing of the different versions of the Institutional Subscription

such that the price for access to the entire Institutional Subscription Database

will be less than the sum of the prices for access to the discipline-based

collections.

(vi)

Pricing Strategy. Prior to beginning to sell Institutional

Subscriptions, Google shall propose an initial pricing strategy and, thereafter,

Google shall propose subsequent pricing strategies, consistent with the

objectives set forth in Section 4.1(a)(i) (Objectives) (each, a “Pricing

Strategy”), to the Registry.

(1)

Elements of Pricing Strategy. Each Pricing Strategy

shall include:

a)

Any discipline-based collections that would be

offered as an Institutional Subscription, as an alternative to the

version of the Institutional Subscription that provides access to the

entire Institutional Subscription Database.

b)

A target retail price for each Institutional

Subscription for each of the classes of institutions identified in

Section 4.1(a)(iv) (Pricing Bands), including Institutional

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Amended Settlement Agreement

Subscriptions for each of the discipline-based collections that may be offered, Institutional Subscriptions that provide access to the entire Institutional Subscription Database, and any Limited Subscriptions.

c)

The period of time over which Google will have

the authorization to sell the versions of the Institutional

Subscription at such target retail prices.

d)

Any expected increases or decreases in the price

of each version of the Institutional Subscription at annual

anniversary points during the period in which the then-current

Pricing Strategy will be in effect.

e)

The amount of discount, if any, that Google is

authorized to offer to institutions and to Institutional Consortia.

Any discounts above the approved discount require Registry

approval.

f)

The Price Change Cut Off Date.

(2)

Discounting. The initial Pricing Strategy will also

include a discount from the List Prices that will be offered for a limited

period of time to subscribers. This discount will be defined against the

List Price and is designed to encourage potential customers to subscribe.

The period for an initial discount will be included in the initial Pricing

Strategy.

(3)

Duration. The period for the initial Pricing Strategy to

be in effect is expected to be between two (2) and three (3) years. Google

and the Registry shall agree as to the periods for which subsequent Pricing

Strategies will be in effect.

(4)

Process.

a)

Initial Pricing Strategies. The initial Pricing

Strategy must be agreed upon by Google and the Registry before

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Amended Settlement Agreement

Google sells any Institutional Subscriptions. Google shall submit a proposed initial Pricing Strategy to the Registry by no later than one year after the Effective Date. Following submission of the initial Pricing Strategy, Google and the Registry shall negotiate for a period of up to one hundred and eighty (180) days. If, after one hundred and eighty (180) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on the initial Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution).

b)

Subsequent Pricing Strategies. Google shall

submit subsequent proposed Pricing Strategies to the Registry at

least ninety (90) days prior to the expiration of the then-current

Pricing Strategy, and Google and the Registry shall negotiate for a

period of up to ninety (90) days. If, after ninety (90) days (or

earlier, as mutually agreed), Google and the Registry do not reach

agreement on such proposed Pricing Strategy, the dispute shall be

resolved pursuant to Article IX (Dispute Resolution). In the event

of such a dispute, the then-current Pricing Strategy will continue to

apply unless and until the earlier of (1) Google and the Registry

agreeing on a subsequent Pricing Strategy or (2) the Arbitrator

rendering a Decision.

(vii)

Comparable Products and Services. FTE-based prices in

the initial Pricing Strategy will be based upon then-current prices for

comparable products and services, surveys of potential subscribers, and other

methods for collecting data and market assessment. Google shall be

responsible for collecting data comparing the target retail prices for the

versions of the Institutional Subscription to the prices of similar products and

services (including by use of a third party to collect such data if the Registry

requests that Google use a third party, which third party will be subject to the

Registry’s approval not to be unreasonably withheld or delayed) and shall

provide such data to the Registry.

(viii) Adjustments to Pricing Strategy.

(1)

Google Proposed Adjustments. Google may propose

adjustments to the then-current agreed upon Pricing Strategy. If Google

and the Registry cannot agree to a change to the Pricing Strategy after

negotiating for a period of sixty (60) days after Google’s notice of its

54
Amended Settlement Agreement

proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision; provided, however, that Google and the Registry may agree, or an Arbitrator pursuant to Article IX (Dispute Resolution) may require, that the new pricing be retroactive to sixty (60) days after the date of Google’s notice of adjustments to the then-current agreed upon Pricing Strategy.

(2)

Registry Proposed Adjustments. The Registry may

propose adjustments to the then-current agreed upon Pricing Strategy. If

Google and the Registry cannot agree to a change to the Pricing Strategy

after negotiating for a period of sixty (60) days after the Registry’s notice

of its proposal for adjustments, then the dispute shall be resolved pursuant

to Article IX (Dispute Resolution) consistent with the objectives set forth

in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be

changed by mutual written agreement of Google and the Registry. In the

event of such a dispute, the then-current price will continue to apply

unless and until the earlier of (a) Google and the Registry agreeing to

changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision.

If the renegotiation of the Pricing Strategy concludes, or if the Arbitrator

renders a Decision, prior to the Price Change Cut Off Date, then any

increase in the price resulting from the renegotiation or Decision will take

effect for the academic year first starting after the Price Change Cut Off

Date. If the renegotiation of the Pricing Strategy concludes, or if the

Arbitrator renders a Decision, on or after the Price Change Cut Off Date,

then any price increase will take effect not for the academic year first

starting after the Price Change Cut Off Date, but in the next following

academic year. In addition, any price increase will not apply to any then-

existing subscriber contracts until they are renewed or extended. “Price

Change Cut Off Date” means a date that is prior to the commencement of

the academic year first starting after such date and that is set to provide

Google with a reasonable period of time within which to sell the

Institutional Subscription for that academic year without an intervening

price increase for Institutional Subscriptions, which period of time

reasonably approximates the typical sales cycle for comparable products

and services.

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Amended Settlement Agreement

(ix)

Adjunct Products. Google will inform the Registry of any

Google Products and Services that Google offers for a fee as an adjunct to

any Institutional Subscription or (if Google and the Registry agree to offer

Consumer Subscriptions) Consumer Subscription, which product or service

meets the following conditions:

(1)

the preponderance of the value of such product or

service to users of the subscription is realized through access to Books

through such subscription, and

(2)

such product or service exploits access to Books by

users of the subscription in a manner that could not, with similar efforts,

be similarly exploited by other entities ((1) and (2) together, an “Adjunct

Product”).

(3)

The Registry will have the right immediately to

renegotiate and, if necessary, resolve pursuant to Article IX (Dispute

Resolution), with Google the prices of the applicable Institutional

Subscription(s) or Consumer Subscription(s) with which such Adjunct

Product is used under the procedures set forth in Section 4.1(a)(viii)

(Adjustments to Pricing Strategy), which revised prices will apply

prospectively only. Google, at its sole discretion, may choose to remove

access to Books as part of the Adjunct Product or modify the Adjunct

Product in a manner that ensures that conditions in clauses (1) and (2)

above are no longer met if Google wishes to avoid the Registry’s option of

renegotiating or resolving pursuant to Article IX (Dispute Resolution).

Renegotiation and resolution pursuant to Article IX (Dispute Resolution),

as set forth in this Section 4.1(a)(ix) (Adjunct Products), shall be the

Registry’s sole remedy and Google’s sole obligation for disputes under

this Section 4.1(a)(ix) (Adjunct Products).

(b)

Institutional Consortia. Google may work through

Institutional Consortia to sell Institutional Subscriptions.

(c)

Intermediaries. Google may work through

intermediaries to sell Institutional Subscriptions, subject to Registry

approval, which approval shall not be unreasonably withheld or

delayed.

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Amended Settlement Agreement

(d)

Basic Features of Institutional Subscriptions.

Institutional Subscriptions will enable users to view, copy/paste, and

print pages of a Book, and may enable Book Annotations. With

respect to copy/paste, the user will not be able to select, copy and

paste more than four (4) pages of the content of a Display Book with

a single copy/paste command. Printing will be on a page-by-page

basis or a page range basis, but the user will not be able to select a

page range that is greater than twenty (20) pages with one print

command for printing. Google will include a visible watermark on

pages printed from the Institutional Subscription Database, which

identifies the material as copyrighted and displays encrypted session

identifying information provided by the subscribing institution during

such session, and which could be used to identify the authorized user

that printed the material or the access point from which the material

was printed. Such watermark will not obscure the content of the

printed pages.

(e)

Institutional Subscription Terms and Conditions.

In its terms and conditions applicable to Institutional Subscriptions,

(i) Google will (1) limit access to Books to appropriate individuals

within the subscriber institution (e.g., in the case of educational

institutions, faculty, students, researchers, staff members, librarians,

personnel and business invitees of the subscriber and walk-in users

from the general public; in the case of corporate or government

offices, personnel and business invitees; and, in the case of Public

Libraries, library patrons and personnel), (2) permit users to view,

copy/paste, and print pages of Books only to the extent authorized

under this Amended Settlement Agreement, (3) permit users to make

available the Books and Inserts in the Institutional Subscription

Database to other users of that Institutional Subscription through

hyperlinks, or similar or appropriate technology, when such Books

and Inserts are served by Google, for course use (e.g., e-reserves and

course management systems), only to the extent authorized under this

Amended Settlement Agreement, (4) not prohibit any uses of Books

or Inserts that would otherwise be permitted under the Copyright Act

without the need for express authorization from the Rightsholder, and

(5) include the right for Google to restrict or terminate a user’s

account, including additional restrictions on printing and copy/paste,

if the user distributes the copyrighted material from a Book in a

manner that is prohibited by the terms and conditions or applicable

law, and (ii) Google may enable Book Annotations. Prior to

Google’s initial launch of the Institutional Subscription, Google will

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Amended Settlement Agreement

provide to the Registry a copy of the terms and conditions applicable to any Institutional Subscriptions offered by Google.

(f)

Subscriber Experience. The experience and rights

provided to subscribers and their users under Institutional

Subscriptions will be no less favorable to them than the experience

and rights offered in the Consumer Purchase, except that such

experience and rights will be time-limited to the duration of the

Institutional Subscription. In addition, and without limiting the

foregoing, Institutional Subscriptions must permit searching the full

text of Books in the Institutional Subscription Database and, in the

case of Higher Education Institutions, permit users to make available

the Books and Inserts in the Institutional Subscription Database to

other users of the Institutional Subscription through hyperlinks, or

similar or appropriate technology, as described in Section 4.1(e)

(Institutional Subscription Terms and Conditions).

(g)

Beta Testing. Google may provide Institutional

Subscriptions to a limited number of institutions as a beta product

free of charge prior to the initial launch. Unless otherwise agreed by

the Registry, Google shall be authorized to offer Institutional

Subscriptions in beta form to up to five (5) Fully Participating

Libraries and Cooperating Libraries, up to two (2) Public Libraries,

up to two (2) not-for-profit institutions within each of the Carnegie

Classifications for Institutions of Higher Education within the United

States and, as agreed between Google and the Registry, other

libraries. At least one institution from each such category of

institutions shall be included in the beta-test group. Google shall

provide to the Registry all pricing-related data collected from these

beta-test partners to assist in the pricing for the versions of the

Institutional Subscriptions. Once the beta Institutional Subscription

is launched, Google shall be able to continue to support then-existing

beta customers until the earlier of (i) two (2) years from the launch of

the beta product (unless a longer period of time is agreed by the

Registry) or (ii) launch of the Institutional Subscription.

4.2 Consumer Purchases.

(a)

Basic Features of Consumer Purchase. Consumer

Purchase will enable purchasers to view, copy/paste and print pages

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Amended Settlement Agreement

of a Book, and may enable Book Annotations. With respect to copy/paste, the user will not be able to select, copy and paste more than four (4) pages of the content of a Display Book with a single copy/paste command. Printing will be on a page-by-page basis or a page range basis, but the user will not be able to select a page range that is greater than twenty (20) pages with one print command for printing. Google will include a visible watermark on pages printed from the Consumer Purchase, which identifies the material as copyrighted and displays encrypted session identifying information, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed. Such watermark will not obscure the content of the printed pages.

(i)

Alternative License Terms. In lieu of the basic features of

Consumer Purchase set forth in Section 4.2(a) (Basic Features of Consumer

Purchase), a Rightsholder may direct the Registry to make its Books

available at no charge pursuant to one of several standard licenses or similar

contractual permissions for use authorized by the Registry under which

owners of works make their works available (e.g., Creative Commons

Licenses), in which case such Books may be made available without the

restrictions of such Section.

(b)

Pricing Options.

(i)

Pricing of Consumer Purchases. A Rightsholder may

select one of two pricing options for Consumer Purchases:

(1)

Specified Price. In this option, the Rightsholder

identifies the price (which may be as low as $0.00) for which it wants its

Book authorized for Consumer Purchase to be sold. This pricing option is

referred to in this Amended Settlement Agreement as the “Specified

Price.” The Specified Price may only be changed by the Rightsholder and

is not subject to Article IX (Dispute Resolution).

(2)

Settlement Controlled Price. In this option, the

Rightsholder permits the price for which its Book authorized for

Consumer Purchase is to be sold to be determined by an algorithm (the

“Pricing Algorithm”) that Google will design to find the optimal price for

each such Book in order to maximize revenues for the Rightsholder for

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Amended Settlement Agreement

such Book and without regard to changes to the price of any other Book (but Google may use historical price data of other Books in designing the Pricing Algorithm). This pricing plan is referred to in this Amended Settlement Agreement as the “Settlement Controlled Price,” and is governed by the provisions in Section 4.2(c) (Settlement Controlled Pricing).

(ii)

Change of Pricing Option. At any time, the Rightsholder

of a Book may switch between the Specified Price and Settlement Controlled

Price upon seven (7) days’ prior notice to Google or the Registry.

(iii)

Default Pricing Option. If the Rightsholder of a Book has

not specifically directed that its Book be sold at a Specified Price, then

Consumer Purchase of that Book will be sold at the Settlement Controlled

Price.

(c)

Settlement Controlled Pricing.

(i)

Pricing Bins. For Books that will be sold at the

Settlement Controlled Price, Google will use a set of pre-defined prices

(“Pricing Bins”), and each Book will be priced at one of those prices. The

initial Pricing Bins for Books will be: $1.99, $2.99, $3.99, $4.99, $5.99,

$6.99, $7.99, $8.99, $9.99, $14.99, $19.99 and $29.99. Google may

establish additional or different Pricing Bins between, below and above these

prices at any time; provided, however that (a) the Unclaimed Works

Fiduciary has the right to approve the use of such additional or different

Pricing Bins for unclaimed Books and (b) the use of such additional or

different Pricing Bins for a Registered Rightsholder’s Books is subject to

thirty (30) days’ prior notice to such Rightsholder. At any time, the

Rightsholder of a Book may specify a maximum and/or a minimum Pricing

Bin for its Book and Google will implement such specification within seven

(7) days after Google receives notice thereof. In any event, either Google or

the Registry has the option to require renegotiation of the number of Pricing

Bins or the prices of the Pricing Bins at the end of the three (3)-year period

commencing with the Effective Date, and every four (4) years thereafter.

Google or the Registry shall give the other party notice at least ninety (90)

days prior to the end of the then-current three (3)- or four (4)-year period, as

applicable, of its exercise of its option to renegotiate. Such ninety (90)-day

period may be extended by mutual written agreement of Google and the

Registry. In the event that Google and the Registry cannot agree on changes

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Amended Settlement Agreement

to the number of Pricing Bins or the prices for each Pricing Bin, as applicable, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). In the event of such a dispute, the then-current number of Pricing Bins and the prices for each Pricing Bin will continue to apply unless and until the earlier of (1) Google and the Registry agreeing to such changes or (2) the Arbitrator rendering a Decision.

(ii)

Pricing and Distribution of Books Into Pricing Bins.

(1)

Initial Pricing Bin Distribution. The initial distribution

percentages of Settlement Controlled Price Books that Google offers for

Consumer Purchase in the Pricing Bins will be: 5% ($1.99), 10% ($2.99),

13% ($3.99), 13% ($4.99), 10% ($5.99), 8% ($6.99), 6% ($7.99), 5%

($8.99), 11% ($9.99), 8% ($14.99), 6% ($19.99) and 5% ($29.99).

(2)

Development of Pricing Algorithm and Changes to

Pricing Bin Distribution. Google will develop the Pricing Algorithm

unilaterally, with no involvement of or control by the Registry or any

Rightsholder; provided, however, that Google employees and contractors

who may be Rightsholders are not precluded from performing their

assigned duties with respect to development of the Pricing Algorithm. In

developing the Pricing Algorithm, Google will analyze sales data to

ensure the reasonableness of the Pricing Algorithm. The Pricing

Algorithm shall base the Settlement Controlled Price of a Book, on an

individual Book by Book basis, upon aggregate data collected with respect

to Books that are similar to such Book and will be designed to operate in

a manner that simulates how an individual Book would be priced by a

Rightsholder of that Book acting in a manner to optimize revenues in

respect of such Book in a competitive market, that is, assuming no change

in the price of any other Book. Based on the Pricing Algorithm, Google

may change the price of an individual Book over time in response to sales

data and in order to collect additional data to establish the optimal price

for such Book. The distribution of Books sold on the basis of Settlement

Controlled Prices among the Pricing Bins may change over time as the

prices of individual Books are adjusted based on the Pricing Algorithm.

(3)

Validation of Pricing Algorithm. The Registry has the

right, through the use of a reasonable number of third-party experts, to

verify that the conclusions the Pricing Algorithm produces are statistically

valid; provided that (a) Google has no obligation to disclose the Pricing

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Amended Settlement Agreement

Algorithm or any other Confidential Information of Google to the Registry or any third-party experts retained by the Registry, except as necessary for the Registry’s experts to validate the reasonableness of the Pricing Algorithm and to verify its conclusions, (b) Google will not be required to disclose Confidential Information of Google not originally developed for the Pricing Algorithm, (c) Google may not rely on or introduce into evidence any such non-disclosed Confidential Information in any arbitration pursuant to Article IX (Dispute Resolution) regarding the reasonableness of the Pricing Algorithm, and (d) Google bears the burden of proving that the Pricing Algorithm is reasonable. The Registry’s experts’ receipt of any Confidential Information of Google related to the Pricing Algorithm will be subject to strict non-disclosure agreements, provided that such experts may disclose their conclusions to the Registry and the Registry may disclose their conclusions to Rightsholders.

(4)

Disputes. Disputes regarding the Pricing Algorithm or

its application shall be resolved pursuant to Article IX (Dispute

Resolution).

(iii)

Provision of Settlement Controlled Prices to Registry.

Google shall determine and provide to the Registry both the Settlement

Controlled Price for all Settlement Controlled Price Books and what would

be the Settlement Controlled Price for every Specified Price Book as if the

Rightsholder of such Specified Price Book had selected the Settlement

Controlled Price option. Such information is the Confidential Information of

Google. Subject to Section 15.4 (Disclosures Required by Law), the

Registry shall not disclose the Settlement Controlled Price for any Book to

any Person other than the Rightsholders of such Book and, if the price of a

Book is publicly available, the Registry shall not disclose whether that price

is the Settlement Controlled Price.

4.3 Preview Uses.

(a)

Preview Use Permitted. Google may offer a free

Preview Use to allow users to sample a Book prior to making a

purchase decision, unless a Rightsholder of a Book directs Google or

the Registry not to allow Preview Use of that Book.

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Amended Settlement Agreement

(b)

Default Settings for Preview Use. The default

settings for Preview Use will be as follows:

(i)

Standard Preview. Except as set forth below in this

Section 4.3(b) (Default Settings for Preview Use), the default Preview Use is

Standard Preview.

(1)

Standard Preview. “Standard Preview” means that

Google may display (in addition to the table of contents, title page,

copyright page and other pages that appear prior to the table of contents,

and the index) up to twenty percent (20%) of the pages of a Book to a user

but no more than five (5) adjacent pages at a time (i.e., when a user lands

on a given page from a search or navigation, the user will be limited to

viewing no more than four (4) additional adjacent pages at a time), before

or after which no fewer than two (2) pages are blocked; provided that, for

Fiction, Google will block the final five percent (5%) of the Book’s pages

(or a minimum of the final fifteen (15) pages in the Book). In addition,

“Standard Preview” for Fiction means that, at Google’s option, Google

may display up to twenty percent (20%) of the pages of a Book to a user,

subject to the following: (i) Google may display up to five percent (5%)

of a Fiction Book, or fifteen (15) pages, whichever is less, adjacent to

where a user lands on a given page from a search or navigation and (ii)

Google will block the final five percent (5%) of the Book’s pages (or a

minimum of the final fifteen (15) pages in the Book). As used in this

Section 4.3(b)(i)(1) (Standard Preview), “Fiction” means Books associated

with BISAC codes for Fiction, Juvenile Fiction, Comics & Graphic

Novels, Drama, Humor, Literary Collections and Poetry, and, for any

Books that do not have a BISAC code, any Books comprising works of

imaginative narration. If the Registry disagrees with Google’s

categorization of a Book as Fiction, the Registry may notify Google and if

Google and the Registry do not agree on whether a Book is Fiction, the

dispute shall be resolved pursuant to Article IX (Dispute Resolution). If

Google and the Registry determine, or if an Arbitrator decides, that a Book

was mistakenly categorized to be Fiction or non-Fiction, then Google

promptly shall change the categorization of the Book after the

determination or decision, and such change, if made, shall be the

Rightsholder’s and the Registry’s sole remedy and Google’s sole

obligation for such mistaken categorization.

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Amended Settlement Agreement

(2)

Adjustments to Percentages. Rightsholders may

increase the percentages in Fixed Preview, Standard Preview and

Continuous Preview.

(3)

No Copy/Paste, Print or Book Annotations. Unless

approved by the Registry or the Rightsholder, Google will not offer to

users copy/paste, print or Book Annotation functionalities as part of

Preview Uses.

(ii)

No Preview. The default setting for the categories of

Books listed on Attachment F (Preview Uses) under the heading “No

Preview” is no Preview Use (“No Preview”).

(iii)

Fixed Preview. The default setting for the categories of

Books listed on Attachment F (Preview Uses) under the heading “Fixed

Preview” is Fixed Preview. “Fixed Preview” means that Google may display

(in addition to the table of contents, title page, copyright page and other

pages that appear prior to the table of contents, and the index) up to ten

percent (10%) of the pages of a Book to a user and such pages are fixed (i.e.,

they do not vary from user to user or depend on a user’s search). Google

will choose the pages displayed in Fixed Preview unless the Registry

develops a mechanism to identify for Google particular pages selected by the

Rightsholder, in which case the pages will be those chosen by the

Rightsholder.

(iv)

Determination of Categories. Google shall use BISAC

codes or an equivalent classification scheme in order to determine whether a

Book is in a category listed on Attachment F (Preview Uses). Google shall

not be responsible for errors in its determination of whether a Book is in a

particular category listed on Attachment F (Preview Uses). Upon

notification by the Registry or the Rightsholder that Google has inaccurately

determined whether a Book is in a category listed on Attachment F (Preview

Uses), Google shall adjust the amount of the Book available through Preview

Use or Fixed Preview for such Book in accordance with the correct category.

Such adjustment by Google shall be Google’s sole obligation and the sole

remedy for any errors in determining the category of a Book.

(c)

Rightsholder Options for Preview Use. Regardless

of the default setting for Preview Use of a Book set forth in Section

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Amended Settlement Agreement

4.3(b) (Default Settings for Preview Use), a Rightsholder will be able to choose from the following settings for Preview Use for any Book:

(i)

Fixed Preview.

(ii)

Standard Preview.

(iii)

Continuous Preview. “Continuous Preview” means that

Google may display up to ten percent (10%) of the pages of a Book to a user

without the adjacent page limitations of Standard Preview.

(d)

List of Blocked Preview Use Pages. Unless the

Rightsholder has authorized display of one hundred percent (100%)

of the pages of a Book in Preview Use, Google will maintain a list of

Book pages that cannot be viewed in any Preview Use. The list will

consist of at least five percent (5%) of the pages of a Book, which

blocked pages shall be selected by Google unless the Registry

develops a mechanism to identify for Google particular pages

selected by the Rightsholder totaling not more than five percent (5%),

in which case the blocked pages will be those chosen by the

Rightsholder.

(e)

Google Tests.

(i)

Fixed Preview Books. For Books in categories listed on

Attachment F (Preview Uses) as Fixed Preview, Google may conduct tests in

consultation with the Registry to determine if another Preview Use category

increases sales and revenues of such Books. For purposes of such tests,

Google may randomly select no more than five percent (5%) of the Books

within a category in Attachment F (Preview Uses) for which only Fixed

Preview is permitted and display those Books through Standard Preview,

Continuous Preview or No Preview for a limited time only as necessary to

gather statistically significant information as to which Preview Uses

increases sales and revenues of such Book. Google shall present the results

of these tests to the Registry. The Registry, in consultation with Google,

shall be responsible for determining whether to modify Attachment F

(Preview Uses) to move Books from Fixed Preview to Standard Preview,

Continuous Preview or No Preview taking into account the data provided by

such tests and other data available to the Registry that is relevant to such

65
Amended Settlement Agreement

Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books that are currently included in Consumer Purchase will be increased by moving from Fixed Preview to Standard Preview, Continuous Preview or No Preview and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders

(ii)

No Preview Books. For Books in categories listed on

Attachment F (Preview Uses) as No Preview, Google may conduct tests in

consultation with the Registry to determine which Preview Use setting

increases Book sales and revenues for Books in the different Pricing Bins set

forth in Section 4.2(c)(i) (Pricing Bins). For purposes of such tests, Google

may randomly select no more than five percent (5%) of the Books within a

category in Attachment F (Preview Uses) for which No Preview is permitted

and display those Books through Fixed Preview, Standard Preview or

Continuous Preview for a limited time only as necessary to gather

statistically significant information as to which Preview Use increases sales

and revenues of such Book. At the Registry’s request, during the first ten

(10) years after the Effective Date and thereafter by agreement between

Google and the Registry, Google shall collect and provide to the Registry

empirical data concerning the extent to which each Preview Use has an effect

on Book sales and revenues (including data on the number of accesses and

purchases of particular Books and categories of Books), to enable

Rightsholders and the Registry to change the Preview Use settings or to

modify the percentage of a Book displayed through Preview Use for Books

or categories of Books. The Registry, in consultation with Google, shall be

responsible for determining whether to modify Attachment F (Preview Uses)

to move Books from No Preview to one of the other Preview Use settings

taking into account the data provided by such tests and other data available

to the Registry that is relevant to such Preview Use determination. The

Registry shall make this decision taking into account whether the data

indicate that sales and revenues of a particular category of Books included in

Consumer Purchase will be increased by moving from No Preview to one of

the other Preview Use settings and, considering such data, acting in the best

interests of the Rightsholders of that category of Books to maximize

revenues for those Rightsholders.

(iii)

Standard, Continuous, Fixed Preview or No Preview

Books. Upon request of the Registry, for Books in any Preview Use

category, Google shall make commercially reasonable efforts to conduct

tests to determine if another Preview Use setting increases sales and

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Amended Settlement Agreement

revenues of such Books. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) for any category of Books by choosing from among the Preview Use settings, taking into account the data provided by the tests conducted pursuant to this Section 4.3(e) (Google Tests) and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books will be increased by changing the Preview Use setting and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders.

(iv)

Books Excluded from Testing. In no event shall any tests

under clauses (i), (ii) or (iii) above either (1) make Display Uses of Books

that the Rightsholder has expressly excluded from Display Uses or that the

Registry reasonably requests to be excluded or (2) change the Preview Use

of Books from settings (a) expressly set by the Rightsholder or (b) expressly

set by the Registry by modification of Attachment F (Preview Uses) under

clause (iii) above.

(v)

Registry’s Ability to Adjust Preview Use Settings. In

addition to amendments to Attachment F (Preview Uses) described in clauses

(i), (ii) and (iii) above, the Registry may adjust the Preview Use setting for a

particular Book in exceptional circumstances for good cause shown.

(f)

Preview Use Pages Served on Non-Google

Websites. When Google makes any Preview Use of a Book as

authorized under this Amended Settlement Agreement and allows

third parties to display Preview Use pages served by Google on non-

Google websites, then Google agrees to include Metadata about that

Book, including the title and author of the Book.

(g)

Unclaimed Books. The Registry’s power to act

with respect to the Preview Uses under this Section 4.3 (Preview

Uses) will be delegated to the Unclaimed Works Fiduciary.

4.4 Advertising Revenue Model. Revenues generated from Advertising Uses will be allocated between Google and the Rightsholders in accordance with Section 4.5(a)(ii) (Net Advertising Revenues).

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Amended Settlement Agreement

4.5 Standard Revenue Splits and Discounting.

(a)

Obligation to Pay Revenue Share.

(i)

Net Purchase Revenues. Google shall pay to the Registry,

on behalf of the Rightsholders, the Standard Revenue Split for Purchases.

The “Standard Revenue Split for Purchases,” paid by Google to

Rightsholders, through the Registry, is seventy percent (70%) of Net

Purchase Revenues.

(ii)

Net Advertising Revenues. Google shall pay to the

Registry, on behalf of the Rightsholders, the Standard Revenue Split for

Advertising. The “Standard Revenue Split for Advertising,” paid by Google

to Rightsholders, through the Registry, is seventy percent (70%) of Net

Advertising Revenues.

(iii)

Agreed Revenue Splits. Notwithstanding clauses (i) and

(ii) above, for any Revenue Model(s) for any Book(s) classified as

Commercially Available, Google and the Rightsholder(s) of such Book(s)

each has the right to request that the other negotiate a revenue split different

from the Standard Revenue Split for Advertising and the Standard Revenue

Split for Purchases (together, the “Standard Revenue Splits”). If Google or a

Rightsholder requests that the revenue split be negotiated for any Revenue

Model(s) and Google and the Rightsholder are unable to agree on a revenue

split different from the Standard Revenue Splits for such Revenue Model(s),

then such Standard Revenue Splits (or the then applicable previously

negotiated and agreed revenue split, if any) shall apply to such Books for that

Revenue Model(s); provided that Google may choose not to make such

Books available through such Revenue Model(s) as permitted under Section

3.7(e) (Google’s Exclusion of Books)) and the Rightsholder may choose to

exclude its Book(s) from such Revenue Model(s) pursuant to Section 3.5(b)

(Right to Exclude from Display Uses and Revenue Models). If Google and

such Rightsholder(s) agree to a revenue split, then beginning within sixty

(60) days after the date of such agreement, any calculations in Section 4.5(b)

(Discounting, Special Offers and Subsidies) and any payments in Section 4.6

(Payment Terms) shall be based on such agreed revenue split rather than the

Standard Revenue Splits. Google or the Rightsholder(s) shall notify the

Registry of any agreed revenue split, the date of agreement to such revenue

split, and the Books to which it applies. The Registry may not disclose

information about any agreed revenue split with any Rightsholder (other than

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Amended Settlement Agreement

any other Rightsholder(s) of the Book(s) to which such agreed revenue split applies) unless such information is otherwise publicly available. Once a Book is classified as not Commercially Available, the Standard Revenue Splits shall apply beginning no later than sixty (60) days after such reclassification, notwithstanding any prior agreed revenue split between Google and a Rightsholder.

(b)

Discounting, Special Offers and Subsidies.

(i)

Discounts. Google may provide discounts off the List

Prices at its sole discretion. If Google elects to provide such discounts, the

Standard Revenue Split for Purchases paid to the Registry for the benefit of

the Rightsholders will be based on the List Prices, unless otherwise set forth

in this Section 4.5(b) (Discounting, Special Offers and Subsidies) or unless

otherwise agreed by Google and the Registry.

(ii)

Consumer Purchases. The Registry may authorize Google

to make special offers of Books available through Consumer Purchases at

reduced prices from the List Prices, subject to notification of such reduced

price to the Registered Rightsholders of the Book, with an opportunity for

any such Rightsholder (for his, her or its claimed Books) or the Unclaimed

Works Fiduciary (for unclaimed Books) not to approve such reduced price.

If Google sells Books at such a reduced price, the Standard Revenue Split for

Purchases or a revenue split agreed pursuant to Section 4.5(a)(iii) (Agreed

Revenue Splits) will be based on such reduced price.

(iii)

Use of Intermediaries for Institutional Subscription Sales

Generally. Google may offer a discount of up to ten percent (10%) off the

List Prices for Institutional Subscriptions for any Institutional Subscriptions

sold through intermediaries.

(iv)

Sales of Institutional Subscriptions through Institutional

Consortia. Approved discounts, if any, that Google is authorized to offer to

an Institutional Consortium or its members will be included as part of the

Pricing Strategy. Additional discounts will require Registry approval.

Unless otherwise agreed upon by the Registry, Google is only authorized to

offer discounts to Institutional Consortia if members of the Institutional

Consortium purchase Institutional Subscriptions for at least seventy percent

(70%) of the FTEs (i.e., full-time equivalent students) of the members of the

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Amended Settlement Agreement

Institutional Consortium. For purposes of this Section 4.5(b)(iv) (Sales of Institutional Subscriptions through Institutional Consortia), absent agreement of the Registry, Google may not offer such discount to any Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective and that was formed for the primary purpose of entering into an Institutional Subscription agreement with Google. Google will notify the Registry no less than thirty (30) days prior to entering into an Institutional Subscription agreement, with an approved Institutional Consortium discount, with an Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective.

(v)

Sale of Consumer Purchases through Affiliate Programs

and Resellers.

(1)

Affiliate Programs. With respect to sales of Books

through Consumer Purchase through an Affiliate Program, Google may

deduct from the money otherwise owed to the Registry for the benefit of

the Rightsholders from such sale pursuant to Section 4.5(a)(i) (Net

Purchase Revenues), up to three and three-quarters percent (3.75%) of the

List Price as compensation actually paid through the Affiliate Program;

provided, however, that such deduction will be made only to the extent

and in an amount equal to one-half (1/2) the compensation actually paid

by Google through the Affiliate Program. “Affiliate Program” means a

program by which Google authorizes third parties to link their websites to

Google Products and Services using specially formatted links and pays

such third parties referral fees for sales of Books through Consumer

Purchase to users referred to Google through such links.

(2)

Resellers. To the extent that Google makes Books

available through Consumer Purchases pursuant to this Amended

Settlement Agreement, Google will allow resellers to sell access to such

Books to their end users. Google will be responsible for hosting and

serving the Digital Copies of such Books, and will be responsible for the

security of such Digital Copies in accordance with Article VIII (Security

and Breach). Google will permit the reseller of a Book to retain a majority

of Google’s share of Net Purchase Revenues from Consumer Purchases

through such reseller.

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Amended Settlement Agreement

(vi)

Subsidies for Fully Participating Libraries and

Cooperating Libraries. Google may subsidize the purchase of Institutional

Subscriptions by Fully Participating Libraries and Cooperating Libraries and

the amount paid to the Registry, on behalf of Rightsholders, will be as if no

such subsidy had been provided.

(vii)

Rightsholders’ Consumer Subscription Discount. If and at

such time as a Consumer Subscription is available from Google pursuant to

Section 4.7(c) (Consumer Subscription Models), individual Rightsholders

may, at the Registry’s discretion, be offered a discount off of the price for

such Consumer Subscription, which discount is subject to the approval of

Google and the Registry.

(c)

Sales and Other Taxes. In all cases, Net Purchase

Revenues and Net Advertising Revenues shall not include sales or

other government charges or taxes. Google shall charge any

applicable sales or other government charges or taxes in addition to

the List Price or any other price authorized pursuant to this Amended

Settlement Agreement.

4.6 Payment Terms.

(a)

Payment Terms. Google shall remit payment to

the Registry under this Article IV (Economic Terms for Google’s Use

of Books) within (i) sixty (60) days after the end of each calendar

quarter for payments made with respect to Net Advertising Revenues

and Net Purchase Revenues received by Google during the first full

twelve (12) months after the Effective Date, and (ii) sixty (60) days

after the end of each calendar month for payments made with respect

to Net Advertising Revenues and Net Purchase Revenues received by

Google thereafter. Payments to the Registry shall be made either by

check or (if by wire transfer) pursuant to the wire transfer instructions

provided by the Registry.

(b)

Exceptions. Notwithstanding the foregoing

provisions of Section 4.5 (Standard Revenue Splits and Discounting)

and this Section 4.6 (Payment Terms), Google shall not be required

to pay the Registry for (i) any purchase of or access to Books through

any fraudulent or invalid means, including the fraudulent use of

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credit cards or other means of payment, as determined by Google in its sole discretion, (ii) purchases that are refunded prior to Google’s payment pursuant to Section 4.6(a) (Payment Terms), or (iii) purchases that are subject to a credit card charge back. Google reserves the right to grant refunds in its sole discretion. Google reserves the right to withhold payment to the Registry due to any of the foregoing, pending Google’s reasonable investigation. The Registry will cooperate with Google in its investigation of any of the foregoing. Google will not seek any refunds from the Registry or Rightsholders for amounts once paid to the Registry.

(c)

Fraud. Neither Google, the Registry, nor Plaintiffs

shall, nor shall each authorize or encourage any third party to,

directly or indirectly purchase or otherwise obtain access to Books

through any automated, deceptive, fraudulent or other invalid means,

the use of robots or other automated query tools and/or computer

generated search requests, and/or the fraudulent use of software or

credit cards.

(d)

Taxes. Google and the Registry each agree to pay

all applicable taxes or charges imposed on them by any government

entity in connection with all matters contemplated by this Amended

Settlement Agreement.

(e)

Audit Rights. The Registry may, upon thirty (30)

days’ prior notice and at its own expense, retain a nationally

recognized independent and mutually-acceptable independent auditor

(whose fees are not contingency based), under a duty of

confidentiality to Google, to review and audit Google’s relevant

records to confirm the payments due under Section 4.5 (Standard

Revenue Splits and Discounting). The audit shall: (a) be subject to

Google’s security and confidentiality requirements; (b) occur no

more than once every calendar year and not during the first or last

three (3) weeks of a calendar quarter; (c) transpire during Google’s

normal business hours; and (d) cover a period not to exceed the

previous four (4) calendar years. Google will promptly pay to the

Registry the amount of any underpayment determined by the audit

and the Registry will promptly pay to Google (or Google may offset)

the amount of any overpayment determined by the audit. In addition,

if the audit reveals an underpayment of five percent (5%) or more in

the payments for any calendar quarter, then Google shall pay for the

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reasonable costs associated with the audit. The accounting firm may only disclose to the Registry whether or not Google is in compliance with its payment obligations under Section 4.5 (Standard Revenue Splits and Discounting) and, if Google is not in compliance, the amount of any underpayment or overpayment and supporting calculations.

4.7 Additional Revenue Models. The Registry (for unclaimed Books, the Unclaimed Works Fiduciary) and Google may agree to one or more of the following additional Revenue Models:

(a)

Print on Demand (“POD”). This service would

permit purchasers to obtain a print copy of a non-Commercially

Available Book distributed by third parties. A Book’s availability

through such POD program would not, in and of itself, result in the

Book being classified as Commercially Available.

(b)

File Download. This service would permit

purchasers of Consumer Purchase for a Book to download a copy of

such Book in an appropriate file format such as PDF, EPUB or other

format for use on electronic book reading devices, mobile phones,

portable media players and other electronic devices (“File

Download”).

(c)

Consumer Subscription Models. This service

would permit the purchase of individual access to the Institutional

Subscription Database or to a designated subset thereof (“Consumer

Subscription”).

Subject to Section 4.5(a)(iii) (Agreed Revenue Splits), the revenue split for POD and File Download for a Book shall be the same as that for Consumer Purchase for such Book and the revenue split for Consumer Subscription for a Book shall be the same as that for the Institutional Subscription for such Book. The Registry will give Registered Rightsholders and the Unclaimed Works Fiduciary at least sixty (60) days’ notice prior to Google offering any additional Revenue Model, and the right to exclude their Books or unclaimed Books, as the case may be, from such additional Revenue Model pursuant to Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models).

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4.8 Public Access Service.

(a)

Public Access Service.

(i)

Free Public Access Service. Google may provide the

Public Access Service to each not-for-profit Higher Education Institution and

Public Library that so requests at no charge (and without any payment to the

Rightsholders, through the Registry or otherwise (other than as set forth in

Section 4.8(a)(ii) (Printing)) as follows:

(1)

in the case of not-for-profit Higher Education

Institutions that do not qualify as Associate’s Colleges pursuant to the

Carnegie Classification of Institutions of Higher Education, one computer

terminal for every ten thousand (10,000) Full-Time Equivalency (i.e., full-

time equivalent students) at each such institution (which computer

terminal may change from time to time);

(2)

in the case of not-for-profit Higher Education

Institutions that qualify as Associate’s Colleges pursuant to the Carnegie

Classification of Institutions of Higher Education, one computer terminal

for every four thousand (4,000) Full-Time Equivalency (i.e., full-time

equivalent students) at each such institution (which computer terminal

may change from time to time); and

(3)

in the case of each Public Library, one terminal per

Library Building; provided, however, that the Registry may authorize one

or more additional terminals in any Library Building under such further

conditions at it may establish, acting in its sole discretion and in

furtherance of the interests of all Rightsholders.

(ii)

Printing. Google shall design the Public Access Service

to enable users at a not-for-profit Higher Education Institution to print pages

from Display Books for a per-page fee, and to enable users at a Public

Library to print pages from Display Books for a per-page fee to the extent

that such Public Library offers per-page printing services for a fee for other

products and services. The Registry shall set a reasonable fee for such

printing. Google shall collect all such printing fees and shall pay them to the

Registry in accordance with the Standard Revenue Split for Purchases.

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(iii)

Additional Public Access Service. The Registry and

Google may agree that Google may make available the Public Access

Service to one or more Public Libraries or not-for-profit Higher Education

Institutions either for free or for an annual fee, in addition to the Public

Access Service provided under Section 4.8(a)(i) (Free Public Access

Service).

(b)

Commercial Public Access Service. The Registry

and Google may agree to make a commercial public access service

available to copy shops and other entities for an annual fee per

concurrent user and a fee per printed page.

4.9 Economic Terms Renegotiation. Unless otherwise agreed by the Registry and Google, the economic terms pertaining to any additional Revenue Models agreed pursuant to Section 4.7 (Additional Revenue Models) may, at the option of Google or the Registry, be renegotiated at the end of the three (3)-year period commencing with the Effective Date, and every four (4) years thereafter, or as otherwise mutually agreed by Google and the Registry. Google or the Registry shall give the other party notice at least ninety (90) days prior to the end of the then-current three (3)- or four (4)-year period, as applicable, of its exercise of its option to renegotiate. Such ninety (90)-day period may be extended by mutual written agreement of Google and the Registry. If the renegotiation is not successful, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). The then-current economic terms will apply unless and until the earlier of (a) Google and the Registry agreeing to such renegotiated terms or (b) the Arbitrator rendering a Decision. Without limiting the foregoing, the term “economic terms,” as used in this Section 4.9 (Economic Terms Renegotiation), does not include the Standard Revenue Split for Advertising or the Standard Revenue Split for Purchases.
ARTICLE V — OTHER SETTLEMENT BENEFITS

5.1 Cash Payment to Class Members Whose Books and Inserts Have Been Digitized.

(a)

Cash Payments. For every Principal Work, Entire

Insert or Partial Insert that Google Digitized on or before May 5,

2009 without the Rightsholder’s authorization and that is the subject

of a validated claim pursuant to Article XIII (Settlement

Administration Program), Google will make a Cash Payment to the

Settlement Fund of at least sixty United States dollars (U.S. $60) per

Principal Work, fifteen United States dollars (U.S. $15) per Entire

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Amended Settlement Agreement

Insert, and five United States dollars (U.S. $5) per Partial Insert (each, a “Cash Payment”). Such Cash Payments shall be distributed to the Rightsholders in accordance with the Plan of Allocation and the Author-Publisher Procedures. Only one Cash Payment will be made per Principal Work, Entire Insert or Partial Insert regardless of the number of times that Google has Digitized such Principal Work or Insert and regardless of the number of Books in which such Principal Work or Insert appears. If a Cash Payment is made for a Book, then no Cash Payment will be made for any portions of such Book that are used as Inserts. If a soft cover Book Digitized by Google and a hard cover Book Digitized by Google contain the same Principal Work, if the two (2) Books do not contain additional or different Protected Expression, only one Cash Payment for the Principal Work will be made even if the soft cover Book and hard cover Book have different ISBNs. A Rightsholder may claim either a Cash Payment for a Principal Work or a Cash Payment for any Expression from such Principal Work that is an Entire Insert or Partial Insert in any other Book, but not both.

(b)

Funding of Cash Payments. To fund the Cash

Payments, Google shall pay a minimum of forty-five million United

States dollars (U.S. $45 million) into the Settlement Fund. If the total

Cash Payments to be made in accordance with Section 5.1(a) (Cash

Payments) exceed such amount, then Google shall pay to the

Settlement Fund, in addition to such amount, the amount necessary to

make all Cash Payments.

(c)

Distribution of Overage. If the amount distributed

from the Settlement Fund to Rightsholders under Section 5.1(a)

(Cash Payments) is less than forty-five million United States dollars

(U.S. $45 million), then the remaining funds shall be reallocated in

accordance with the Plan of Allocation.

5.2 Payment For Registry, Notice and Claims Administration. In addition to the Cash Payments provided for in Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized), Google has paid or shall pay into the Settlement Fund thirty-four million five hundred thousand United States dollars (U.S. $34.5 million), as set forth in Section 5.3 (Timing of Payments under Sections 5.1 and 5.2). Plaintiffs will use all such funds for Administrative Costs.

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Amended Settlement Agreement

5.3 Timing of Payments under Sections 5.1 and 5.2.

(a)

Initial Settlement Deposit. Google deposited

twelve million United States dollars (U.S. $12 million) (the “Initial

Settlement Deposit”) on November 10, 2008 into an interest bearing

escrow account by wire transfer to the Depository Bank. The Initial

Settlement Deposit, and any additional funds from the Final

Settlement Deposit that Google may deposit pursuant to agreement of

Google and Class Counsel, shall be held in escrow in the Settlement

Fund and administered by the Settlement Administrator, Class

Counsel and the Depository Bank, pursuant to an escrow agreement

approved by Class Counsel and Google and subject to Section 5.3(f)

(Investment). Pursuant to the terms of the escrow agreement, upon

the Effective Date, any and all rights of Google to the Initial

Settlement Deposit, any such additional funds, and any interest or

income earned thereon shall cease to exist. Consequently, the terms

of the escrow agreement will provide that, as of the Effective Date,

the entire balance of the Initial Settlement Deposit and any such

additional funds shall be in the sole control of Class Counsel, subject

to Section 5.3(d) (Limitation of Use).

(b)

Final Settlement Deposit. No later than ten (10)

Business Days after the Effective Date, Google shall deposit the

amount of sixty-seven million five hundred thousand United States

dollars (U.S. $67.5 million) (the “Final Settlement Deposit”), less any

funds in addition to the Initial Settlement Deposit that may have been

paid pursuant to Section 5.3(a) (Initial Settlement Deposit), in the

Settlement Fund by wire transfer to the Depository Bank. The Final

Settlement Deposit consists of the balance of the amount owed under

Sections 5.1 (Cash Payment to Class Members Whose Books and

Inserts Have Been Digitized) and 5.2 (Payment for Registry, Notice

and Claims Administration).

(c)

Supplemental Deposit. In the event Google is

required to make additional Cash Payments pursuant to the second

sentence of Section 5.1(b) (Funding of Cash Payments), Google shall

deposit in the Settlement Fund an amount sufficient to fund the

additional Cash Payments (“Supplemental Deposit”) by wire transfer

to the Depository Bank, within ten (10) Business Days after the later

of (i) the date on which the Registry issues to the Plaintiffs and

Google its final report regarding Cash Payments pursuant to Section

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Amended Settlement Agreement

13.6 (Final Report Regarding Cash Payments) or (ii) the Effective Date.

(d)

Limitation of Use. Except as otherwise provided

in this Amended Settlement Agreement, no disbursement or other use

of any portion of the Settlement Fund shall be made without approval

of the Court.

(e)

Designation. The Settlement Fund is intended as,

and shall be, a separate escrow fund of moneys held at Depository

Bank and shall qualify as a “qualified settlement fund” within the

meaning of Treasury Regulation Section 1.468B-1. Class Counsel or

its designee shall be the “administrator” of the Settlement Fund

within the meaning of Treasury Regulation Section 1.468B-2(k)(3).

Class Counsel or its designee shall apply, or shall cause application to

be made, to the Internal Revenue Service for an employer

identification number on behalf of the Settlement Fund and shall

further cause to be prepared on behalf of the Settlement Fund any and

all required tax returns. Class Counsel or its designee shall file such

tax returns with all appropriate tax authorities and shall cause any

taxes shown due on such returns or otherwise and payable by the

Settlement Fund to be paid to the United States Treasury or other

taxing authority on behalf of the Settlement Fund from the funds on

deposit in the Settlement Fund. Class Counsel or its designee shall

do or cause to be done any and all other acts as may be reasonably

required to cause the Settlement Fund to qualify and remain qualified

as a “qualified settlement fund” as described above.

(f)

Investment. Until such time after the Effective

Date as the Settlement Fund is distributed to Rightsholders consistent

with the terms of this Amended Settlement Agreement and as

otherwise ordered by the Court, the Settlement Fund shall be invested

and reinvested by Class Counsel in United States Treasury Bills,

Notes or other obligations of the United States or its instrumentalities

of no more than six (6) months’ duration, except that such portions of

the Settlement Fund as may reasonably be needed to pay current

Administrative Costs, including expenses associated with providing

notice of the Settlement to the Amended Settlement Class, or

payment of taxes arising with respect to income earned by the

Settlement Fund (including the reasonable expenses of a tax attorney

or consultant and mailing and distribution costs and expenses related

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Amended Settlement Agreement

to filing tax returns), may be held in the form of cash or money market instruments. All interest and gains earned on the Settlement Fund or any portion thereof shall become and remain a part thereof. No party shall be responsible for any losses, principal or otherwise, of the Settlement Fund.

(g)

Payment of Administrative Costs. Prior to the

Effective Date, disbursements may be made from the Initial

Settlement Deposit, or any additional funds that may have been paid

pursuant to Section 5.3(a) (Initial Settlement Deposit), for reasonable

expenses actually incurred in paying Administrative Costs, in a total

amount not to exceed twelve million United States dollars (U.S. $12

million), or such other amount as Google and Class Counsel may

agree, without further order of the Court, and the amounts for

Administrative Costs incurred (including accrued-but-not-yet-paid

expenses) shall not be refundable to Google in the event this

Amended Settlement Agreement is disapproved, voided, or otherwise

fails to become final. No other payments, disbursement, or transfers

of any kind from the Settlement Fund, including Class Counsel’s

attorneys’ fees and costs of litigation, shall be made prior to the

Effective Date without leave of Court for good cause shown. Google

shall have no responsibility for the administration, operation,

investment or distribution of the Settlement Fund. Plaintiffs shall use

commercially reasonable efforts to minimize expenditures from the

Settlement Fund.

(h)

Google Rights and Obligations. Google shall not

have any responsibility to make any filings relating to the Settlement

Fund, and Google shall have no responsibility to pay taxes, including

interest and penalties due thereon, on interest earned by the

Settlement Fund. In the event the Settlement is not approved by the

Court or is otherwise terminated, the Settlement Fund (less any

Administrative Costs incurred) shall be promptly returned to Google,

and in such event Google shall be responsible for payment of all

taxes on interest earned on the Settlement Fund after the date of such

return.

5.4 Plan of Allocation. The Plan of Allocation sets forth the plan of allocating payments Google makes to or for the benefit of Registered Rightsholders under Sections 4.1 (Institutional Subscriptions), 4.2 (Consumer Purchases), 4.4 (Advertising Revenue Model), 4.7 (Additional Revenue Models), 4.8 (Public Access Service) and 5.1 (Cash

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Amended Settlement Agreement

Payment to Class Members Whose Books and Inserts Have Been Digitized). The Registry shall make payments to Registered Rightsholders from amounts received by it pursuant to Article IV (Economic Terms for Google’s Use of Books), or shall cause payments to be made from the Settlement Fund as provided in the Plan of Allocation and the Registry shall be responsible for correcting or causing to be corrected any errors in making such payments.
5.5 Attorneys’ Fees. Counsel for the Author Sub-Class shall apply to the Court for an award of attorneys’ fees and reimbursement of expenses in a total amount not to exceed thirty million United States dollars (U.S. $30 million). Google has agreed to pay those amounts over and above the other consideration to the Amended Settlement Class, and agrees not to undermine in any way, or encourage anyone else to undermine in any way, the petition for attorneys’ fees filed by Counsel for the Author Sub-Class so long as such petition seeks fees and reimbursement of expenses in the amount of thirty million United States dollars (U.S. $30 million). In no event will Google be obligated to pay any attorneys’ fees and expenses for Counsel for the Author Sub-Class in excess of thirty million United States dollars (U.S. $30 million). Attorneys’ fees and expenses consistent with this Section 5.5 (Attorneys’ Fees) that are granted by the Court shall be paid by the Depository Bank within ten (10) Business Days after the Effective Date by wire transfer to counsel for the Author Sub-Class.
ARTICLE VI — ESTABLISHMENT AND CHARTER OF REGISTRY

6.1 that:

Functions. Before the Effective Date, Plaintiffs will establish a registry

(a)

is authorized to act on behalf of Rightsholders as

set forth in this Amended Settlement Agreement,

(b)

will own and maintain a rights information

database for Books and Inserts and their authors and publishers,

(c)

will, from its inception, use commercially

reasonable efforts to locate Rightsholders of Books and Inserts,

(d)

will, on behalf of Rightsholders, receive payments

from Google under this Amended Settlement Agreement and

distribute those payments to Registered Rightsholders in accordance

with this Amended Settlement Agreement, the Plan of Allocation and

the Author-Publisher Procedures,

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Amended Settlement Agreement

(e)

will assist in the resolution of disputes between

Rightsholders,

(f)

will, upon request, monitor Google’s display and

pricing of Books for Rightsholders located outside of the United

States to ensure that they conform to the requirements of this

Amended Settlement Agreement and to such Rightsholders’

instructions, and use commercially reasonable efforts to provide a

means for such Rightsholders themselves to monitor and verify their

claimed Books, and

(g)

will have such other responsibilities (i) as are set

forth in this Amended Settlement Agreement and (ii) as the Charter

may permit or as the Board of Directors of the Registry may

determine are consistent with the Registry’s functions and are not

inconsistent with this Amended Settlement Agreement.

6.2 Charter.

(a)

Not-For-Profit Entity. The Registry will be

organized and operated as a not-for-profit entity, and all funds

received by the Registry under this Amended Settlement Agreement

will be for the exclusive direct or indirect benefit of the

Rightsholders, subject to the restrictions herein.

(b)

Organizational Structure.

(i)

General. The Registry will be organized on a basis that

allows the Registry, among other things, to (i) represent the interests of

Rightsholders in connection with this Amended Settlement Agreement, (ii)

respond in a timely manner to requests by Google, Fully Participating

Libraries and Cooperating Libraries, and (iii) to the extent permitted by law,

license Rightsholders’ U.S. copyrights to third parties (in the case of

unclaimed Books and Inserts, the Unclaimed Works Fiduciary may license to

third parties the Copyright Interests of Rightsholders of unclaimed Books

and Inserts to the extent permitted by law).

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Amended Settlement Agreement

(ii)

Board of Directors. The Registry will have equal

representation of the Author Sub-Class and the Publisher Sub-Class on its

Board of Directors, with each act of the Board requiring a majority of the

directors, with such majority including at least one director who is a

representative of the Author Sub-Class and one director who is a

representative of the Publisher Sub-Class. The Board of Directors will have

at least one representative of the Author Sub-Class from each of the

following countries: the United States, Canada, the United Kingdom and

Australia; and at least one representative of the Publisher Sub-Class from

each of the following countries: the United States, Canada, the United

Kingdom and Australia.

(iii)

Unclaimed Works Fiduciary. The Charter will provide

that the Registry’s power to act with respect to the exploitation of unclaimed

Books and Inserts under the Amended Settlement will be delegated to an

independent fiduciary (the “Unclaimed Works Fiduciary”) as set forth in

Sections 3.2(e)(i) (Change Requests by Rightsholders), 3.10 (Specific

Prohibitions), 4.2(c)(i) (Pricing Bins), 4.3 (Preview Uses), 4.5(b)(ii)

(Consumer Purchases), 4.7 (Additional Revenue Models), 6.2 (Charter), and

6.3 (Unclaimed Funds and Public Domain Funds) of the Amended

Settlement Agreement and Sections 3.2 and 3.3 (Procedures for Changing

Classification of a Book) of the Author-Publisher Procedures, and otherwise

as the Board of Directors of the Registry deems appropriate. The Unclaimed

Works Fiduciary will be a person or entity that is not a published book

author or book publisher (or an officer, director or employee of a book

publisher). The Unclaimed Works Fiduciary (and any successor) will be

chosen by a supermajority vote of the Board of Directors of the Registry and

will be subject to Court approval.

(iv)

Unclaimed Funds and Public Domain Funds. The Charter

will also direct the Registry to follow the guidelines in this Amended

Settlement Agreement regarding Unclaimed Funds and Public Domain

Funds described in Section 6.3 (Unclaimed Funds and Public Domain

Funds). The Registry will use funds from the Settlement, as well as

Unclaimed Funds as described in Section 6.3 (Unclaimed Funds and Public

Domain Funds), to attempt to locate Rightsholders of unclaimed Books and

Inserts.

(v)

Limitations. In addition, the Charter will prohibit the

Registry from coordinating Rightsholders for purposes of representing them

as a sub-group regarding any matter under this Amended Settlement

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Amended Settlement Agreement

Agreement, or working with any sub-group of Rightsholders to exclude their Books from Display Uses or Non-Display Uses, or to advocate that any subgroup of Rightsholders decrease its participation in the Settlement in any manner. Notwithstanding the foregoing, nothing herein shall limit or restrict the Registry from being able to represent the interests of all Author SubClass members as a sub-group or all Publisher Sub-Class members as a subgroup.

(c)

Registry Commitments. The Plaintiffs shall cause

the Registry (i) to ratify this Amended Settlement Agreement at the

first meeting of its Board of Directors; (ii) to adopt a resolution by

which the Registry shall become a signatory to this Amended

Settlement Agreement; (iii) to adopt a Certificate of Incorporation

and bylaws that implement the requirements of Sections 6.1

(Functions), 6.2 (Charter) and 6.3 (Unclaimed Funds and Public

Domain Funds); and (iv) to not take any act inconsistent with its

obligations under this Amended Settlement Agreement. Google will

have the right to approve such Certificate of Incorporation and

bylaws for conformance with the foregoing commitments prior to

their filing or adoption (as the case may be), such approval not to be

unreasonably withheld or delayed.

6.3 Unclaimed Funds and Public Domain Funds.

(a)

Unclaimed Funds.

(i)

Unclaimed Funds for Unclaimed Books.

(1)

Subject to clauses (2) and (3) below, any revenues paid

to the Registry and due to Rightsholders of Books that are unclaimed by

such Rightsholders under this Amended Settlement Agreement

(“Unclaimed Funds”) will be held by the Registry for the benefit of the

Rightsholder(s) of such Books until such Rightsholders register and claim

such Books.

(2)

Beginning with the sixth year after the Effective Date,

and every year thereafter, subject to the approval of the Unclaimed Works

Fiduciary, the Registry may use up to twenty-five percent (25%) of

Unclaimed Funds earned in any one year that have remained unclaimed

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Amended Settlement Agreement

for least five (5) years (such percentage to be allocated across all unclaimed Books in proportion to the Unclaimed Funds that they earned) for the purpose of attempting to locate the Rightsholders of unclaimed Books. The Board of Directors of the Registry, in consultation with the Unclaimed Works Fiduciary, will determine how to use such Unclaimed Funds to attempt to locate the Rightsholders of unclaimed Books, including the use, as appropriate, of national and international licensing and collecting societies, reproduction rights organizations, and associations of authors and publishers.

(3)

Beginning ten (10) years after the Effective Date, any

Unclaimed Funds shall be allocated proportionally to the United States,

Canada, the United Kingdom and Australia, based, respectively, on the

number of Books registered with the United States Copyright Office (for

the United States) and the number of Books published in Canada, the

United Kingdom and Australia. Subject to the approval of the Unclaimed

Works Fiduciary as to the timing of such motions, the Registry may file a

motion or motions with the Court recommending how Unclaimed Funds

held at least ten (10) years should be distributed to literacy-based charities

in each such country that directly or indirectly benefit the Rightsholders

and the reading public, after consultation with Google and, acting through

the Designated Representative, the Fully Participating Libraries and the

Cooperating Libraries. The charities will be entities that advance literacy,

freedom of expression, and/or education and are (a) described in Section

501(c)(3) of the Internal Revenue Code (for Unclaimed Funds from Books

registered with the United States Copyright Office), (b) organizations

qualifying as “Charitable Organizations,” as defined in Section 149.1 of

the Income Tax Act of Canada (for Books published in Canada), (c) any

body recognized as a charity under the Charities Act 2006, Charities and

Trustee Investment (Scotland) Act 2005 or Charities Act (Northern

Ireland) 2008 or any legislation replacing or amending such acts (for

Books published in the United Kingdom), or (d) charities that are exempt

from income tax in Australia (for Books published in Australia) and, for

avoidance of doubt, will not include the Authors Guild, Association of

American Publishers or other trade organizations. Such motion or

motions will be made with notice to and an opportunity to be heard by the

attorneys general of all states in the United States, all Rightsholders whom

the Registry will have been able to locate as of that time, and all Fully

Participating Libraries and Cooperating Libraries. This Section 6.3(a)(i)

(Unclaimed Funds for Unclaimed Books) is subject to Section 17.23

(Court’s Continuing Jurisdiction).

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Amended Settlement Agreement

(ii)

Abandoned Funds for Claimed Books. Any revenues due

to Registered Rightsholders of claimed Books will be held by the Registry

for the benefit of such Rightsholders until paid to such Rightsholders in

accordance with this Amended Settlement Agreement; provided that, any

such revenues that are abandoned in accordance with applicable law will be

distributed to the appropriate governmental authority in accordance with

applicable law.

(b)

Public Domain Funds. Funds that may be

mistakenly paid by Google to the Registry for books that are in the

public domain under the Copyright Act in the United States (“Public

Domain Funds”) will be distributed according to the guidelines set

forth in this Section 6.3(b) (Public Domain Funds). If Google pays

the Registry Public Domain Funds derived from Institutional

Subscriptions or Consumer Subscriptions, then those funds will be

distributed on a proportional revenue basis among Registered

Rightsholders whose Books are included within each subscription. If

Google pays the Registry Public Domain Funds from Consumer

Purchases, Advertising Uses, per-page printing fees pursuant to

Section 4.8(a)(ii) (Printing), or additional Revenue Models set forth

in Sections 4.7 (Additional Revenue Models) (if Google and the

Registry agree to implement such Revenue Models) and such funds

have not yet been paid to a Registered Rightsholder, then the Registry

will return those Public Domain Funds to Google for distribution, at

Google’s option, to a not-for-profit entity or to any consumer that

may have purchased access to a book that is in the public domain

under the Copyright Act in the United States. Google will have no

right to reclaim Public Domain Funds for a book that is in the public

domain under the Copyright Act in the United States from a Person

who claimed he, she or it is a Rightsholder of such book once the

Registry pays such funds to such Person.

(c)

Records and Reporting. The Registry shall keep

accurate records of its disbursement of Unclaimed Funds and Public

Domain Funds. The Registry shall prepare annual written reports of

the same and shall submit such reports to Google within forty-five

(45) days after the end of each calendar year.

(d)

Audit Rights. Google may, upon thirty (30) days’

prior notice and at its own expense, retain a nationally recognized

independent and mutually-acceptable independent auditor (whose

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Amended Settlement Agreement

fees are not contingency based), under a duty of confidentiality to the Registry, to review and audit the Registry’s relevant records to confirm the payments made under Section 6.3(a) (Unclaimed Funds) and Section 6.3(b) (Public Domain Funds). The audit shall: (i) be subject to the Registry’s security and confidentiality requirements; (ii) occur no more than once every calendar year and not during the first or last three (3) weeks of a calendar quarter; (iii) transpire during the Registry’s normal business hours; and (iv) cover a period not to exceed the previous four (4) calendar years. The Registry will promptly correct any payment errors. In addition, if the audit reveals an underpayment of five percent (5%) or more in the payments for any calendar quarter, then the Registry shall pay for the reasonable costs associated with the audit. The accounting firm may only disclose to Google whether or not the Registry is in compliance with its payment obligations under Section 6.3(a) (Unclaimed Funds) and Section 6.3(b) (Public Domain Funds) and, if the Registry is not in compliance, the amount of any underpayment and supporting calculations.

6.4 Funding and Technical Assistance. Google shall:

(a)

fund the set-up and operations of the Registry

according to the terms set forth in Section 5.2 (Payment For Registry,

Notice and Claims Administration); and

(b)

provide reasonable technical assistance with

respect to the design, development and maintenance of the Registry.

6.5 Google’s Rights to Registry Data.

(a)

Data for Google. The Registry will provide

Google with access to such Registry data, including all updates, as

are reasonably necessary for Google to perform its obligations under

this Amended Settlement Agreement.

(b)

Data for Fully Participating Libraries. The

Registry will provide Google with access to such Registry data,

including all updates, as are reasonably necessary for Fully

Participating Libraries to perform their obligations under their

respective Library-Registry (Fully Participating) Agreements.

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Amended Settlement Agreement

Google may provide to the Fully Participating Libraries such Registry data, including all updates, as are reasonably necessary for Fully Participating Libraries to perform their obligations under their respective Library-Registry (Fully Participating) Agreements.

(c)

Survival. Google’s rights to have access to data

about a Book or Insert will survive the expiration of the term of the

U.S. copyright in such Book or Insert and, to the extent that Google

requires access to data after the expiration of the terms of all U.S.

copyrights in all Books and Inserts, the Registry, if still operational at

such time, shall provide such access.

6.6 Exchange of Data between Google and the Registry.

(a)

Data Provided by Google. Google shall provide

the following to the Registry:

(i)

Digital Copies to Libraries. The name of any library to

which it has provided Digital Copies of Books Digitized in the United States

and, upon request of the Registry, the library at which a particular Book has

been Digitized.

(ii)

Digitized Books. On at least a quarterly basis, an update

to the list of Books, Public Domain Books with a copyright date after 1922

and Government Works that Google has Digitized under this Amended

Settlement Agreement along with Metadata with respect to such Books to the

extent that Google is permitted to do so under then-existing contracts with

Metadata providers. Google, Plaintiffs, and the Registry will cooperate to

obtain such Metadata providers’ permission for Google to provide Plaintiffs

and the Registry with such lists; provided that the Registry shall be

responsible for payment of any additional license fees to such providers to

the extent required. In communicating between them, Google and the

Registry will use a unique identifier for each Book, Public Domain Book

with a copyright date after 1922 or Government Work. The update for a

Book, Public Domain Book with a copyright date after 1922 or Government

Work will be available within a reasonable period after Digitization and

completion of processing of such Book, Public Domain Book with a

copyright date after 1922 or Government Work by Google. The data

provided shall include information for each Book regarding the Display

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Amended Settlement Agreement

Uses, if any, that are being made of the Book and identification of any Books that Google is not offering for sale, including any Books that Google excludes from Display Uses for non-editorial reasons (in addition to Google’s obligation under Section 3.7(e) (Google’s Exclusion of Books)). The Registry will use this information for internal purposes only, provided that an individual record of a Book, Public Domain Book with a copyright date after 1922 or Government Work may be disclosed by the Registry to any Rightsholder of that Book or an Insert in that Book, Public Domain Book with a copyright date after 1922 or Government Work. The Registry may need permission from Metadata providers to obtain such Metadata, and will be responsible for payment of any additional license fees to the extent required by such providers.

(iii)

Books Sold. Along with the payments required under

Section 4.6 (Payment Terms) for the applicable period, a list of the Books

sold, the number of Books sold, and, for each such sale, the sale price.

(iv)

Library Scans. Upon request by the Registry and if a

Fully Participating Library or a Cooperating Library invokes its rights

pursuant to Section 7.2(e)(ii) (Third-Party Required Library Services

Provider), reasonable information regarding Google’s provision of Required

Library Services, to determine compliance with Section 7.2(e)(i)

(Obligation).

(v)

Usage Data. Data sufficient to enable the Registry to

calculate Subscription Usage Fees and Book Usage Fees, as defined in the

Plan of Allocation.

(vi)

Registration/Claims Process Data. All data provided to

Google by members of the Amended Settlement Class or their agents in

connection with the registration, claims, and opt out processes. Such data

shall be subject to a Registry privacy policy.

(vii)

Additional Information. Additional data, including

updates, as reasonably necessary for the Registry to perform its obligations

under this Amended Settlement Agreement.

(b)

No Google Licenses. Except with respect to (i) the

limited right to use Digital Copies of Library Scans and of Books

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Amended Settlement Agreement

other than Library Works provided by Google pursuant to Section 3.7(c) (Additional Contemplated Rightsholder Services Provider), Section 7.2(e)(ii) (Third-Party Required Library Services Provider) and Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider) and (ii) the limited right to use information provided by Google pursuant to Section 6.6(a) (Data Provided by Google), no licenses are granted by Google to the Rightsholders, the Registry, Plaintiffs or any other Person pursuant to this Amended Settlement Agreement, by implication, estoppel or otherwise.

(c)

Data Provided by the Registry. The Registry shall

provide the following to Google:

(i)

Books Claimed. A list of all Books and Inserts for which

a Registered Rightsholder has registered with the Registry, instructions with

respect to the Removal of Books and the exclusion or inclusion of Books and

Inserts pursuant to Article III (Google Book Search – Rights, Benefits and

Obligations) and to the Specified Price pursuant to Section 4.2(b)(i)(1)

(Specified Price), and any other directions for Books and Inserts provided for

in this Amended Settlement Agreement.

(ii)

Metadata Corrections. Any corrections to the Metadata,

and any other corrections or modifications to information the Registry

previously provided to Google regarding a Book or Insert.

(iii)

Registered Rightsholders. The identity of any Registered

Rightsholder for a given Book or Insert; provided, however, that if the Book

or the Insert was published under a pseudonym, then the Registry will only

disclose that pseudonym to Google and, provided further, that if a

Rightsholder requests that his, her or its identity not be disclosed to Google,

then the Registry will only disclose an alias. The Registry will neither

encourage Rightsholders to request, nor discourage Rightsholders from

requesting, such non-disclosure. The Registry will also provide a means for

Google to match contact information and other identifying information for a

Rightsholder against the Registry’s information pertaining to that

Rightsholder. Such mechanism need not reveal the Rightsholder’s contact

information to Google. Rightsholder information provided by the Registry is

subject to the terms of Section 15.3 (Confidentiality of Rightsholder

Information).

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Amended Settlement Agreement

(d)

Claimed Books to be Public. The Registry will

make publicly available whether or not a Book has been registered

with the Registry and, for Books that have been registered, the

identity of the Registered Rightsholder, unless the Registered

Rightsholder requests that such information not be made public for

reasonable privacy concerns, as determined by the Registry.

(e)

Copyright Status. The Registry and Google will

provide each other with information that each obtains bearing on the

copyright status of works that are or may be Books or Inserts.

(f)

No Personally Identifiable Information. In no

event will Google provide personally identifiable information about

end users to the Registry other than as required by law or valid legal

process.

6.7 Authorization of Registry. Where this Amended Settlement Agreement confers on the Registry rights and obligations with respect to Books and Inserts, including with respect to the Registry’s relationship with each of Google, the Fully Participating Libraries, the Cooperating Libraries and the Public Domain Libraries, Plaintiffs and all Rightsholders, as of the Effective Date, shall be deemed to have authorized the Registry to exercise such rights and perform such obligations on behalf of the Rightsholders with respect to their respective Books and Inserts, including to enter into Library-Registry Agreements. In no event, however, may the Registry direct Google to change the classification of a Book, include or exclude a Book or Insert in or from any Display Use, or take any other action, that is contrary to such Book or Insert Rightsholder’s express direction with respect to such Book or Insert, as made pursuant to and in conformance with this Amended Settlement Agreement.
ARTICLE VII — FULLY PARTICIPATING LIBRARY AND COOPERATING LIBRARY RIGHTS AND OBLIGATIONS

7.1 Becoming a Fully Participating Library or a Cooperating Library. Google shall notify the Registry when it has identified a library that wishes to become a Fully Participating Library or a Cooperating Library. The Registry shall have approval rights as to whether a library may become a Fully Participating Library or a Cooperating Library; provided, however, that in all cases the Registry may only withhold its approval for a library to become a Fully Participating Library or a Cooperating Library due to (a) reasonable concerns as to whether the library can comply with the obligations imposed on a Fully Participating Library or a Cooperating Library by this Amended Settlement

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Amended Settlement Agreement

Agreement or the applicable Library-Registry Agreement or (b) the library expressing its intent not to comply with the obligations imposed on a Fully Participating Library or a Cooperating Library by this Amended Settlement Agreement or the applicable LibraryRegistry Agreement. The libraries identified on Attachment G (Approved Libraries) are approved to become Fully Participating Libraries and Cooperating Libraries upon execution of an applicable Library-Registry Agreement.
7.2 Fully Participating Library Uses.

(a)

Making of Library Digital Copies.

(i)

Fully Participating Library Collections. Google may

provide each Fully Participating Library with (and each Fully Participating

Library may receive and retain) a Library Digital Copy. Google may construct

a Digital Copy of a Book from one or more physical books into a composite

version of the Book, which may include alternative page images from different

copies of the Book that Google obtains from sources other than the Fully

Participating Library. Google may provide to a Fully Participating Library, as

technology improves, a technologically updated Library Digital Copy of

Books in that Fully Participating Library’s Collection.

(ii)

Books Not Digitized From the Fully Participating Library’s

Collection. Google may provide a Fully Participating Library with Digital

Copies of Books in the Fully Participating Library’s Collection that Google did

not Digitize from the Fully Participating Library’s Collection; provided,

however, that a Fully Participating Library may receive an LDC of all of the

Books in its Collection only if, for a Fully Participating Library with holdings

of nine hundred thousand (900,000) volumes (i.e., books and not Periodicals or

bound volumes of Periodicals) or more, Google Digitizes more than three

hundred thousand (300,000) volumes from that Fully Participating Library’s

holdings, or, for a Fully Participating Library with holdings of fewer than nine

hundred thousand (900,000) volumes, Google Digitizes more than thirty

percent (30%) of the volumes from that Fully Participating Library’s holdings.

Google will not provide a Fully Participating Library with a Digital Copy of

any Book that is not held by that Fully Participating Library.

(iii)

Institutional Consortia. For any Institutional Consortium

that (1) exists as of the Amended Settlement Agreement Date, and (2) with

which Google has a Digitization Agreement, Google may provide each Fully

Participating Library that is a member of that Institutional Consortium with

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Amended Settlement Agreement

Digital Copies of Books in that Fully Participating Library’s Collection that Google did not Digitize from that Fully Participating Library’s Collection, provided, however, that a Fully Participating Library may receive an LDC of all of the Books in its Collection only if at least ten thousand (10,000) volumes (i.e., books and not Periodicals or bound volumes of Periodicals) were Digitized from such Fully Participating Library’s holdings, and (a) if the sum of the holdings for all Fully Participating Libraries in the Institutional Consortium is two million (2,000,000) volumes or more, Google Digitizes more than six hundred fifty thousand (650,000) volumes from those Fully Participating Libraries’ holdings, or (b) if the sum of the holdings for all Fully Participating Libraries in the Institutional Consortium is fewer than two million (2,000,000) volumes, Google Digitizes more than thirty percent (30%) of the holdings in aggregate from those Fully Participating Libraries’ holdings. Google will not provide such a Fully Participating Library with a Digital Copy of any Book that is not held by that Fully Participating Library.

(iv)

Limitations. Google shall not provide Digital Copies of

Books Digitized in the United States to any Person other than a Fully

Participating Library, except as authorized in this Amended Settlement

Agreement, or with prior Registry or Rightsholder approval. This Amended

Settlement Agreement neither authorizes nor prohibits, nor releases any

Claims with respect to, any volumes that are Digitized by Google and

provided to any Fully Participating Library except and solely to the extent

that such volumes are Books or contain Inserts.

(b)

Use of Library Digital Copies. Each Fully

Participating Library may make the following uses of its LDC:

(i)

Technical Adaptations. The Fully Participating Library

may reproduce and make technical adaptations to (but not adapt or alter the

content of) its LDC as reasonably necessary to preserve, maintain, manage,

and keep technologically current its LDC.

(ii)

Users with Print Disabilities.

(1)

Special Access. The Fully Participating Library may

provide special access to Books in its LDC to a user who has provided

written documentation that a Person having the credentials of a Competent

Authority has certified that such user has a Print Disability. A

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Amended Settlement Agreement

professional librarian shall not be permitted to certify a user’s claimed Print Disability for purposes of this Section 7.2(b)(ii)(1) (Special Access) except in those circumstances in which the user affirms in writing to such librarian that no Competent Authority is available to the user for that purpose or in which the user has a Print Disability that is readily apparent upon physical observation of the user. A certified user may be permitted to access Books in the LDC in the form of electronic text used in conjunction with screen enlargement, voice output, or refreshable Braille displays. A Fully Participating Library will not provide a certified user with such special access to Books in its LDC in a manner that would make any copy ordinarily accessible to anyone other than such certified user, or ordinarily accessible to such certified user for a longer period than is reasonably necessary to facilitate such special access, except in circumstances in which the Fully Participating Library cannot otherwise provide the user with a reasonable accommodation for such user’s Print Disability.

(2)

Certification. A Fully Participating Library that

provides special access to certified users under this Section 7.2(b)(ii)

(Users with Print Disabilities) shall require each such user to sign or

otherwise personally acknowledge a standard form agreement (to be

agreed upon by the Registry and such Fully Participating Library) that will

evidence such user’s awareness and acceptance of terms of use that

prohibit use, reproduction or distribution that is prohibited by the

Copyright Act or by such terms and conditions of Books in the LDC, and

that will provide for the loss of further special access to such Books

through the LDC as a possible consequence of violating such terms. Each

Fully Participating Library shall also maintain data about its provision of

such access to each certified user that is sufficient to enable an auditor to

annually certify the Fully Participating Library’s compliance with this

Section 7.2(b)(ii) (Users with Print Disabilities) but does not disclose the

identity of any certified user.

(3)

Limitation. The provisions of this Section 7.2(b)(ii)

(Users with Print Disabilities) apply to and authorize a Fully Participating

Library’s use of Books in its LDC only for the purpose of reasonably

accommodating the needs of certified users with Print Disabilities as

required by applicable federal or state law and regulations, and do not

authorize access to or use of Digital Copies in the LDC of such Books by

other Persons for such purpose or any other purpose except for Persons

assisting such certified users with Print Disabilities.

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Amended Settlement Agreement

(4)

Changes. When warranted by changes in disability

laws, the Copyright Act, the nature of Print Disabilities, or the assistive

technology available to reasonably accommodate Print Disabilities, the

Registry will, upon request by a Fully Participating Library, grant such

Fully Participating Library permission to provide a certified user with

special access to Books in the LDC in a form or manner that is not

permitted by the terms of this Section 7.2(b)(ii) (Users with Print

Disabilities), but is deemed necessary to reasonably accommodate the

Print Disability needs of that user. The Registry will not unreasonably

withhold or delay its approval of these requests and will, where it can

reasonably anticipate the receipt of the same request from other Fully

Participating Libraries, extend the same permission to all Fully

Participating Libraries through an appropriate process of written notice to

the Designated Representative.

(iii)

Replacements.

(1)

Replacement Copy. The Fully Participating Library

may use its LDC to create a print format replacement copy of a Book

solely for the purpose of replacing a copy of such Book that is damaged,

destroyed, deteriorating, lost, or stolen, or if the existing format in which

the Book is stored has become obsolete, provided that the Fully

Participating Library has, after a reasonable effort, determined that an

unused replacement cannot be obtained at a fair price. For these purposes

an “unused replacement” for a copy in print format means an unused copy

that is offered for sale in print format and does not derive from a copy

Digitized from a Fully Participating Library.

(2)

Replacement of Replacement Copies. Any replacement

copy made by the Fully Participating Library under Section 7.2(b)(iii)(1)

(Replacement Copy) that itself is damaged, destroyed, deteriorating, lost,

or stolen may be replaced pursuant to this Section 7.2(b)(iii)

(Replacements).

(3)

Limitation. Notwithstanding anything herein to the

contrary (including Section 7.2(d) (Research Corpus)), any use by a Fully

Participating Library of a print format replacement copy made under

Section 7.2(b)(iii) (Replacements) is not subject to the terms of this

Amended Settlement Agreement.

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Amended Settlement Agreement

(iv)

Finding Tools. The Fully Participating Library may

develop or obtain and may deploy finding tools that allow its users to

identify pertinent Books within its LDC or generate information from its

LDC. Such tools or generated information will not permit users to read or

view any material from the LDC that is Protected Expression, except that

such users may read or view Front Matter Display and, in response to a

search request, a limited number of Snippets for the purpose of enabling the

user to verify which Book has been identified. For a No Display Book, if

requested by a Rightsholder of that Book, Fully Participating Libraries will

stop displaying Snippets as part of the finding tools. Such tools or generated

information may not involve the creation of any additional copies of

Protected Expression other than transitory copies for Non-Display Uses. For

purpose of this provision, representations of Books in index form are not

copies.

(v)

Orphan Works. If the Copyright Act is amended after the

Amended Settlement Agreement Date to allow use of orphan works, the

Fully Participating Library may use such works from its LDC in accordance

with the statute.

(vi)

Use for Non-Consumptive Research. Upon notice to the

Registry in accordance with its Library-Registry (Fully Participating)

Agreement, the Fully Participating Library may allow Qualified Users to

conduct Non-Consumptive Research on its LDC, provided that such Fully

Participating Library complies with the provisions of Section 7.2(d)

(Research Corpus) as if such Fully Participating Library were a Host Site and

as if the Fully Participating Library’s LDC were the Research Corpus.

(vii)

Personal Scholarly Use and Classroom Use. The Fully

Participating Library, if part of a Higher Education Institution, may allow

faculty members and research staff of that Higher Education Institution to

read, print, download or otherwise use up to five (5) pages of any Book from

its LDC that is not Commercially Available for the following purposes: (1)

personal scholarly use (for each Book, no more than once per person per

term) and (2) classroom use in such Higher Education Institution that is

limited to the instructors and students in the class and for the term in which

the class is offered; provided that (a) the Fully Participating Library does not

know at the time of such use that it is in material non-compliance with

Section 8.2 (Security Standard, Security Implementation Plan and Security

Audits) with respect to uses of the LDC authorized pursuant to this Section

7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (b) the Fully

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Amended Settlement Agreement

Participating Library keeps track of and reports all such uses of Books to the Registry in the course of the audit conducted pursuant to Section 8.2(c) (Audits) or, otherwise, upon reasonable request of the Registry, provided that such requests may be made no more than semi-annually. The Registry may make information from such reports regarding the usage of an individual Book available to the Rightsholder of such Book upon request of the Rightsholder. A Fully Participating Library may not read, print, download or otherwise use a Book or Insert through its LDC pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) if such use is available through the Institutional Subscription and the Institutional Subscription service is offered or is available to the Fully Participating Library (whether for a fee or as a beta product) at the time such Fully Participating Library seeks to make such use.

(viii) Support Personnel. The Fully Participating Library may allow the Fully Participating Library’s support personnel, archivists, information technology personnel and legal counsel to read, print, download, or otherwise use Books from its LDC as reasonably necessary to carry out their responsibilities with respect to the LDC. A Hosting Fully Participating Library’s support personnel, information technology personnel and legal counsel may have access to the LDC of a Requesting Fully Participating Library as reasonably necessary to carry out their responsibilities with respect to hosting such LDC.

(ix)

Other Uses.

(1)

Approval by Registry. If agreed by the Registry, a

Fully Participating Library may, upon request, make lawful uses of its

LDC other than the uses authorized by this Amended Settlement

Agreement, provided that such uses do not impair the rights of

Rightsholders under this Amended Settlement Agreement.

(2)

Approval by Rightsholders. The Registry will forward

requests from any Fully Participating Library for authorization from any

Registered Rightsholder of a Book to make a use of its Digital Copy of

that Book which use is otherwise prohibited or not authorized by this

Amended Settlement Agreement. The Registry will provide a response to

such Fully Participating Library promptly in the event that the Registered

Rightsholder provides a response to the Registry and, if agreed by the

Registered Rightsholder, allow the Fully Participating Library to contact

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Amended Settlement Agreement

the Registered Rightsholder directly to discuss such request. A Fully Participating Library may make uses of its LDC authorized by such Registered Rightsholder and consistent with such Fully Participating Library’s Digitization Agreement with Google.

(x)

Use of Contractors.

(1)

Fully Participating Libraries Hosting for Other Fully

Participating Libraries. Any Fully Participating Library (the “Requesting

Fully Participating Library”) may authorize another Fully Participating

Library or group of Fully Participating Libraries acting together (each

such other Fully Participating Library, a “Hosting Fully Participating

Library”) to host and store the Requesting Fully Participating Library’s

LDC in a single repository, separately or together with other Requesting

Fully Participating Libraries’ LDCs. The Hosting Fully Participating

Library shall protect the security of the Requesting Fully Participating

Library’s LDC from Prohibited Access and Third-Party Unauthorized

Access in the same way that it is obligated to protect the security of its

own LDC under Article VIII (Security and Breach). The Requesting Fully

Participating Library may use its LDC as permitted under this Amended

Settlement Agreement. The Hosting Fully Participating Library, and not

the Requesting Fully Participating Library, shall be liable for the Hosting

Fully Participating Library’s compliance with Article VIII (Security and

Breach) with respect to the Requesting Fully Participating Library’s LDC

hosted by the Hosting Fully Participating Library; provided that the

Requesting Fully Participating Library is responsible for any act of the

Requesting Fully Participating Library that results in any Prohibited

Access or any Third-Party Unauthorized Access to its LDC. The Hosting

Fully Participating Library may not make any use of the Requesting Fully

Participating Library’s LDC, except to the extent required to host the

Requesting Fully Participating Library’s LDC and to enable the

Requesting Fully Participating Library to use its LDC as permitted under

this Amended Settlement Agreement.

(2)

Other Uses of Contractors. Any Fully Participating

Library may authorize third parties to exercise rights on behalf of such

Fully Participating Library or to perform any of its obligations under this

Amended Settlement Agreement, including the hosting and storage of

such Fully Participating Library’s LDC, in which case such Fully

Participating Library shall, at all times, be and remain responsible for

ensuring that such parties act in accordance with this Amended Settlement

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Amended Settlement Agreement

Agreement, except as set forth otherwise in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries). Such Fully Participating Library shall be liable for any such third party’s nonconformance with or breach of this Amended Settlement Agreement, and such breaches shall be regarded as breaches by such Fully Participating Library for purposes of Article VIII (Security and Breach), except as set forth otherwise in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).

(c)

Prohibited Uses of Library Digital Copies. Each

Fully Participating Library is prohibited from making the following

uses of its LDC unless authorized by (i) the Book Rightsholder

pursuant to Section 7.2(b)(ix)(2) (Approval by Rightsholders) or

otherwise or (ii) the Registry pursuant to Section 7.2(b)(ix)(1)

(Approval by Registry):

(i)

Directly or indirectly selling Books or access to Books;

(ii)

Except as permitted pursuant to Section 7.2(b) (Use of

Library Digital Copies), directly or indirectly providing access that enables

any Person to read, print or download any Protected Expression from the

LDC, provided, however, that if, at any time, an Institutional Subscription is

neither offered by nor available from any of Google, an Additional

Contemplated Rightsholder Services Provider or a Third-Party Required

Library Services Provider, on the terms set forth in this Amended Settlement

Agreement, such Fully Participating Library may, if part of a Higher

Education Institution, for faculty, staff and students of, or other users who

would be entitled to use the Institutional Subscription in, that Higher

Education Institution, make use of Books in its LDC that are not

Commercially Available at such time, except as prohibited by any of Section

7.2(c)(i), (iii), (iv), (v), or (vi), if (A) such use is first approved by both (1)

the University Librarian of such Fully Participating Library, his or her

functional equivalent, or his or her designee, and (2) the General Counsel of

such Fully Participating Library, his or her functional equivalent, or his or

her designee; and (B) such Fully Participating Library maintains records of

any such uses and submits reports of such uses to the Registry promptly

upon request from the Registry, provided that such requests may be made no

more than semi-annually;

(iii)

For inter-library loan;

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Amended Settlement Agreement

(iv)

For e-reserves;

(v)

In course management systems; and

(vi)

Any other use not so authorized that would violate the

U.S. copyright of the Rightsholder of such Book.

(d)

Research Corpus.

(i)

Creation and Use. The Research Corpus may be created

and used for Non-Consumptive Research in accordance with this Section

7.2(d) (Research Corpus).

(ii)

Host Sites. The Research Corpus may be hosted at up to

two Host Sites at any given time. At the request of a Fully Participating

Library or a Cooperating Library, Google may also become a Host Site

(which would be a third Host Site if the Research Corpus is already hosted at

two Host Sites) with the approval of the Registry, such approval not to be

unreasonably withheld or delayed. Each Host Site must be located in the

United States. The Host Sites will be chosen by the Fully Participating

Libraries and the Cooperating Libraries, acting through the Designated

Representative, in consultation with Google. Google will inform the

Registry of the identity of each Host Site. Any Host Site that is not a Fully

Participating Library, a Cooperating Library or Google must be approved by

the Registry, such approval not to be unreasonably withheld or delayed;

provided, however, that in all cases the Registry may only withhold its

approval for an institution to become a Host Site due to (1) reasonable

concerns as to whether the Host Site can comply with the obligations

imposed on a Host Site by this Amended Settlement Agreement or the Host

Site-Registry Agreement or (2) the Host Site expressing its intent not to

comply with the obligations imposed on a Host Site by this Amended

Settlement Agreement or the Host Site-Registry Agreement. An institution

becomes a Host Site upon execution of an agreement with the Registry (the

“Host Site-Registry Agreement”) that incorporates the applicable provisions

of this Section 7.2(d) (Research Corpus), Article VIII (Security and Breach),

the Security Standard, the provisions of Article IX (Dispute Resolution) and

other reasonable terms, and upon provision of a Security Implementation

Plan under the procedures of Article VIII (Security and Breach); provided

that Google is not required to execute a Host-Site Registry Agreement in

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order to become a Host Site; provided, further, that if Google becomes a Host Site, Google shall comply with this Section 7.2(d) (Research Corpus) and with the procedures of Article VIII (Security and Breach) applicable to a Host Site and any access by Google in breach of the terms of this Section 7.2(d) (Research Corpus) shall constitute Prohibited Access. The Host SiteRegistry Agreement will authorize the Host Site to enter into agreements with Qualified Users, reviewers and challengers pursuant to Section 7.2(d)(xi)(2) (Research Agenda) and Section 7.2(d)(xi)(8) (Reviewers and Challengers) on behalf of the Registry, as the Registry’s agent. Any disputes between the Registry and the Host Site as to the terms to be included in the Host Site-Registry Agreement shall be resolved pursuant to Article IX (Dispute Resolution).

(iii)

Qualified Users; Non-Consumptive Research. The Host

Sites may provide both on-site and remote access to Qualified Users to use

the Research Corpus for Non-Consumptive Research purposes only and to

reviewers and challengers of such Non-Consumptive Research, subject to

Section 7.2(d)(xi)(8) (Reviewers and Challengers). Only Qualified Users,

reviewers and challengers, and the Host Site will have access to the Research

Corpus, and only for the purposes set forth in this Section 7.2(d) (Research

Corpus).

(iv)

Right to Withdraw Library Scans. If a Library Work is

Commercially Available as of the Notice Commencement Date or becomes

Commercially Available at any time during the two (2)-year period after the

Notice Commencement Date, a Rightsholder of such Library Work may, at

any time during such two (2)-year period or thereafter, withdraw the Library

Scan of that Library Work from the Research Corpus; provided that, if, at

any time after the end of such two (2)-year period the Library Work ceases to

be Commercially Available, then the Library Scan of that Library Work will

be returned to the Research Corpus. If, as of the Notice Commencement

Date, a Library Work for which Google uses a Library Scan is not

Commercially Available but Google mistakenly determined it to be

Commercially Available, and such Library Work does not become

Commercially Available at any time during the two (2)-year period

following the Notice Commencement Date, then upon determination that the

Library Work is not Commercially Available after such two (2)-year period,

the Rightsholder will not have any right to withdraw such Library Scan from

the Research Corpus pursuant to this Section 7.2(d)(iv) (Right to Withdraw

Library Scans). If, as of the Notice Commencement Date or at any time

during the two (2)-year period following the Notice Commencement Date, a

Library Work is Commercially Available but is mistakenly determined to be

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not Commercially Available, then, upon determination that such Library Work is Commercially Available, the Rightsholder will have the right to withdraw the Library Scan of that Library Work from the Research Corpus; provided, however, that, if, at any time after the end of such two (2)-year period the Library Work ceases to be Commercially Available, then, if the Library Scan of such Library Work had been previously withdrawn, such Library Scan will be returned to the Research Corpus. This Amended Settlement Agreement does not restrict the addition of other books to the Research Corpus (e.g., Public Domain Books and Books obtained from the Google Partner Program Digitized with authorization from the Rightsholder).

(v)

Identification of Works in Research Corpus. Google or

the Host Site will make available to Qualified Users information about what

Books are included in the Research Corpus.

(vi)

Limitations on Non-Consumptive Research. The Host

Site shall be responsible for oversight over research performed on the

Research Corpus so that such research adheres to the following limitations:

(1)

No Person may, in the course of conducting, reviewing

or challenging the results of, Non-Consumptive Research use Protected

material through the Research Corpus for purposes that involve reading

portions of a Book to understand the intellectual content presented within

a Book;

(2)

It is permissible, however, for Qualified Users to read

Protected material within the Research Corpus as reasonably necessary to

carry out Non-Consumptive Research, and for reviewers or challengers of

the results of Non-Consumptive Research to read Protected material as

reasonably necessary to analyze or verify such results; and

(3)

A Qualified User may extract from the Research

Corpus and disclose to other Persons only a limited amount of Protected

material as reasonably necessary to explain or discuss the Non-

Consumptive Research and its results.

(vii)

Publication of Results. Qualified Users are permitted to

report the results of their Non-Consumptive Research in scholarly

publications, which may constitute indirect commercial use (e.g., reporting

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results in journal articles or in books sold to the academic community or to the public).

(viii) No Commercial Use. Except with the express permission of the Registry and Google, direct, for profit, commercial use of information extracted from Books in the Research Corpus is prohibited.

(ix)

Use of Data. Use of data extracted from specific Books

within the Research Corpus to provide services to the public or a third party

that compete with services offered by the Rightsholder of those Books or by

Google is prohibited. When requested by a Rightsholder or by the Registry

on behalf of a Rightsholder, a Qualified User will be required to remove any

and all data extracted from the Books of that Rightsholder from a service

offered to the public or a third party by the Qualified User if that service

competes with services offered by the Rightsholder of those Books. When

requested by Google, a Qualified User will be required to remove any and all

data extracted from Books from a service offered to the public or a third

party by the Qualified User if that service can reasonably be construed as

competing with services offered by Google at the time the Qualified User’s

service is first made accessible.

(x)

Use of Algorithms. Commercial exploitation of

algorithms developed when performing Non-Consumptive Research on the

Research Corpus is permitted.

(xi)

Governance and Maintenance. Governance of the

maintenance and use of the Research Corpus shall be as follows:

(1)

Qualified Users Only. Only Qualified Users will be

permitted to conduct Non-Consumptive Research using the Research

Corpus.

(2)

Research Agenda. Prior to engaging in Non-

Consumptive Research, a Qualified User will file with the Host Site: (a) a

Research Agenda, (b) an agreement between the Qualified User and the

Host Site, as agent for the Registry, that prohibits access to and use of the

Research Corpus except for permitted Non-Consumptive Research and

that makes the Qualified User directly liable to the Registry for any breach

of its terms, and (c) a letter from a Fully Participating Library, a

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102

Cooperating Library, the Registry, Google or the Host Site indicating that the submitting entity will accept responsibility for the Qualified User’s use of the Research Corpus. The Host Site shall maintain these documents on file and shall make them available to the auditors for review pursuant to Section 7.2(d)(xi)(6) (Audits). Except to the extent that disclosure is required by law or this Amended Settlement Agreement, the Host Site, the Registry and auditors will treat all Research Agendas as confidential.

(3)

Review of Research Agenda. Prior to allowing a

Qualified User access to the Research Corpus, the Host Site will review

each Research Agenda for the purpose of determining whether the agenda

demonstrates that the research will be Non-Consumptive Research.

Through the audit performed pursuant to Section 7.2(d)(xi)(6) (Audits),

the Registry reserves the right to verify that the Host Site implements such

review process.

(4)

Reasonable Discretion. A Host Site may deny a

Qualified User’s access to the Research Corpus at its reasonable

discretion.

(5)

Management. Each Host Site will manage the Research

Corpus in adherence with the governance and maintenance provisions of

this Section 7.2(d)(xi) (Governance and Maintenance).

(6)

Audits. Regular audits of each Host Site will be

performed by a qualified third party reasonably acceptable to the Registry

and the Host Site to ensure compliance with the governance and use terms

set forth in this Section 7.2(d)(xi) (Governance and Maintenance). The

audit shall be subject to reasonable prior notice to the Host Site, shall be

conducted during the Host Site’s normal business hours and shall be

conducted no more than once in any twelve (12)-month period. The costs

of the audit will be subject to the terms of Section 8.2(c) (Audits).

(7)

Development. Each Host Site will have the ability to

access the Research Corpus for purposes of developing, testing and

maintaining the Host Site platform, creating back-up copies of the

Research Corpus, and keeping the Research Corpus technologically

current.

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(8)

Reviewers and Challengers. Prior to a Qualified User

providing reviewers and challengers with access to Books within the

Research Corpus, such reviewers and challengers shall execute an

agreement with the Host Site, as agent for the Registry, limiting their use

to reviewing and challenging the research conducted pursuant to Section

7.2(d)(xi)(2) (Research Agenda).

(xii)

No Other Restrictions. None of the restrictions in this

Section is intended to limit the right to access or use (1) any copyrighted

material obtained from sources outside of the Research Corpus or (2) except

as specifically set forth in Section 7.2(d)(viii) (No Commercial Use) and

Section 7.2(d)(ix) (Use of Data), any material not Protected under the

Copyright Act.

(xiii) Costs. The Registry is not responsible for any costs relating to the use of the Research Corpus, except as specifically set forth in Section 8.2(c) (Audits).

(e)

Required Library Services Requirement.

(i)

Obligation. Google will provide the following services

listed in clauses (1) and (2) below (together, “Required Library Services”) by

no later than five (5) years from the Effective Date:

(1)

For eighty-five percent (85%) of Library Scans other

than (a) Not Counted Library Works and (b) Display Books, free search

services Online through Google Products and Services (including Preview

Use or Snippet Display if permitted under this Agreement) and a Library

Link; and

(2)

For eighty-five percent (85%) of Library Scans other

than (a) Not Counted Library Works, (b) No Display Books, and (c)

Library Scans that are not authorized to be included in Institutional

Subscriptions pursuant to the terms of this Amended Settlement

Agreement, free search services Online through Google Products and

Services (including Preview Use or Snippet Display if permitted under this

Agreement), a Library Link, the Public Access Service, and Institutional

Subscription for Higher Education Institutions.

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(ii)

Third-Party Required Library Services Provider. If

Google fails to meet the Required Library Services Requirement, or if

Google gives notice to the Registry, the Fully Participating Libraries and the

Cooperating Libraries of its intent not to meet the Required Library Services

Requirement at any time after the Effective Date, and does not cure this

failure within ninety (90) days after notice from the Fully Participating

Libraries and the Cooperating Libraries invoking this provision, acting

through the Designated Representative, then the Fully Participating Libraries

and the Cooperating Libraries, or the Registry, may seek to engage one or

more third parties (each, a “Third-Party Required Library Services

Provider”) to provide any or all of the Required Library Services (provided

that, at a minimum, the Third-Party Required Library Services Provider

provides at least one of the Required Library Services not provided by

Google that caused the foregoing right to use a Third-Party Required Library

Services Provider to be triggered) on substantially the same terms described

in this Amended Settlement Agreement. Any such arrangement will be

subject to the consent of each of (1) the Registry and (2) the Fully

Participating Libraries and the Cooperating Libraries, acting through the

Designated Representative, which consents shall not be unreasonably

withheld or delayed. If a Third-Party Required Library Services Provider is

identified and the foregoing required consents are obtained, then Google will

provide such Third-Party Required Library Services Provider with a Digital

Copy of Library Scans (excluding particular Library Scans that are restricted

from further distribution under the Digitization Agreement between Google

and a Fully Participating Library or a Cooperating Library) to be used solely

to provide Required Library Services (as such Required Library Services

may evolve over time) in accordance with the terms of this Amended

Settlement Agreement and the terms of Google’s Digitization Agreements

with each of the Fully Participating Libraries and the Cooperating Libraries.

If, within one hundred and twenty (120) days after the Fully Participating

Libraries and the Cooperating Libraries invoke this provision following such

failure by Google, a Third-Party Required Library Services Provider has not

been agreed upon, then the Fully Participating Libraries and the Cooperating

Libraries, if they wish, may continue to attempt to engage a Third-Party

Required Library Services Provider in the manner described above or may

elect to provide the Required Library Services themselves. Any such self-

provision shall be subject to the applicable terms of this Amended Settlement

Agreement and to the Registry’s approval, which approval shall not be

unreasonably withheld or delayed. In any event, the Fully Participating

Libraries may continue to use their LDCs in accordance with Section 7.2(b)

(Use of Library Digital Copies), Non-Consumptive Research may continue

to be conducted using the Research Corpus in accordance with the provisions

of Section 7.2(d) (Research Corpus), and the requirement that the Fully

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105

Participating Libraries and the Host Sites comply with the Security Standard in Article VIII (Security and Breach) will continue to be in effect. Any Third-Party Required Library Services Provider is, in connection with any Claim arising out of its providing any or all of the Required Library Services, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).

(iii)

Reporting. Upon request by the Fully Participating

Libraries and the Cooperating Libraries, Google will provide such libraries

with reasonable information regarding the number of Library Scans and the

Required Library Services being provided by Google to determine Google’s

compliance with the standard set forth in Section 7.2(e)(i) (Obligation).

(iv)

Exercise or Waiver of Rights. The Fully Participating

Libraries and the Cooperating Libraries may exercise their rights under this

Section 7.2(e) (Required Library Services Requirement) or may consent to

any agreement between Google and the Registry to waive the Required

Library Services Requirement as to all Library Scans, acting through the

Designated Representative. Further, the Fully Participating Libraries and the

Cooperating Libraries may exercise their rights under Section 3.7(c)

(Additional Contemplated Rightsholder Services Provider) with respect to

Contemplated Rightsholder Services or may consent to any agreement

between Google and the Registry to waive Google’s obligation to provide

Contemplated Rightsholder Services as to all Library Scans, acting through

the Designated Representative.

(f)

Third-Party Beneficiary.

(i)

Fully Participating Libraries. With respect to the use of

Books and Inserts, the Library-Registry (Fully Participating) Agreement will

bind a Fully Participating Library only with respect to the LDC. Plaintiffs

and Google acknowledge and agree that each such Fully Participating

Library is a third-party beneficiary of the following provisions of this

Amended Settlement Agreement, entitled to enforce such provisions directly,

as if such Fully Participating Library were a party hereto: (i) Article X

(Releases) (as applicable to Fully Participating Libraries) and (ii) the terms

of Sections 1.31 (Commercially Available), 3.2(d)(iii) (Mistakes), 3.5(a)(ii)

(Back-up Storage), 3.5(b)(i)(1) (Exclusion from Library Digital Copy),

3.5(b)(iii) (Coupling Requirement), 3.5(b)(v) (Waiver of Coupling

Requirement), 3.7(c) (Additional Contemplated Rightsholder Services

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106

Provider), 3.7(e)(i) (Digital Copy of Excluded Books), 4.1(d) (Basic Features of Institutional Subscriptions), 4.1(e) (Institutional Subscription Terms and Conditions), 4.1(f) (Subscriber Experience), 6.2(a) (Not-For-Profit Entity), 6.3 (Unclaimed and Public Domain Funds), 6.5(b) (Data for Fully Participating Libraries) and 17.14 (No Liability for Consequential Damages) and Articles VII (Fully Participating Library and Cooperating Library Rights and Obligations) and VIII (Security and Breach). Any action to enforce any such provision that arises out of the same facts or breach brought by one or more Fully Participating Libraries and, pursuant to Section 7.2(f)(ii) (Cooperating Libraries), one or more Cooperating Libraries, must be brought by all such libraries as a single consolidated action, to the extent that such consolidation is permitted by the Court or Arbitrator, with one such Fully Participating Library or Cooperating Library, and/or one counsel for all the libraries bringing such action, having primary responsibility for communicating with the party or parties against which the action is brought.

(ii)

Cooperating Libraries. Plaintiffs acknowledge and agree

that each Cooperating Library is a third-party beneficiary of the following

provisions of this Amended Settlement Agreement, entitled to enforce such

provisions directly, as if such Cooperating Library were a party hereto: (i)

Article X (Releases) (as applicable to Cooperating Libraries) and (ii) the

terms of Sections 1.31 (Commercially Available), 3.2(d)(iii) (Mistakes),

3.5(b)(iii) (Coupling Requirement), 3.5(b)(v) (Waiver of Coupling

Requirement), 3.7(c) (Additional Contemplated Rightsholder Services

Provider), 3.7(e)(i) (Digital Copy of Excluded Books), 4.1(d) (Basic Features

of Institutional Subscriptions), 4.1(e) (Institutional Subscription Terms and

Conditions), 4.1(f) (Subscriber Experience), 6.2(a) (Not-For-Profit Entity),

6.3 (Unclaimed Funds and Public Domain Funds), and 17.14 (No Liability

for Consequential Damages) and Article VII (Fully Participating Library and

Cooperating Library Rights and Obligations). Any action to enforce any

such provision that arises out of the same facts or breach brought by one or

more Cooperating Libraries and, pursuant to Section 7.2(f)(i) (Fully

Participating Libraries), one or more Fully Participating Libraries, must be

brought by all such libraries as a single consolidated action, to the extent

such consolidation is permitted by the Court or Arbitrator, with one such

Cooperating Library or Fully Participating Library, and/or one counsel for all

the libraries bringing such action, having primary responsibility for

communicating with the party or parties against which the action is brought.

(iii)

Failure to Comply. No failure by a Fully Participating

Library or a Cooperating Library to comply with its Library-Registry

Agreement will affect such library’s third-party beneficiary rights specified

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in Section 7.2(f)(i) (Fully Participating Libraries) and Section 7.2(f)(ii) (Cooperating Libraries), respectively.

(iv)

No Modification Without Consent. None of the

provisions set forth in paragraphs (i) - (iii) above, this paragraph (iv), or the

provisions referred to therein as to which the Fully Participating Libraries or

the Cooperating Libraries, as applicable, are express third-party beneficiaries

may be modified or amended in a way that negatively affects the interests of

the Fully Participating Libraries or the Cooperating Libraries, as applicable,

without their agreement, acting through the Designated Representative. In

addition, the provisions of Sections 2.2 (Authorization of Google, Fully

Participating Libraries and Cooperating Libraries), 3.1(a) (Non-Exclusive

Digitization Rights), 4.1(a)(i) (Objectives) and 6.6 (d) (Claimed Books to be

Public) may not be modified or amended in a way that negatively affects the

interests of the Fully Participating Libraries or the Cooperating Libraries

without the agreement of the Fully Participating Libraries and the

Cooperating Libraries, as applicable, acting through the Designated

Representative.

(v)

Related Agreements with Google. Each Fully

Participating Library and each Cooperating Library also may enter into a

separate agreement with Google (or an amendment to its current Digitization

Agreement with Google) setting forth other agreements between them

relating to this Amended Settlement Agreement, including agreements, if

any, setting forth which provisions of this Amended Settlement Agreement

Google is required to enforce (which provisions may be publicized by

Google and/or such Fully Participating Library or Cooperating Library);

provided, however, that no such amendment or other agreement will permit

any Fully Participating Library to make any uses of its LDC that are

prohibited by its Library-Registry (Fully Participating) Agreement or by this

Amended Settlement Agreement.

(g)

Accommodated Service.

(i)

Definition. “Accommodated Service” means a service

that offers the text of Books to users of Access Uses and other Revenue

Models in the form of electronic text used in conjunction with screen

enlargement, voice output, and refreshable Braille displays, or, at Google’s

option and with the Registry’s approval, other technologies to reasonably

accommodate Print Disabilities, at no greater charge than the charge to view

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108

Books in a similar manner to users of Access Uses and other Revenue Models without a Print Disability.

(ii)

Google Intention. Google intends to make Digital Copies

of Books and Inserts accessible to users with Print Disabilities consistent

with Section 3.3(d) (Accommodation of Print Disabilities). To the extent

that Google is unable to make Books and Inserts accessible as set out in

Section 7.2(g)(ii)(1) (Offering of Accommodated Service), Google will

reasonably cooperate to enable access to Books and Inserts pursuant to

Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider).

(1)

Offering of Accommodated Service. To satisfy the

requirements of this Section 7.2(g) (Accommodated Service), Google

must (a) use commercially reasonable efforts to enable an Accommodated

Service for Books and Inserts for Access Uses and other Revenue Models

as authorized under this Amended Settlement Agreement; (b) for users of

the Institutional Subscription with Print Disabilities, offer an

Accommodated Service for all Books and Inserts in the Institutional

Subscription Database for which Google’s automated OCR system is

successful; and (c) not unreasonably withhold its consent to a request from

a Fully Participating Library to work with particular third-party

contractors to provide access to the full text of Books and Inserts as

described in this Section 7.2(g) (Accommodated Service) and to improve

the quality of such Books (e.g., OCR quality and structure extraction) for

the purpose of providing such access. In order to develop the

Accommodated Service, Google may work with any third parties to

provide access to the full text of Books and Inserts as described in this

Section 7.2(g)(ii)(1) (Offering of Accommodated Service), and to improve

the quality of such Books (e.g., OCR quality and structure extraction) for

the purpose of providing such access. The third-party contractors working

with Google in such efforts shall not otherwise be permitted to use or

distribute such Books or Inserts and, when such efforts are completed,

shall return any such Books and Inserts to Google and delete all copies of

any such Books and Inserts that have been provided by Google or created

by any such third-party contractors in the course of such efforts.

(2)

Alternative Accommodated Service Provider.

a)

Identification of Alternative Accommodated

Service Provider. If, within five (5) years from the Effective Date,

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Google has not complied with Section 7.2(g)(ii)(1) (Offering of Accommodated Service), or if, following such five (5)-year period, Google ceases to comply with Section 7.2(g)(ii)(1) (Offering of Accommodated Service), then, upon notice to Google and the Registry by the Fully Participating Libraries and the Cooperating Libraries acting through the Designated Representative, Google shall use commercially reasonable efforts to identify and work with an alternative provider (the “Alternative Accommodated Service Provider”) to readily provide copies of Books and Inserts requested by the Alternative Accommodated Service Provider solely for the purpose of the Alternative Accommodated Service Provider making Digital Copies of these Books and Inserts accessible to users with Print Disabilities.

b)

Agreement With Alternative Accommodated

Service Provider. The Alternative Accommodated Service

Provider will enter into an agreement with Google and the Registry

that includes terms protecting the security of the Books and Inserts,

terms similar to those contained in Section 7.2(b)(ii) (Users with

Print Disabilities) and terms that require the Alternative

Accommodated Service Provider to make available to users with

Print Disabilities the services of an “authorized entity” within the

meaning of 17 U.S.C. § 121. The terms of any such agreements

shall be made available to the Designated Representative.

7.3 Google’s Obligations.

(a)

Notification of Libraries. Google will notify each

library providing Books to Google as part of the GLP pursuant to a

Digitization Agreement of the requirements to become a Fully

Participating Library if it wishes to have a LDC, and will use

commercially reasonable efforts to obtain such library’s agreement to

enter into the Library-Registry (Fully Participating) Agreement and

become a Fully Participating Library.

(b)

Breach By Participating or Cooperating Libraries.

Google will reasonably cooperate with the Rightsholders and/or the

Registry in connection with any material breach by a Fully

Participating Library or a Cooperating Library of its Library-Registry

Agreement or the terms of this Amended Settlement Agreement

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applicable to such Fully Participating Library or Cooperating Library; provided, however, that Google is not required to disclose confidential or personally identifiable information other than as required by law or valid legal process.

7.4 Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights.

(a)

Designated Representative and Security

Representatives.

(i)

Role. To the extent that Sections 3.5(b)(v) (Waiver of

Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder

Services Provider), 6.3(a) (Unclaimed Funds), 7.2(d)(ii) (Host Sites),

7.2(e)(ii) (Third-Party Required Library Services Provider), 7.2(e)(iv)

(Exercise or Waiver of Rights), 7.2(f)(iv) (No Modification Without

Consent), 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), 7.5

(Meetings to Discuss Library Uses) and 8.2(b) (Changes to Security

Standard) contemplate that any Fully Participating Library or Cooperating

Library may exercise rights or waive rights acting through the Designated

Representative or Security Representatives, such library may do so only by

acting through the Designated Representative or Security Representatives, as

applicable. Google and the Registry, in dealing with the Fully Participating

Libraries and the Cooperating Libraries, are obligated to accept instructions,

decisions and positions only from such Designated Representative or

Security Representatives, as applicable, regarding such matters. Google and

the Registry may rely on instructions, decisions and positions provided to

Google and the Registry by the Designated Representative or Security

Representatives, as applicable. All Fully Participating Libraries and all

Cooperating Libraries shall be bound by the instructions, decisions and

positions conveyed to Google and the Registry by the Designated

Representative or Security Representatives, as applicable, regarding all

matters referenced in the Sections set forth in the first sentence of this

Section 7.4(a) (Designated Representative and Security Representatives).

(ii)

Selection and Failure to Select. The Fully Participating

Libraries and the Cooperating Libraries shall select a Designated

Representative within thirty (30) days after the Effective Date, and the Fully

Participating Libraries shall select Security Representatives by the two (2)-

year anniversary of the Effective Date. If, after the date set for the

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appointment of the initial Designated Representative or of the initial Security Representatives, as the case may be, the Registry or Google requests the consent, waiver or agreement of the Designated Representative or of the Security Representatives, as the case may be, and if the Designated Representative or Security Representatives, as the case may be, fail to respond (whether due to failure to have been appointed or otherwise) to such request within sixty (60) days, then the Registry or Google, as the case may be, may extend such sixty (60)-day period or, if not extended, may proceed as if such consent, waiver or agreement had been given; provided that, the Registry or Google, as the case may be, will give ten (10) days’ prior notice of its intent to proceed unless the Designated Representative or Security Representatives, as the case may be, respond within such ten (10)-day period. Any such request shall be made in writing by Google or the Registry to the Designated Representative or the Security Representatives, as the case may be, if so appointed at the time. However, if the Registry makes such a request of the Designated Representative or the Security Representatives, and no Designated Representative or Security Representatives, as the case may be, have been appointed at the time, then the Registry may direct such request to Google. Any such request directed to Google satisfies the foregoing expectation that the Registry will deal with the Designated Representative or Security Representatives, as the case may be. In addition, to the extent Google provides instructions, decisions or positions in response to such request, the Registry’s obligation to accept instructions, decisions and positions only from the Designated Representative or the Security Representatives, as the case may be, is fulfilled; provided that if Google fails to respond to such request within sixty (60) days, then the Registry may extend such sixty (60)-day period or, if not extended, may proceed as if such consent, waiver or agreement had been given.

(b)

Notification of Identity. One of the Fully

Participating Libraries or the Cooperating Libraries will notify

Google and the Registry of the initial Designated Representative and

one of the Fully Participating Libraries will notify Google and the

Registry of the initial Security Representatives by written notice,

which written notice shall be signed on behalf of (but not necessarily

by) all Fully Participating Libraries and Cooperating Libraries in the

case of the Designated Representative, or on behalf of (but not

necessarily by) all Fully Participating Libraries in the case of the

Security Representatives. Any changes in the identity of the

Designated Representative or Security Representatives shall be

communicated promptly to Google and the Registry by one of the

Fully Participating Libraries, by one of the Cooperating Libraries or

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by the existing or previous Designated Representative or an existing or previous Security Representative, as applicable.

(c)

Authority. The Designated Representative will not

have independent authority to make decisions on behalf of the Fully

Participating Libraries and/or the Cooperating Libraries, as the case

may be, but will, instead, convey to Google and/or the Registry, as

applicable, instructions, decisions and positions of the Fully

Participating Libraries and the Cooperating Libraries on matters as

referred to in Section 7.4(a) (Designated Representative and Security

Representatives).

(d)

Revocation of Instructions, Decisions and

Positions. If any Fully Participating Library or Cooperating Library

believes that the Designated Representative, or if any Fully

Participating Library believes that the Security Representatives, have

conveyed to Google and/or the Registry any instructions, decisions or

positions of the Fully Participating Libraries and/or the Cooperating

Libraries, as the case may be, that had not been agreed upon in

accordance with the governance rules established pursuant to

Attachment 1 to Exhibit C of the Library-Registry (Fully

Participating) Agreement and Attachment 1 to Exhibit C of the

Library-Registry (Cooperating) Agreement (Selection of Designated

Representative and Security Representatives and Establishment of

Governance Rules), then such Fully Participating Library or

Cooperating Library in the case of instructions, decisions or positions

of the Designated Representative, or such Fully Participating Library

in the case of instructions, decisions or positions of the Security

Representatives, may countermand such instruction, decision or

position in writing to Google and/or the Registry, as applicable, and

Google and/or the Registry, as applicable, will, only if it has not yet

acted upon such instruction, decision or position, delay acting upon

such instruction, decision or position unless and until the Designated

Representative or Security Representatives, as applicable, re-affirms

such instruction, decision or position to Google and/or the Registry,

as applicable.

(e)

Selection Process and Establishment of

Governance Rules. Attachment 1 to Exhibit C of the Library-

Registry (Fully Participating) Agreement and Attachment 1 to

Exhibit C of the Library-Registry (Cooperating) Agreement

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(Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) establishes the process for selecting the Designated Representative and Security Representatives and for establishing governance rules among the Fully Participating Libraries and the Cooperating Libraries.

7.5 Meetings to Discuss Library Uses.

(a)

Operational Matters. The Registry, Google and

the Fully Participating Libraries will meet from time to time as

mutually agreed to discuss operational matters regarding the

applicable Library-Registry (Fully Participating) Agreements, and the

provisions of this Amended Settlement Agreement that are applicable

to Fully Participating Libraries, including the communication of

requests from Fully Participating Libraries to Rightsholders regarding

uses of LDCs, communication of information to Fully Participating

Libraries required for them to implement this Amended Settlement

Agreement and the applicable Library-Registry (Fully Participating)

Agreements (e.g., the Commercial Availability status), and how the

Fully Participating Libraries are using the LDC for personal scholarly

and classroom purposes, as authorized by Section 7.2(b)(vii)

(Personal Scholarly Use and Classroom Use).

(b)

Establishing Standards. Within six (6) months

after the Effective Date, the Registry and the Fully Participating

Libraries, acting through the Designated Representative, will

establish reasonable uniform standards for the Fully Participating

Libraries’ maintenance of records, submissions to the auditor and

reports to and notifications of the Registry of uses (i) authorized

pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research),

(ii) authorized pursuant to Section 7.2(b)(vii) (Personal Scholarly Use

and Classroom Use), and (iii) made pursuant to the proviso in Section

7.2(c)(ii), and for the auditing of such uses. Such standards will

provide that the maintenance of records, the submissions to the

auditor and reports to and notifications of the Registry include, at a

minimum, the following information: (1) the name of the Fully

Participating Library; (2) with respect to Section 7.2(b)(vi) (Use for

Non-Consumptive Research), the same information that Host Sites

are obligated to maintain and report to the auditor pursuant to Section

7.2(d) (Research Corpus); and (3) with respect to uses made pursuant

to Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use)

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and the proviso in Section 7.2(c)(ii), for each Book used by the Fully Participating Library, the title and author of the Book, a description of the type of use made of the Book, and the amount of pages of the Book used. Such standards, and any template used by the Fully Participating Libraries to maintain, submit to the auditor and report to and notify the Registry of such information, will be attached to each Library-Registry (Fully Participating) Agreement. Without limiting the foregoing, neither the Registry nor the Fully Participating Libraries, acting through the Designated Representative, shall unreasonably delay discussions on, or unreasonably withhold agreement to, such standards; provided, however, that if the Designated Representative unreasonably fails to discuss or agree to such standards, the Registry may establish such standards for the Fully Participating Libraries that are consistent with this Section 7.5(b) (Establishing Standards); provided, however, that the Fully Participating Libraries, acting through the Designated Representative, may, in lieu of complying with such standards established by the Registry, invoke an arbitration pursuant to Article IX (Dispute Resolution) in which the Arbitrator would establish, on a de novo basis, reasonable standards that are consistent with this Section 7.5(b) (Establishing Standards); pending the Arbitrator’s Decision, the Fully Participating Libraries will provide at least the minimum information set forth in the second sentence of this Section 7.5(b) (Establishing Standards).
7.6 When Fully Participating Libraries, Cooperating Libraries and Public Domain Libraries are Bound. Notwithstanding anything to the contrary in this Amended Settlement Agreement, no Fully Participating Library, Cooperating Library or Public Domain Library is bound by any provision of this Amended Settlement Agreement; rather, each Fully Participating Library’s, Cooperating Library’s and Public Domain Library’s rights and obligations are as set forth in the applicable Library-Registry Agreement and no library has any rights or obligations as a third-party beneficiary under this Amended Settlement Agreement unless and until it enters into a Library-Registry Agreement and becomes a Fully Participating Library or a Cooperating Library.
ARTICLE VIII — SECURITY AND BREACH
8.1 Obligations of Google, the Fully Participating Libraries and the Host Sites. Google, each Fully Participating Library and each Host Site shall be responsible for the security of Digital Copies of Books and any LDC (and, in the case of a Host Site, the Research Corpus) in accordance with this Article VIII (Security and Breach) while any

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such Digital Copies and any LDC (and, in the case of a Host Site, the Research Corpus) are in the possession, custody or control of such entity.
8.2 Security Standard, Security Implementation Plan and Security Audits.

(a)

Security Implementation Plan.

(i)

Compliance. At all times, Google, each Fully

Participating Library and each Host Site shall comply with its own, then-in-

effect Security Implementation Plan.

(ii)

Initial Security Implementation Plan. Google, each Fully

Participating Library and each Host Site shall formulate an initial Security

Implementation Plan that meets the requirements of the Security Standard

and shall implement such initial Security Implementation Plan promptly on

or before the Effective Date. After the Effective Date, until it submits to the

Registry and implements an initial Security Implementation Plan (a) Google

shall not make any Display Uses, other than Snippet Display of a Display

Book, except as authorized by the Rightsholder or the Registry, (b) a Fully

Participating Library shall not make any uses of its LDC or receive an LDC

from Google, and (c) Google shall not provide a Host Site with a Research

Corpus.

(iii)

Revised Security Implementation Plan. Google, each

Fully Participating Library and each Host Site may revise its Security

Implementation Plan from time to time and, if it does so, shall implement

such revised Security Implementation Plan.

(iv)

Approval of Security Implementation Plan. Google, each

Fully Participating Library and each Host Site shall submit its initial and any

revised Security Implementation Plan to the Registry. The Registry shall

review such Security Implementation Plan. Within sixty (60) days after such

submission, the Registry will (1) approve such Security Implementation

Plan, (2) notify Google, the Fully Participating Library or the Host Site, as

applicable, that the Registry reasonably believes that any such Security

Implementation Plan does not meet the requirements of the Security

Standard, citing specific reasons for such belief, or (3) notify Google, the

Fully Participating Library or the Host Site, as applicable, that the Registry

requires additional time for such review for good cause, the reason therefor,

and the date by which the Registry will respond, which additional time shall,

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in any event, not exceed sixty (60) additional days; provided, however, that if the Registry does not provide such notice, the Security Implementation Plan shall be deemed to be approved. Google, the Fully Participating Library or the Host Site, as applicable, if it determines to implement a new or revised security plan, shall respond to any notice given under clause (2) above within sixty (60) days, either by amending its Security Implementation Plan or by explaining in writing how its Security Implementation Plan meets the requirements of the Security Standard. Any disputes related thereto shall be resolved pursuant to Article IX (Dispute Resolution).

(b)

Changes to Security Standard. Every two (2)

years after the Effective Date during the term of this Amended

Settlement Agreement, upon the Registry’s written request, Google,

the Registry and up to a total of four (4) representatives on behalf of

the Fully Participating Libraries (which four (4) representatives may

include a representative of the Host Sites, at the option of the Fully

Participating Libraries acting through the Designated Representative,

and shall be selected in the manner set forth in Attachment 1

(Selection of Designated Representative and Security Representatives

and Establishment of Governance Rules) to Exhibit C of the Library-

Registry (Fully Participating) Agreement and are defined therein as

the “Security Representatives”) will review and, if necessary, revise

the Security Standard to take account of technological developments,

including new threats to security, and will agree on a schedule for

implementation of any changes in the Security Standard. This

procedure is not intended to alter the relative obligations of Google,

the Registry, the Fully Participating Libraries and the Host Sites

under this Amended Settlement Agreement or analogous provisions

incorporated into the Library-Registry (Fully Participating)

Agreement or Host Site-Registry Agreement, as applicable, but to

allow for changes in technology. To the extent possible, any such

revisions to the Security Standard will not require drastic changes,

substantial unreasonable additional costs, or new technology. If they

are unable to agree upon changes, Google, the Registry and the

Security Representatives shall resolve the dispute pursuant to Article

IX (Dispute Resolution). The Fully Participating Libraries may

change the Security Representatives for any reason, in the manner set

forth in Attachment 1 to Exhibit C of the Library-Registry (Fully

Participating) Agreement (Selection of Designated Representative

and Security Representatives and Establishment of Governance

Rules). Notwithstanding the foregoing, if the Fully Participating

Libraries fail to designate any representatives by the two (2)-year

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anniversary of the Effective Date, thereafter, if, and for so long as, the Fully Participating Libraries have failed to select Security Representatives, Google and the Registry may agree to revisions to the Security Standard or, if they are unable to agree, then Google and the Registry shall resolve the dispute pursuant to Article IX (Dispute Resolution).

(c)

Audits.

(i)

Audited Parties. Google, each Fully Participating Library

and each Host Site (each, an “Audited Party”) will permit a mutually

agreeable third party to conduct annual audits (or, if reasonably necessary,

then semi-annual audits) of its security and usage to verify compliance with

the Audited Party’s then-in-effect Security Implementation Plan. The

auditor will be subject to a reasonable non-disclosure agreement (an “NDA”)

provided by the Audited Party that protects the Audited Party’s confidential

information. The auditor may provide a report of the audit to the Registry

that the Audited Party is permitted to review in advance of its disclosure to

ensure that no trade secrets or other proprietary information is disclosed by

the auditors in the report. Such audit shall be conducted on reasonable prior

notice on a date and at a time that is mutually agreed with the Audited Party

and shall be conducted during the Audited Party’s normal business hours.

(ii)

Share of Audit Costs. Google and the Registry will share

equally the Registry’s out-of-pocket costs of conducting audits of the

Audited Parties, subject to the following limits:

(1)

If there are a total of twenty-five (25) or fewer Host

Sites and Fully Participating Library locations at which LDCs are located,

Google’s share will not exceed two hundred thousand United States

dollars (U.S. $200,000) for such costs incurred during a calendar year;

(2)

For every additional ten (10) locations that are Host

Sites and at which LDCs are located, Google’s share shall increase by one

hundred thousand United States dollars (U.S. $100,000) for such costs

incurred during a calendar year. Google shall be obligated to pay such one

hundred thousand United States dollars (U.S. $100,000) toward such

incurred costs when the first Fully Participating Library or Host Site over

the previous group of ten (10) Fully Participating Libraries and Host Sites

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signs a Library-Registry (Fully Participating) Agreement or Host SiteRegistry Agreement (i.e., the 26th, 36th, 46th, etc. Fully Participating Library or Host Site).

(iii)

Adjustment to Audit Costs. The limits set forth in Section

8.2(c)(ii) (Share of Audit Costs) shall be adjusted as of January 1 of each

year to that amount which is equal to the product obtained by multiplying (1)

the amount specified, by (2) a fraction, the numerator of which is the

Consumer Price Index published for the immediately preceding year and the

denominator of which is the Consumer Price Index published for 2008. The

term “Consumer Price Index” means the “Consumer Price Index, for All

Urban Consumers, Subgroup “All Items” (Base Year 1982-84=100),” which

is, as of the Amended Settlement Agreement Date, published by the United

States Department of Labor, Bureau of Labor Statistics. If, however, the

Consumer Price Index is changed so that the base year is altered from that

used as of the Amended Settlement Agreement Date, then the Consumer

Price Index shall be converted in accordance with the conversion factor

published by the United States Department of Labor, Bureau of Labor

Statistics, to obtain the same results that would have been obtained had the

base year not been changed. If no conversion factor is available or if the

Consumer Price Index is otherwise changed, revised or discontinued for any

reason, there shall be substituted in lieu thereof and the term “Consumer

Price Index” as used in this Amended Settlement Agreement shall thereafter

refer to the most nearly comparable official price index of the United States

Government to obtain substantially the same result as would have been

obtained had the original Consumer Price Index not been changed, revised or

discontinued, which alternative index shall be selected by Google and shall

be subject to the Registry’s reasonable approval.

(iv)

No Carry Forward. If Google’s share of the Registry’s

out-of-pocket costs incurred in conducting audits for any calendar year does

not exceed the limits set forth in Section 8.2(c)(ii) (Share of Audit Costs),

then any difference between Google’s actual contribution toward such costs

and such limits may not be carried forward to future years.

(v)

Use of LDC for Non-Consumptive Research. If the use

by one or more Fully Participating Libraries, other than any Fully

Participating Libraries that are Host Sites, Hosting Fully Participating

Libraries or Requesting Fully Participating Libraries, of its or their LDCs for

Non-Consumptive Research pursuant to Section 7.2(b)(vi) (Use for Non-

Consumptive Research) results in any additional out-of-pocket costs to the

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Registry of conducting audits of such Fully Participating Libraries, beyond the costs of conducting audits at Fully Participating Libraries that do not make such use of their LDCs, then the Fully Participating Libraries that use their LDCs for such purposes shall bear all such additional costs to the extent reasonable.

8.3 Breaches – General Principles.

(a)

Notification of Registry by Google, Fully

Participating Library or Host Site; Cure. If Google, a Fully

Participating Library or a Host Site becomes aware of (i) a breach of

its then-in-effect Security Implementation Plan, other than an

Inconsequential Breach, (ii) in the case of Google, a breach by it of

any other provision of this Amended Settlement Agreement resulting

in Unauthorized Access, (iii) in the case of a Fully Participating

Library or a Host Site, any Prohibited Access, or (iv) any

Unauthorized Access by Google, any Prohibited Access by a Fully

Participating Library or a Host Site or any Third-Party Unauthorized

Access (even if Google, the Fully Participating Library or Host Site,

as applicable, has complied with this Amended Settlement

Agreement and its then-in-effect Security Implementation Plan), it

shall (1) promptly notify the Registry of any such breach,

Unauthorized Access, Prohibited Access or Third-Party Unauthorized

Access; (2) promptly cure any such breach or block such

Unauthorized Access (which may include, in the case of Google,

temporary suspension of Display Uses of a Book), Prohibited Access

or Third-Party Unauthorized Access, as applicable; (3) if such breach

cannot be cured or such Unauthorized Access, Prohibited Access or

Third-Party Unauthorized Access blocked promptly, report to the

Registry on an on-going basis the status of its efforts to do so; (4)

promptly notify and confer with the Registry on ways to prevent any

such breach or such Unauthorized Access, Prohibited Access or

Third-Party Unauthorized Access, as applicable, from reoccurring;

and (5) promptly negotiate with the Registry (in the case of a breach

of its then-in-effect Security Implementation Plan) and with the

Registry and/or affected Rightsholder(s) (in the case of an

Unauthorized Access, Prohibited Access or Third-Party Unauthorized

Access), an appropriate monetary remedy, if any, in accordance with

Sections 8.4 (Remedies for Breaches of the Security Implementation

Plan that Do Not Result in Unauthorized Access or Prohibited

Access), 8.5 (Remedies for Breaches Resulting in Unauthorized

Access by Google or Prohibited Access by a Fully Participating

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Library or a Host Site), or 8.6 (Remedies for Security Violations by Third Parties), as applicable. Each Audited Party shall report to the auditor in connection with the audit described in Section 8.2(c) (Audits) all breaches of its then-in-effect Security Implementation Plan that pose a reasonable risk of compromising the security of Digital Copies or of proximately causing any other breaches that are not Inconsequential Breaches.

(b)

Notification of Registry by Rightsholders. All

Rightsholders who wish to make a claim against Google, a Fully

Participating Library, and/or a Host Site shall first notify the Registry

pursuant to this Amended Settlement Agreement, the Library-

Registry (Fully Participating) Agreement and the Host Site-Registry

Agreement, respectively.

(c)

Notification of Google, Fully Participating Library

or Host Site by Registry. The Registry promptly shall provide notice

to Google, the Fully Participating Library and/or the Host Site, as

applicable, of the claimed breach.

(d)

Consolidation of Claims. If the Registry or a

Rightsholder has a claim against Google for breach of any provision

of this Article VIII (Security and Breach) or against a Fully

Participating Library or a Host Site for breach of the analogous

provisions incorporated in the Library-Registry (Fully Participating)

Agreement or the Host Site-Registry Agreement, respectively, then,

at the option of the allegedly breaching party or the Registry, such

claims will be consolidated as set forth below:

(i)

Rightsholder Notice. Upon the Registry’s receipt of a

notice sent pursuant to Section 8.3(b) (Notification of Registry by

Rightsholders), or if the Registry wishes to, on its own, make a claim against

Google, a Fully Participating Library, and/or a Host Site, the Registry shall

notify all affected Rightsholders whose Books may be subject to

Unauthorized Access, Prohibited Access or Third-Party Unauthorized

Access of a claim arising out of a breach of a then-in-effect Security

Implementation Plan and, in its discretion, of any other claim of

Unauthorized Access, Prohibited Access or Third-Party Unauthorized

Access affecting more than one Rightsholder; provided, however, that, with

respect to a claim against Google or a Fully Participating Library, for so long

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as the contents of such notification would reasonably be expected to result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, then the Registry, in its discretion, may, or at Google’s or, in the case of a Fully Participating Library, the Fully Participating Library’s request, or in the case of a Host Site, the Host Site’s request, shall, delay in providing such notice; and, provided further, that Google or the Fully Participating Library, as applicable, will promptly notify the Registry when notification under this Section 8.3(d)(i) (Rightsholder Notice) would no longer reasonably be expected to result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access.

(ii)

Notification of Same Claims. Rightsholders will be

required to notify the Registry of all claims arising out of the same claimed

breach within ninety (90) days of the date of notice to Rightsholders under

Section 8.3(d)(i) (Rightsholder Notice), and the Registry shall have ninety

(90) days after the end of such ninety (90)-day period to investigate and

pursue the claiming Rightsholders’ claims for breach, provided that the

Registry cannot, absent the approval of an affected Rightsholder, settle such

a claim, except that affirmative approval from every affected Rightsholder is

not necessary so long as those Rightsholders are given prior notice and an

opportunity to be heard if they wish.

(e)

Claim Resolution. If the Registry does not pursue

such claims for breach within the periods specified in Section

8.3(d)(ii) (Notification of Same Claims), a claiming Rightsholder will

then have an additional sixty (60) days after the end of such periods

to submit the claims for resolution pursuant to Article IX (Dispute

Resolution). If the Registry does pursue such claims within such

periods, the Registry shall inform Google, the Fully Participating

Library or the Host Site, as applicable, of the responses of

Rightsholders and, based on those responses, Google, the Fully

Participating Library, or the Host Site, as applicable, shall have the

opportunity to negotiate a settlement with the Registry. Following

agreement on a settlement proposal, the Registry will notify the

affected Rightsholders of the potential settlement of such claims, and

each affected Rightsholder shall have the opportunity to accept or

reject the Registry’s settlement proposal for such Rightsholder’s

claim. Any Rightsholder that rejects the Registry’s settlement

proposal for his, her or its claim shall have one hundred twenty (120)

days after the date of such notice of potential settlement to submit

such claim for resolution pursuant to Article IX (Dispute Resolution).

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(f)

Sole Means. The procedures set forth in this

Section 8.3 (Breaches – General Principles) and in Article IX

(Dispute Resolution) shall be the sole means for a Rightsholder to

bring a claim arising out of this Article VIII (Security and Breach).

(g)

Remedies. The monetary damages for any breach

of any Security Implementation Plan, or for any breach of this

Amended Settlement Agreement resulting in Unauthorized Access,

Prohibited Access or Third-Party Unauthorized Access would be

difficult to approximate and, therefore, the amounts set forth in

Sections 8.4 (Remedies for Breaches of the Security Implementation

Plan that Do Not Result in Unauthorized Access or Prohibited

Access), 8.5 (Remedies for Breaches Resulting in Unauthorized

Access by Google or Prohibited Access by a Fully Participating

Library or a Host Site) and 8.6 (Remedies for Security Violations by

Third Parties), as such amounts may be modified by Section 8.7

(Adjustments to Liability Ranges and Caps), are deemed to be

reasonable approximations of such damages and shall not be deemed

to be penalties. Subject to the last sentence of this Section 8.3(g)

(Remedies), such monetary remedies (whether or not any damages

are awarded) shall be the sole remedy and Google’s, each Fully

Participating Library’s and each Host Site’s sole obligation for any

such breaches (in addition to injunctive relief to prevent a continuing

breach which may be awarded by the Arbitrator pursuant to Article

IX (Dispute Resolution)), unless any Fully Participating Library or

Host Site elects otherwise pursuant to Section 8.4(d) (Election of

Remedies). With respect to all of the monetary remedies set forth in

such Section, the monetary remedies applicable to Host Sites are the

same as the monetary remedies applicable to the Fully Participating

Libraries for Host Sites that are, or are similar to, Fully Participating

Libraries, and the same as the monetary remedies applicable to

Google for any other Host Sites (e.g., for any commercial

enterprises). A Host Site’s Host Site-Registry Agreement shall

specify the monetary remedies applicable to such Host Site. If a

Fully Participating Library uses its LDC for Non-Consumptive

Research pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive

Research) and either (i) breaches its obligation to notify the Registry

of such use pursuant to such Section or (ii) an Arbitrator determines,

pursuant to Article IX (Dispute Resolution), that such Fully

Participating Library has materially breached its obligation, as set

forth in such Section, to comply with the provisions of Section 7.2(d)

(Research Corpus) as if such Fully Participating Library were a Host

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Site and as if the Fully Participating Library’s LDC were the Research Corpus, then the Arbitrator may, as a further remedy, if appropriate under the circumstances, determine that such Fully Participating Library may not use its LDC for Non-Consumptive Research; provided, however, that if, to the Registry’s or the Arbitrator’s reasonable satisfaction, the Fully Participating Library demonstrates subsequently that it is able and intends to so comply, then such Fully Participating Library may use its LDC for NonConsumptive Research.

8.4 Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access. Monetary remedies for Google’s, a Fully Participating Library’s or a Host Site’s breach of its Security Implementation Plan that does not result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, are as follows:

(a)

Inconsequential Breach. If Google, a Fully

Participating Library and/or a Host Site has breached its then-in-

effect Security Implementation Plan, but such breach constitutes an

Inconsequential Breach, then Google, such Fully Participating

Library and/or such Host Site, as applicable, will not be responsible

for any damages to the Rightsholder or Registry.

(b)

Single or Non-Willful/Intentional Breach of

Security Implementation Plan. If Google, a Fully Participating

Library and/or a Host Site has breached its then-in-effect Security

Implementation Plan, and such breach is not an Inconsequential

Breach and the breaching conduct is not willful or intentional

misconduct, then the Registry and the breaching party will negotiate

or arbitrate (pursuant to Article IX (Dispute Resolution)) an

appropriate monetary remedy, if any, that will be, subject to Section

8.7 (Adjustments to Liability Ranges and Caps), within the range of

zero to twenty-five thousand United States dollars (U.S. $0 -

$25,000) in the case of Google and zero to twelve thousand five

hundred United States dollars (U.S. $0 –$12,500) in the case of a

Fully Participating Library, which amounts may depend, among other

things, on the type of breach and whether the breaching conduct was

reckless conduct. The breaching party shall pay all such amounts to

the Registry. There will be no monetary remedy for the foregoing

breaches described in this Section 8.4(b) (Single or Non-

Willful/Intentional Breach of Security Implementation Plan),

however, if the breaching party (i) promptly and fully reports the

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breach to the Registry upon discovery and (ii) cures the breach as expeditiously as practical.

(c)

Repeated or Willful/Intentional Breaches of

Security Implementation Plan. If Google, a Fully Participating

Library or a Host Site has breached its then-in-effect Security

Implementation Plan, and such breach is not an Inconsequential

Breach and either is the second (or more) of the same breach (i.e., the

second or more breach with the same root cause) within a six (6)-

month period or the breaching conduct is willful or intentional

misconduct, then the Registry and the breaching party will negotiate

or arbitrate (pursuant to Article IX (Dispute Resolution)) an

appropriate monetary remedy, if any, that will be, subject to Section

8.7 (Adjustments to Liability Ranges and Caps), within the range of

zero to fifty thousand United States Dollars (U.S. $0 –$50,000) in the

case of Google and zero to twenty-five thousand United States dollars

(U.S. $0 –$25,000) in the case of a Fully Participating Library, which

amounts may depend, among other things, on the number and type of

breach and whether the breaching conduct was willful or intentional

misconduct. The breaching party shall pay all such amounts to the

Registry.

(d)

Election of Remedies. Each Fully Participating

Library, in its Library-Registry (Fully Participating) Agreement, and

each Host Site, in its Host Site-Registry Agreement, must, for all

breaches that are subject to this Section 8.4 (Remedies for Breaches

of the Security Implementation Plan that Do Not Result in

Unauthorized Access or Prohibited Access), make an election to

either (i) agree to the monetary remedies specified in Section 8.4(b)

(Single or Non-Willful/Intentional Breach of Security

Implementation Plan) or 8.4(c) (Repeated or Willful/Intentional

Breaches of Security Implementation Plan), or (ii) subject itself to a

judicial action or an arbitration pursuant to Article IX (Dispute

Resolution) (at the Registry’s election) allowing the Registry to seek

all available remedies in equity and at law.

8.5 Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site. Monetary remedies for breaches of this Amended Settlement Agreement by Google, a Fully Participating Library or a Host Site, or the Library-Registry (Fully Participating) Agreement or Host SiteRegistry Agreement, as applicable, including breaches of its then-in-effect Security

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Implementation Plan that result in Unauthorized Access (in the case of Google) or Prohibited Access (in the case of a Fully Participating Library or a Host Site) are as follows; provided, however, that if such then-in-effect Security Implementation Plan was not yet approved by the Registry and such Unauthorized Access or Prohibited Access is a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the provisions of Section 8.5(b) (Reckless, Willful or Intentional Misconduct) shall apply and not the provisions of Section 8.5(a) (Inadvertent and Negligent Conduct), unless Google, the Fully Participating Library, or the Host Site, as applicable, demonstrates to the Arbitrator that its implementing of such then-in-effect Security Implementation Plan, including the element in issue, was not reckless.

(a)

Inadvertent and Negligent Conduct. If Google, a

Fully Participating Library or a Host Site has inadvertently or

negligently breached this Amended Settlement Agreement resulting

in Unauthorized Access (in the case of Google) or breached this

Amended Settlement Agreement, the Library-Registry (Participating)

Agreement or the Host Site-Registry Agreement resulting in

Prohibited Access (in the case of a Fully Participating Library or a

Host Site), then the Registry and/or the affected Rightsholders, in

accordance with Section 8.3(d) (Consolidation of Claims), and the

breaching party will negotiate or arbitrate (pursuant to Article IX

(Dispute Resolution)) an appropriate monetary remedy, if any, that

will be limited to actual damages. Notwithstanding the foregoing,

neither Google, nor a Fully Participating Library nor any Host Site

will be responsible for any damages from such Unauthorized Access

or Prohibited Access, as applicable, if (i) Google has complied with

the process for determining whether a book is in the public domain

under the Copyright Act in the United States under Section 3.2(d)(v)

(Safe Harbor Public Domain Determination) and, despite such

compliance, has mistakenly identified one or more Books as being in

the public domain under the Copyright Act in the United States,

resulting in such Unauthorized Access or Prohibited Access, as

applicable, (ii) Google, a Fully Participating Library or a Host Site

has relied on incorrect or incomplete information provided by the

Registry and that incorrect or incomplete information caused the

Unauthorized Access or Prohibited Access, as applicable, or (iii) the

Unauthorized Access or Prohibited Access occurred as a result of

reasons beyond the control of Google, the Fully Participating Library

or the Host Site, as applicable. In any of the cases set forth in clauses

(i)-(iii) above, each breaching party shall cure the breach as

expeditiously as practical. Aggregate damages recoverable by

Rightsholders for all claims under this Section 8.5(a) (Inadvertent and

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Negligent Conduct) from a single incident of such breach (i.e., all breaches resulting from the same root cause) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, ten million United States dollars (U.S. $10 million) and, in the case of a Fully Participating Library, three hundred thousand United States dollars (U.S. $300,000).

(b)

Reckless, Willful or Intentional Misconduct. If

Google, a Fully Participating Library or a Host Site has breached this

Amended Settlement Agreement resulting in Unauthorized Access

(in the case of Google) or Prohibited Access (in the case of a Fully

Participating Library or a Host Site), and the breaching conduct was

reckless or was willful or intentional misconduct, then the Registry

and/or the affected Rightsholders, in accordance with Section 8.3(d)

(Consolidation of Claims), and the breaching party will negotiate or

arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate

monetary remedy, if any, which will attempt to approximate actual

damages for such breach. Such damages may be in the range

beginning with zero and up to the statutory damages available to the

affected Rightsholders under Section 504 of the Copyright Act.

Aggregate damages recoverable by Rightsholders for all claims

resulting from a single incident of such breach (i.e., all breaches

resulting from the same root cause) described in this Section 8.5(b)

(Reckless, Willful or Intentional Misconduct) shall be, subject to

Section 8.7 (Adjustments to Liability Ranges and Caps), in the case

of Google, forty million United States dollars (U.S. $40 million) if

the breaching conduct was reckless, and fifty million United States

dollars (U.S. $50 million) if the breaching conduct was willful or

intentional misconduct, and, in the case of a Fully Participating

Library, five million United States dollars (U.S. $5 million) if the

breaching conduct was reckless and seven and one-half million

United States dollars (U.S. $7.5 million) if the breaching conduct was

willful or intentional misconduct.

8.6 Remedies for Security Violations by Third Parties. Remedies for security violations by a third party are as follows:

(a)

Compliance with Security Implementation Plan.

If, due to a security failure, a third party violates Google’s, a Fully

Participating Library’s or a Host Site’s security and obtains Third-

Party Unauthorized Access, and such Third-Party Unauthorized

Access does not result from the failure of Google, such Fully

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Participating Library, or such Host Site, as applicable, to comply with its then-in-effect Security Implementation Plan, then neither Google, nor the Fully Participating Library, nor the Host Site, as applicable, will be responsible for any damages to a Rightsholder or the Registry; provided, however, that if such then-in-effect Security Implementation Plan was not yet approved by the Registry and such access is a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the provisions of Section 8.6(b) (Breach of Security Implementation Plan) shall apply and not the provisions of this Section 8.6(a) (Compliance with Security Implementation Plan); provided, further, that a Fully Participating Library is not considered to be a third party when accessing its own LDC, a Host Site is not considered to be a third party when accessing the Research Corpus and a Hosting Fully Participating Library is not considered to be a third party when hosting an LDC of a Requesting Fully Participating Library. Google, the Fully Participating Library and the Host Site will reasonably assist the Registry in seeking remedies against the third party; provided, further, that, in no event shall Google, the Fully Participating Library or the Host Site be required to disclose confidential or personally identifiable information except as compelled by law or valid legal process. Conduct by Google, a Fully Participating Library or a Host Site in compliance with a Security Implementation Plan approved by the Registry will not in any event be deemed to be or constitute negligence, recklessness or intentional misconduct.

(b)

Breach of Security Implementation Plan. If

Google, a Fully Participating Library or a Host Site has breached its

then-in-effect Security Implementation Plan and a third party violates

Google’s, such Fully Participating Library’s or such Host Site’s

security and obtains Third-Party Unauthorized Access as a proximate

result of such breach, or if Google, a Fully Participating Library or a

Host Site had complied with its then-in-effect Security

Implementation Plan but its then-in-effect Security Implementation

Plan was not yet approved by the Registry and the access was a

proximate result of an element of such then-in-effect Security

Implementation Plan that is determined not to meet the requirements

of the Security Standard, then the Registry and/or affected

Rightsholders, in accordance with Section 8.3(d) (Consolidation of

Claims), and each breaching party will negotiate or arbitrate

(pursuant to Article IX (Dispute Resolution)) an appropriate

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monetary remedy, if any, which will attempt to approximate actual damages for such breach of the Security Implementation Plan, provided that a Fully Participating Library is not considered to be a third party when accessing its own LDC, a Host Site is not considered to be a third party when accessing the Research Corpus and a Hosting Fully Participating Library is not considered to be a third party when hosting an LDC of a Requesting Fully Participating Library. Such damages may be in the range beginning with zero and up to the statutory damages available to the affected Rightsholders under Section 504 of the Copyright Act. Aggregate damages recoverable by Rightsholders for all claims resulting from a single incident of such breach (i.e., all breaches resulting from the same root cause) described in this Section 8.6(b) (Breach of Security Implementation Plan) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, fifteen million United States dollars (U.S. $15 million) if the breaching conduct was negligent, twenty million United States dollars (U.S. $20 million) if the breaching conduct was reckless and twenty-five million United States dollars (U.S. $25 million) if the breaching conduct was willful or intentional misconduct, and, in the case of a Fully Participating Library, two million United States dollars (U.S. $2 million) if the breaching conduct was negligent, three million United States dollars (U.S. $3 million) if the breaching conduct was reckless and five million United States dollars (U.S. $5 million) if the breaching conduct was intentional or willful misconduct.

(c)

No Multiple Damages. If the Registry and/or

affected Rightsholders recover damages from a third party who has

obtained Third-Party Unauthorized Access to one or more Books or

Inserts, then any amounts recoverable by the Registry and/or such

Rightsholders against Google, a Fully Participating Library or a Host

Site under this Section 8.6 (Remedies for Security Violations by

Third Parties) for any claim arising out of such Unauthorized Access

shall be reduced by the amount of such damages.

8.7 Adjustments to Liability Ranges and Caps. The liability ranges and caps set forth in Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result In Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site) and 8.6 (Remedies for Security Violations by Third Parties) shall be adjusted on the tenth (10th) anniversary of the Effective Date and every tenth (10th) anniversary thereafter during the term of this Amended Settlement

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Agreement to that amount which is equal to the product obtained by multiplying (a) the amount specified in each such section, by (b) a fraction, the numerator of which is the Consumer Price Index published for the year immediately preceding the year in which the calculation is made and the denominator of which is the Consumer Price Index published for 2008.
ARTICLE IX — DISPUTE RESOLUTION

9.1 Arbitration of Disputes and Exceptions.

(a)

General Rules. Unless otherwise set forth in this

Section 9.1 (Arbitration of Disputes and Exceptions), all disputes

between and among Google, Rightsholders, Claimants, the Registry

and Participating Libraries arising out of this Amended Settlement

Agreement, and disputes pursuant to Section 13.2(d) (Claims for

Content that is Neither a Book nor an Insert), shall be subject to this

Article IX (Dispute Resolution), including disputes involving

Claimants and Rightsholders of Inserts; provided, that disputes

relating to Books between member(s) of the Author Sub-Class, on the

one hand, and member(s) of the Publisher Sub-Class, on the other

hand, shall be subject to this Article IX (Dispute Resolution) only to

the extent provided in the Author-Publisher Procedures, and disputes

between and among members of the Publisher Sub-Class relating to

Books shall not be subject to this Article IX (Dispute Resolution)

unless otherwise agreed between such members; and, provided

further, that with respect to any dispute between or among

Rightsholders and Claimants, the parties to such dispute may elect to

resolve such dispute in court or by such other dispute resolution

procedure as they may agree.

(b)

Exceptions. This Article IX (Dispute Resolution)

shall not apply to disputes regarding:

(i)

Breaches of this Amended Settlement Agreement that

occur prior to the Effective Date;

(ii)

Google’s obligation to provide Digital Copies to an

Additional Contemplated Rightsholder Services Provider pursuant to Section

3.7(c) (Additional Contemplated Rightsholder Services Provider);

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(iii)

Section 4.7 (Additional Revenue Models);

(iv)

Section 7.2(a)(iv) (Limitations);

(v)

Google’s obligation not to make certain assertions in any

proceeding outside the United States pursuant to the last sentence of Section

10.2(b) (Limitations on Releases); or

(vi)

Section 17.19 (Destruction).

9.2 Executive Escalation. With respect to all disputes subject to this Article IX (Dispute Resolution), Google, any Plaintiff, any Rightsholder, any Claimant, the Registry, any Fully Participating Library, any Cooperating Library, and/or any Host Site, as applicable, shall immediately submit such disputes to a contact provided by each party to the dispute (“Contact”) for resolution. For thirty (30) days after the submission, or such other period of time as the parties to the dispute may mutually agree (the “Resolution Period”), the Contacts shall meet in person or by telephone and attempt to resolve such dispute. The Contacts must be personnel who have the proper authorizations, from each of their respective parties, to resolve the dispute in a final and binding fashion. The Contact for Google is its General Counsel, or his or her designee. The Registry will appoint a Contact. Any party other than Google and the Registry that is subject to this Article IX (Dispute Resolution) must identify a Contact at the time that a dispute involving such party is first raised or within ten (10) Business Days of receiving notice of a dispute.
9.3 Arbitration.

(a)

AAA Arbitration. With respect to all disputes

subject to this Article IX (Dispute Resolution) that have not been

resolved within the Resolution Period, each of the parties to the

dispute shall compile a specific list of the matters relating to the

dispute to which it believes the parties to the dispute have not reached

agreement, in each case setting forth its respective position in as

succinct a manner as reasonably possible (collectively, the “Matters

in Dispute”). The parties to the dispute shall, upon expiration of the

Resolution Period, agree upon and appoint one or more arbitrators

from the pool of potential arbitrators selected in accordance with

Section 9.3(c) (Pool of Potential Arbitrators). The selected

arbitrator(s) (the “Arbitrator”) shall decide the Matters in Dispute,

and only the Matters in Dispute. If the disputing parties fail to select

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the Arbitrator within fifteen (15) days after the expiration of the Resolution Period, either party may immediately file a petition for arbitration before the American Arbitration Association (the “AAA”). The place of arbitration shall be New York, New York unless the parties to the dispute agree otherwise or unless a Rightsholder or Claimant who is party to a dispute requests that the arbitration be held by telephone or videoconference in order to save time, travel and other costs. If the AAA ceases to operate in New York, New York, then the Court shall, upon the consent of Google and the Registry, appoint another entity to administer the dispute resolution procedures. The arbitrators shall apply New York law to the merits of any dispute or claim, without reference to rules of conflict of law.

(b)

Arbitrator. The Arbitrator shall be drawn from a

special pool of arbitrators who will be familiar with the area of the

dispute (e.g., the publishing industry, security, the Internet) as well as

this Amended Settlement Agreement.

(c)

Pool of Potential Arbitrators. Google and the

Registry will create the pool of arbitrators in conjunction with the

AAA; provided, however, that, for disputes involving any Fully

Participating Library, Cooperating Library or Public Domain Library,

the arbitrators need not be selected from such pool. The pool will be

drawn from one or more of the following:

(i)

Current AAA arbitrators;

(ii) and

Individuals recommended by Google and the Plaintiffs;

(iii)

Individuals identified through a search in conjunction with

(or conducted by) AAA.

(d)

Expedited Procedures. Except for disputes listed

in Section 9.3(e) (Other Disputes), all disputes subject to this Article

IX (Dispute Resolution) shall be arbitrated before a single Arbitrator

under the Expedited Procedures of the AAA Commercial Arbitration

Rules; provided, however, that a party may petition the Arbitrator for

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discovery, if reasonably necessary for resolution of the dispute and the parties may mutually agree on other procedures.

(e)

Other Disputes. Any disputes arising under the

following Sections shall be arbitrated under the AAA Commercial

Arbitration Rules, unless the parties agree to the procedures set forth

in Section 9.3(d) (Expedited Procedures), and the Arbitrator shall be

a panel of three (3) arbitrators:

(i)

Sections 3.7(a) (Obligation) and (b) (Failure to Provide

Contemplated Rightsholder Services);

(ii)

Section 3.8 (Effect of Changes in Law);

(iii)

Section 4.1 (Institutional Subscriptions);

(iv)

Section 4.2 (Consumer Purchases);

(v) Subsidies);

Section 4.5(b) (Discounting, Special Offers and

(vi)

Section 4.9 (Economic Terms Renegotiation);

(vii)

Section 6.3 (Unclaimed Funds and Public Domain Funds);

(viii) Section 7.2 (Fully Participating Library Uses);

(ix)

Section 8.2 (Security Standard, Security Implementation

Plan and Security Audits); and

(x)

Any breach of Article VIII (Security and Breach) related

to a Security Implementation Plan or claims related to the security of Digital

Copies of Books, the Research Corpus or any LDC.

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9.4 Notice to Rightsholders. The Registry will provide notice to Registered Rightsholders as required pursuant to Section 8.3(d) (Consolidation of Claims) and concerning the disputes identified in Sections 9.3(e)(i)-(vi) (Other Disputes).
9.5 Notice to Registry; Consolidation. Notice of all disputes subject to this Article IX (Dispute Resolution) will be provided to the Registry as well as AAA. If the Registry believes that multiple disputes raise common issues, the Registry may request the parties to consolidate them; however, certain disputes are subject to mandatory consolidation pursuant to Section 7.2(f)(i) (Fully Participating Libraries), Section 7.2(f)(ii) (Cooperating Libraries) and Section 8.3(d) (Consolidation of Claims).
9.6 Precedential Effect. The AAA or the Registry shall maintain a database of Decisions rendered pursuant to this Article IX (Dispute Resolution) for purposes of this Amended Settlement Agreement only. The Arbitrators may rely on or be guided by such precedent, as appropriate, but stare decisis will not apply. In any dispute between Google and the Registry and/or a Rightsholder subject to this Article IX (Dispute Resolution), however, no such party to such dispute shall seek to admit into evidence, or otherwise refer to, the fact that Google has entered into or concluded any negotiation or arbitration with a Participating Library.
9.7 Decision. The Arbitrator shall decide the Matters in Dispute by written opinion with clear and express language (the “Decision”). The Decision shall be final, binding and nonappealable, and judgment on the Decision may be entered only in the Court. Upon receipt of the Decision, the parties shall immediately effect the resolution in accordance with the Decision.
9.8 Confidentiality. The entire contents of all papers and records related to the arbitration, and, except as provided in Section 8.3(d) (Consolidation of Claims) and Section 9.4 (Notice to Rightsholders) or as agreed by the parties to the arbitration, the fact of the arbitration, shall be deemed to be confidential information of the parties to the arbitration; provided, however, that (a) the Registry may be permitted to disclose the existence and costs of arbitrations to which it is a party in connection with required financial disclosures; and (b) all Registered Rightsholders and parties to an arbitration will have access to all Decisions; provided, further, (i) such Rightsholders and/or parties shall have executed an agreement obligating the Rightsholders and/or parties to use the Decisions only for the prosecution or defense of a claim and not to make the Decisions public; and (ii) names, other personally identifiable information and any confidential information will be redacted from the Decisions before the Decisions are made available to such Rightsholders and/or parties.
9.9 Fees and Costs. Any Arbitrator’s fees and any costs payable to the Arbitrator shall be shared equally by the parties to the arbitration, unless otherwise agreed under this Amended Settlement Agreement (including the Author-Publisher Procedures).

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Each party to the arbitration will bear his, her or its own legal fees and expenses, unless otherwise provided under this Amended Settlement Agreement.
9.10 Joinder. Joinder is permissible if required for complete resolution of claim.
9.11 Injunctive Relief. If a party would be prejudiced or irreparably harmed by delay (e.g., the party has need for emergency or temporary injunctive relief, which could be in the form of specific performance), a party has repeatedly, willfully or intentionally not complied with its obligations under this Amended Settlement Agreement, or a party is claiming a breach of Section 15.2 (Obligations), the party claiming a breach of this Amended Settlement Agreement may apply to any court of competent jurisdiction (or, if the dispute involves a Fully Participating Library, the Court) for a temporary restraining order, preliminary injunction, other interim or conservatory relief or injunctive relief, as necessary, without breach of this Article IX (Dispute Resolution) and without any abridgment of the powers of the Arbitrator, while simultaneously following the process set forth in Section 9.2 (Executive Escalation) and, if unsuccessful, the arbitration procedure set forth in this Article IX (Dispute Resolution).
9.12 Continuing Jurisdiction. This Article IX (Dispute Resolution) is subject to Section 17.23 (Court’s Continuing Jurisdiction).
ARTICLE X — RELEASES

10.1 Definitions.

(a)

“Claim” means any claim (including any claim

relating to any right, contract, obligation, debt, dues, sum of money,

or attorneys’ fees), action, cause of action, proceeding, adjustment,

execution, offset, judgment, suit, accounting, reckoning, bond, bill,

trespass, damage, demand (whether written or oral), liability,

controversy, expense, and loss whatsoever, whether arising in law or

in equity, based on United States federal, state, territorial or common

law, whether foreseen or unforeseen, matured or unmatured, known

or unknown, accrued or not accrued, existing now or arising in the

future.

(b)

“Cooperating Library Released Claims” means

each and every Claim of every Rightsholder (including all Claims of

copyright infringement, trademark infringement, or moral rights

violation) against each Cooperating Library Releasee that arises out

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of, with respect to Books and Inserts held by such Cooperating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Cooperating Library Releasee’s provision of Books and Inserts (or Books and Inserts in a form Digitized by such Cooperating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Cooperating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or permitted by the applicable Library-Registry (Cooperating) Agreement, as if the Cooperating Library had been a Cooperating Library at the time of such use, and (v) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Cooperating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry (Cooperating) Agreement.

(c)

“Cooperating Library Releasees” means each

Cooperating Library and all of such Cooperating Library’s past,

present, and future parents, predecessors, subsidiaries, affiliates, and

divisions, all of its and their respective contractors, and licensees, all

of its and their respective officers, directors, trustees, regents, owners,

partners, governors, patrons, students, members, employees, and

agents, and all of its and their respective nominees, successors,

assigns and legal representatives.

(d)

“Fully Participating Library Released Claims”

means each and every Claim of every Rightsholder (including all

Claims of copyright infringement, trademark infringement, or moral

rights violation) against each Fully Participating Library Releasee

that arises out of, with respect to Books and Inserts held by such

Fully Participating Library Releasee: (A) any of the following

actions taken on or before the Effective Date, (i) such Fully

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Participating Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Fully Participating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry (Fully Participating) Agreement, as if the Fully Participating Library had been a Fully Participating Library at the time of such use, and (v) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Fully Participating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry (Fully Participating) Agreement.

(e)

“Fully Participating Library Releasees” means

each Fully Participating Library and all of such Fully Participating

Library’s past, present, and future parents, predecessors, subsidiaries,

affiliates, and divisions, all of its and their respective contractors and

licensees, all of its and their respective officers, directors, trustees,

regents, owners, partners, governors, patrons, students, members,

employees, and agents, and all of its and their respective nominees,

successors, assigns and legal representatives.

(f)

“Google Released Claims” means each and every

Claim of every Rightsholder that has been or could have been

asserted in the Action against any Google Releasee (including all

Claims of copyright infringement, trademark infringement, or moral

rights violation) that arises out of: (A) any of the following actions

taken on or before the Effective Date, (i) any Fully Participating

Library Releasee’s, Cooperating Library Releasee’s, Public Domain

Library Releasee’s or Other Library Releasee’s provision of Books

and Inserts (or the provision of Books and Inserts in a form Digitized

by such Fully Participating Library Releasee, Cooperating Library

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Releasee, Public Domain Library Releasee or Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of Books and Inserts for Google’s use in Google Products and Services other than such uses that are based on authorizations granted to Google under separate agreements entered into directly with the Rightsholder, (iii) the distribution to each Fully Participating Library, Cooperating Library and Public Domain Library of Digital Copies of Books and Inserts held by such library, (iv) any use by a Fully Participating Library, a Cooperating Library or a Public Domain Library of such Digital Copies, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry Agreement, as if such Fully Participating Library, Cooperating Library or Public Domain Library had been a Fully Participating Library, Cooperating Library or Public Domain Library at the time of such use, and (v) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s or Public Domain Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or a Library-Registry Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this Amended Settlement Agreement or such LibraryRegistry Agreement; and (C) on or before December 27, 2008, the distribution to each Other Library of Digital Copies of Books and Inserts held by such library.

(g)

“Google Releasees” means Google and all of its

past, present, and future parents, predecessors, subsidiaries, affiliates,

and divisions, all of its and their respective contractors and licensees,

all of its and their respective officers, directors, owners, partners,

governors, employees, and agents, and all of its and their respective

nominees, successors, assigns and legal representatives, provided,

however, that the Google Releasees do not include any library or any

other Person providing a Book or Insert to Google for purposes of

Digitization by Google or providing Books and Inserts to Google in a

Digitized form, except to the extent such library acts as a contractor

to Google as contemplated by Section 3.1 (Digitization, Identification

and Use of Books).

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(h)

“Other Library Released Claims” means each and

every Claim of every Rightsholder (including all Claims of copyright

infringement, trademark infringement, or moral rights violation)

against each Other Library Releasee that arises out of, with respect to

Books and Inserts held by such Other Library Releasee: (A) any of

the following actions taken on or before the Effective Date, (i) such

Other Library Releasee’s provision of such Books and Inserts (or

Books and Inserts in a form Digitized by such Other Library

Releasee) to a Google Releasee for the purposes of Digitization and

use in Google Products and Services, and (ii) any Google Releasee’s

Digitization of such Books and Inserts and any Google Releasee’s

use of Digital Copies of such Books and Inserts for use in Google

Products and Services; and (B) on or before December 27, 2008, such

Other Library Releasee’s receipt from a Google Releasee of Digital

Copies of such Books and Inserts (but, for purposes of clarification,

not such Other Library Releasee’s use of such Digital Copies).

(i)

“Other Library Releasees” means each Other

Library, and all of such Other Library’s past, present, and future

parents, predecessors, subsidiaries, affiliates, and divisions, all of its

and their respective contractors and licensees, all of its and their

respective officers, directors, trustees, regents, owners, partners,

governors, patrons, members, students, employees, and agents, and

all of its and their respective nominees, successors, assigns and legal

representatives.

(j)

“Public Domain Library Released Claims” means

each and every Claim of every Rightsholder (including all Claims of

copyright infringement, trademark infringement, or moral rights

violation) against each Public Domain Library Releasee that arises

out of, with respect to Books and Inserts held by such Public Domain

Library Releasee: (A) any of the following actions taken on or before

the Effective Date, (i) such Public Domain Library Releasee’s

provision of Books and Inserts (or provision of Books and Inserts in a

form Digitized by such Public Domain Library Releasee) to a Google

Releasee for the purposes of Digitization and use in Google Products

and Services, (ii) any Google Releasee’s Digitization of such Books

and Inserts and any Google Releasee’s use of Digital Copies of such

Books and Inserts for Google’s use in Google Products and Services,

(iii) such Public Domain Library Releasee’s receipt from a Google

Releasee of Digital Copies of such Books and Inserts, and (iv) such

Public Domain Library Releasee’s use of Digital Copies of such

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Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Public Domain) Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry (Public Domain) Agreement.

(k)

“Public Domain Library Releasees” means each

Public Domain Library and all of such Public Domain Library’s past,

present, and future parents, predecessors, subsidiaries, affiliates, and

divisions, all of its and their respective contractors and licensees, all

of its and their respective officers, directors, trustees, regents, owners,

partners, governors, patrons, members, students, employees, and

agents, and all of its and their respective nominees, successors,

assigns and legal representatives.

(l)

“Releases” means the releases set forth in Section

10.2 (Releases) by all of the Rightsholder Releasors and by all of the

Google Releasees.

(m)

“Rightsholder Releasors” means Plaintiffs, any

and all Rightsholders, and each Plaintiff’s and Rightsholder’s heirs,

executors, administrators, beneficiaries, predecessors, successors,

assigns, employees, and agents, any person claiming by or through

any Rightsholder and any Person representing any or all Plaintiffs

and/or Rightsholders.

(n)

Scope of Release. Where, in this Article X

(Releases), Claims are released, such release includes the

reproduction, distribution, transmission, display, and preparation of

derivative works of such Books or Inserts undertaken for the purpose

of, and only to the extent reasonably required for, making the

released use, by whatever means and technology.

10.2 Releases.

(a)

Release of Google Releasees, Fully Participating

Library Releasees, Cooperating Library Releasees, Public Domain

Releasees and Other Library Releasees. Without further action by

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anyone, as of the Effective Date, the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged (i) the Google Released Claims against each and every one of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (ii) the Fully Participating Library Released Claims against each and every one of the Fully Participating Library Releasees, (iii) the Cooperating Library Released Claims against each and every one of the Cooperating Library Releasees, (iv) the Public Domain Library Released Claims against each and every one of the Public Domain Library Releasees, (v) the Other Library Released Claims against each and every one of the Other Library Releasees, provided that no Other Library Released Claims are released, relinquished, settled or discharged against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, (vi) all Claims against the Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees, Class Counsel and Plaintiffs that relate in any way to the commencement, prosecution, defense or settlement of the Action or to the negotiation or execution of the original Settlement Agreement or this Amended Settlement Agreement or the Library-Registry Agreements, and (vii) any and all Claims for attorneys’ fees, costs or disbursements incurred by Class Counsel or other counsel representing Plaintiffs in connection with or related in any manner to the Action, the settlement of the Action, including the negotiation and execution of the original Settlement Agreement, this Amended Settlement Agreement or the Author-Publisher Procedures, the Library-Registry Agreements, or the administration of the Action provided that in the case of this clause (vii) Google meets its payment obligations under Section 5.5 (Attorneys’ Fees).

(b)

Limitations on Releases. The Releases are subject

to the following: (i) nothing in this Amended Settlement Agreement

releases or adversely affects any Claims of any Amended Settlement

Class members who opted out of the original Settlement Agreement

by September 4, 2009 or who opt out of the Amended Settlement

Agreement between the Amended Settlement Agreement Date and

the Supplemental Opt-Out Deadline, (ii) no Claims are released with

respect to any Digitization or any other form of copying or use of

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Books or Inserts outside the United States (e.g., making a copy of, or using, a Book in Finland), (iii) no Claims are released with respect to any acts or omissions after October 28, 2008 that, if occurring after the Effective Date, would not be authorized by this Amended Settlement Agreement, (iv) no Claims are released with respect to breaches of this Amended Settlement Agreement after the Effective Date, and (v) no Claims are released with respect to any acts of copying, transmission or distribution of a Book or Insert that Google undertakes in response to a search or other request of a user outside of the United States that results in displaying parts or all of such Book or Insert in such user’s jurisdiction, except if such display is lawful in such jurisdiction or Google has the appropriate permission for such display in such jurisdiction. Google agrees that, in asserting or responding to any legal claim outside the United States for copyright infringement arising from any use of Books or Inserts outside the United States, it will not in any way assert, including by way of defense, that, based on the fact that this Amended Settlement Agreement or the Final Judgment and Order of Dismissal authorizes, or releases Claims relating to, the making of copies or uses of Books and Inserts in the United States, either applicable non-United States law or a Rightsholder authorized such use of Books or Inserts outside the United States.

(c)

Effect of Dismissal. The Final Judgment and

Order of Dismissal shall have the effect of a dismissal with prejudice

of all Fully Participating Library Released Claims, Cooperating

Library Released Claims, Public Domain Library Released Claims

and Other Library Released Claims as though each Fully

Participating Library Releasee, Cooperating Library Releasee, Public

Domain Releasee and Other Library Releasee had been named a

defendant in the Action, and the Final Judgment and Order of

Dismissal shall bar all such Fully Participating Library Released

Claims, Cooperating Library Released Claims, Public Domain

Library Released Claims and Other Library Released Claims by any

Rightsholder Releasor, provided that the Final Judgment and Order of

Dismissal shall have no such effect with respect to, and shall not bar,

any Other Library Released Claims against any Other Library

Releasee if and to the extent such Other Library Releasee, at any

time, makes any infringing use of a Digital Copy.

(d)

Bar Order. The Final Judgment and Order of

Dismissal shall forever bar (a) all Rightsholder Releasors from

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instituting, maintaining, prosecuting, assigning or collecting on any and all (i) Claims against any Google Releasee, Fully Participating Library Releasee, Cooperating Library Releasee, and Public Domain Library Releasee that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or to the negotiation or execution of the original Settlement Agreement, this Amended Settlement Agreement or the Library-Registry Agreements, (ii) Google Released Claims against any of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (iii) Fully Participating Library Released Claims against any of the Fully Participating Library Releasees, (iv) the Cooperating Library Released Claims against any of the Cooperating Library Releasees, (v) the Public Domain Library Released Claims against any of the Public Domain Library Releasees, and (vi) Other Library Released Claims against any of the Other Library Releasees, provided that no Rightsholder Releasor is barred from instituting, maintaining, prosecuting, assigning or collecting on any Other Library Released Claim against an Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, including without limitation, by participating in, or recovering as a result of, any class or representative action, whether under United States federal or state law, in which any such Google Released Claims, Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims, or Other Library Released Claims have been or may be brought, and (b) all Google Releasees, all Cooperating Library Releasees, all Fully Participating Library Releasees, all Public Domain Library Releasees and all Other Library Releasees from instituting, maintaining, prosecuting, assigning or collecting on, any and all Claims against any Rightsholder Releasor or Class Counsel that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or the negotiation and execution of the original Settlement Agreement, this Amended Settlement Agreement or the LibraryRegistry Agreements.

(e)

Release of Rightsholder Releasors and Class

Counsel. Without further action by anyone, as of the Effective Date,

each of the Google Releasees, for good and sufficient consideration,

the receipt and adequacy of which are hereby acknowledged, shall be

deemed to have, and by operation of law and the Final Judgment and

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Order of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation and execution of the original Settlement Agreement or this Amended Settlement Agreement.

(f)

Mutual Releases by Insert/Book Rightsholder

Releasors. Without further action by anyone, as of the Effective

Date, each of the Rightsholder Releasors, for good and sufficient

consideration, the receipt and adequacy of which are hereby

acknowledged, shall be deemed to have, and by operation of law and

the Final Judgment and Order of Dismissal shall have, fully, finally,

and forever released, relinquished, settled, and discharged Claims

arising out of the inclusion, removal or exclusion of a Book or an

Insert in or from Google Products and Services by (i) any

Rightsholder Releasor that has a Copyright Interest in an Insert

against each and every Rightsholder Releasor that has a Copyright

Interest in a Book that contains such Insert and (ii) any Rightsholder

Releasor that has a Copyright Interest in a Book against each and

every Rightsholder Releasor that has a Copyright Interest in an Insert

contained in such Book.

(g)

Waiver of Section 1542. With respect to any and

all of the Releases, upon the Effective Date and without further

action, for good and valuable consideration, the receipt and adequacy

of which are hereby acknowledged, all Rightsholder Releasors and

Google Releasees shall be deemed to have, and by operation of the

Final Judgment and Order of Dismissal shall have, fully, finally, and

forever expressly waived and relinquished, to the fullest extent

permitted by law, any and all provisions, rights, and benefits of

Section 1542 of the California Civil Code and any and all provisions,

rights, and benefits of any United States federal, state or territorial

law, rule or regulation or principle of common law that is similar,

comparable, equivalent or identical to Section 1542 of the California

Civil Code, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the

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time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Each Rightsholder Releasor and Google Releasee may hereafter discover facts other than or different from those that he, she, or it knows or believes to be true with respect to the Claims released by the Releases, but, notwithstanding Section 1542 and any similar provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation or common law principle, each such Person hereby expressly waives and fully, finally, and forever settles and releases, upon the Effective Date, any known or unknown, suspected or unsuspected, contingent or non-contingent Claim that is released by the Releases, without regard to the subsequent discovery or existence of such different or additional facts.

(h)

Foreign Claims. No Rightsholder releases any

Claim for the reproduction, distribution, transmission, display,

adaptation or preparation of derivative works of any Book or Insert in

any jurisdiction outside the United States.

ARTICLE XI — PRELIMINARY SETTLEMENT APPROVAL

As soon as practicable after the Amended Settlement Agreement Date, Plaintiffs shall file a Motion For Preliminary Approval of the Amended Settlement Agreement, together with a Proposed Order For Preliminary Settlement Approval substantially in a form attached hereto as Attachment H ([Proposed] Order Granting Preliminary Settlement Approval).

ARTICLE XII — CLASS NOTICE PROGRAM

12.1 Original Notice. In connection with the motion filed on October 28, 2008 for preliminary approval of the Settlement Agreement, Class Counsel submitted to the Court a proposed Notice of Class Action Settlement (“Notice”) and a Summary Notice of Class Action Settlement (“Summary Notice”) in the forms attached hereto, respectively, as Attachment I (Notice of Class Action Settlement) and Attachment J (Summary Notice of Class Action Settlement). Class Counsel recommended to the Court that the Class Notice Program provide notice to the widest practicable group of original settlement class members inside and outside the United States, and that the Class Notice Program would consist of the following: (a) Direct Notice – sending the Notice (translated from English whenever appropriate) by email or first class mail, postage prepaid, to those original settlement class members that could be identified by any reasonable means, with notice

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by email used whenever possible, and postal notice limited to those original settlement class members whose email addresses were unavailable; (b) Paid Media – publishing the Summary Notice (translated from English whenever appropriate) in the publications listed on the Paid Media Schedule attached hereto as Attachment K (Paid Media Schedule), or reasonable substitutes, if necessary (e.g., if certain publications declined to publish the Summary Notice), that would provide the same level of coverage to the intended audience, as well as using online advertising directing users to the Settlement Website; (c) Earned Media – utilizing press coverage, including the issuance by Google and the Plaintiffs of joint press releases and convening of a joint press conference, which would, among other things, provide the press with the address of the website dedicated to the Settlement as referenced below and contact information for original settlement class members to learn about the Settlement and how to obtain the Notice; (d) Additional Outreach – providing notice materials to websites and organizations whose constituencies may have included original settlement class members and encouraging them to direct interested parties to the Settlement Administrator or the Settlement Website; and (e) Settlement Website – maintenance of a website dedicated to the Settlement and through which the Notice, the original Settlement Agreement, and other relevant information (translated from English whenever appropriate) would be made available, located at http://www.googlebooksettlement.com (the “Settlement Website”). In connection with clause (d), Google agreed to prominently display a statement on the Google Book Search home page (http://books.google.com/) informing users that an agreement had been reached with authors and publishers and linking to a user information page. At the top of such user information page immediately beneath its title, Google agreed to display a statement directing authors, publishers and copyright holders to visit the Settlement Website and linking to the Settlement Website. By Order dated November 14, 2008, the Court approved the form and aforementioned manner of dissemination of the Notice and Summary Notice, and Plaintiffs implemented the Class Notice Program as ordered.
12.2 Supplemental Notice. Class Counsel will submit to the Court a proposed Supplemental Notice of Class Action Settlement (“Supplemental Notice”) substantially in the form attached hereto as Attachment N (Supplemental Notice). Class Counsel will recommend to the Court that the Supplemental Notice (translated into the same languages into which the original Notice was translated) be (a) emailed or sent by postal mail to all Persons who provided contact information on the Settlement Website or on a Claim Form, who opted out of the original Settlement Agreement, or who filed an objection, amicus position or other statement with the Court, (b) emailed or sent by postal mail to all authors’ and publishers’ groups and Reproduction Rights Organizations that assisted Plaintiffs in the dissemination of the original Notice, (c) placed on the Settlement Website, and (d) announced in and outside the United States, Canada, the United Kingdom and Australia with a press release issued by the Supplemental Notice provider. In addition, the Settlement Administrator will continue its informational toll-free telephone service. All Administrative Costs, including the costs of the Class Notice Program, shall be paid solely out of the Settlement Fund.

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ARTICLE XIII — SETTLEMENT ADMINISTRATION PROGRAM

13.1 Registration and Completing Claims. To receive the benefits of the Settlement, a Person claiming to be a Rightsholder or acting on behalf of a Rightsholder (a “Claimant”) must provide to the Registry the information set forth below on the claim form provided by the Settlement Administrator (“Claim Form”); provided that, if a Publisher Sub-Class Claimant selects Section 13.1(c)(ii)(2)(B) rather than Section 13.1(c)(ii)(2)(A) for a Book, then Claimant may not make a claim for a Cash Payment for that Book and may not Remove that Book, but Claimant’s rights under the Amended Settlement Agreement (including the right to exclude a Book from Display Uses) will not otherwise be affected by such selection. Claimants will be able to complete and submit their Claim Forms on the Settlement Website, by postal mail, and otherwise as the Registry may determine in order to maximize Rightsholder efficiency in completing the Claim Forms.

(a)

General Information. A Claimant must provide

the following:

(i)

his, her or its name and contact information, including

postal address, telephone number and, if available, email address, and if the

Claimant is, or is acting on behalf of, a U.S. Person, that Person’s social

security number or other tax identification number; and

(ii)

an attestation that (1) all of the information submitted on

the Claim Form is true to the best of his, her or its knowledge, information

and belief, and (2) the Claimant has a good faith belief that he, she or it holds

a Copyright Interest in the Book or the Insert that is the subject of the claim,

or that the Person who holds such a Copyright Interest has authorized the

Claimant to act on such Person’s behalf.

(b)

Pre-Population of Claim Forms. Based on a

Claimant’s identification of Books, Google, through a search and

selection interface, will pre-populate information regarding those

Books in the Settlement Website’s Claim Form for Books.

(c)

Books. To claim a Book (not including its

Inserts), a Claimant must:

(i)

identify whether he, she or it is the author, publisher, heir,

successor or assignee, or other type of Rightsholder of the Book;

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(ii)

indicate on the Claim Form, to the best of Claimant’s

knowledge, whether such Book:

(1)

is or is not a work for hire, and

(2)

for a Publisher Sub-Class member Claimant, whether

(A) such Publisher Sub-Class member is highly confident that the Book is

not reverted (based, e.g., on the individual Book or contract for the Book)

or (B) such Publisher Sub-Class member is confident that the Book is not

reverted (based, e.g., on the type of Book or type of contract for the

Book), or

(3)

for an Author Sub-Class member Claimant, whether

(A) such Book is or is not reverted or (B) Claimant does not know whether

such Book is reverted;

(iii)

provide information sufficient to identify such Book,

including, at a minimum, either the (1) title of the Book and the name(s) of

the author(s) and/or editors of the Book or (2) ISBN (if the Book has an

ISBN); and

(iv)

state either (1) that such Claimant believes that such Book

is not a “United States work,” as defined in 17 U.S.C. § 101 or (2) that such

Claimant believes that such Book was registered with the U.S. Copyright

Office by the Notice Commencement Date. A Claimant may provide

information through a data feed, an electronic spreadsheet or such other

means as the Registry may specify in order to maximize Rightsholder

efficiency in completing the claim forms.

(d)

Inserts. To claim an Insert, a Claimant must

identify whether he, she or it is the author, publisher, heir, successor

or assignee, or other type of Rightsholder of the Insert and must

provide information sufficient to identify such Insert, which

information shall include:

(i)

identification or a description of the content of the Insert,

and identification of the Book, Public Domain Book or Government Work in

which the Insert appears;

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(ii)

a statement that, although the Claimant believes such

permission was required, (1) the Claimant did not give permission for Online

use of the Insert as part of the work in which the Insert appears, or (2) if such

permission was granted, it was no longer in effect on or after June 1, 2003;

and

(iii)

a statement either (1) that such Claimant believes that the

Insert is not part of a work that was first published in the United States or (2)

that such Claimant believes that such Insert, either alone or as part of another

work, was registered with the U.S. Copyright Office by the Notice

Commencement Date.

13.2 Validating and Challenging Claims.

(a)

Registry Claim Review. The Registry may review

claim forms to verify that the information provided by a Claimant is

accurate and supports the claim that the Claimant, or the Person on

whose behalf the Claimant is acting, is a Rightsholder of a Book or

an Insert. Google may also provide to the Registry any information

that Google may have regarding the validity of claims. The Registry

may challenge the validity of a claim either on its own accord or

based on a dispute between or among Rightsholders under the

Author-Publisher Procedures. If the Registry reasonably requests

that a Claimant provide additional information to validate such claim,

the Claimant shall provide such information if it is within his, her or

its possession or control. The Registry may consider such

information and, in its discretion, consult with the Claimant to

validate the claim. The Registry will advise the Claimant whether the

Registry has validated or rejected its claims.

(b)

Claimant-Registry Challenges. The Claim Form

will provide that the Claimant may challenge, pursuant to Article IX

(Dispute Resolution), any Registry decision not to validate his, her or

its claim.

(c)

Google-Claimant Challenges.

(i)

As set forth in this Section 13.2(c) (Google-Claimant

Challenges), to deter and discover fraud, mistake, intentional misconduct or

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negligence by Claimants in submitting Claim Forms, Google may challenge whether a Claimant is a Rightsholder of the Book or Insert that he, she or it has claimed only in the case that the Claimant has requested Cash Payments or Removal.

(ii)

Google may only make such a challenge under the

following conditions:

(1)

in the case of requests for Cash Payments, Google may

only make such a challenge if the total amount of all claims for Cash

Payments exceeds forty-five million United States dollars (U.S. $45

million), and

(2)

in the case of requests for Removal of Books that are

not Commercially Available, Google may only make such a challenge if

the total number of Books that are not Commercially Available that

Claimants have directed to be Removed exceeds two hundred thousand

(200,000).

(iii)

Further, Google may only make such a challenge if:

(1)

(A) such Claimant has filed such claims for more than

(I) a number of Books or Inserts agreed between Google and the Plaintiffs

in the case of a challenge brought pursuant to clause (ii)(1) above, or (II)

another number of Books agreed between Google and the Plaintiffs in the

case of a challenge brought pursuant to clause (ii)(2) above, in a

confidential letter agreement, such numbers not disclosed herein for the

purpose of fraud prevention, or (B) Google believes that such Claimant is

a Person that has registered multiple claims under one or more aliases, and

(2)

no dispute between such Claimant and any other

Claimants for the Book was, or is being, resolved pursuant to the Author-

Publisher Procedures.

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(iv)

Any challenge in the case of:

(1)

clause (ii)(1) above may be made no later than ninety

(90) days after the later of (A) the date Google receives the Registry’s

final report under Section 13.6 (Final Report Regarding Cash Payments)

or (B) the Effective Date, or

(2)

clause (ii)(2) above may be made no later than ninety

(90) days after the later of (A) the condition in clause (ii)(2) has been met,

(B) the Effective Date or (C) the date the request for Removal was made.

(v)

Any challenge brought pursuant to this Section 13.2(c)

(Google-Claimant Challenges) must be based on Google’s good faith belief,

supported by evidence, that the Claimant’s claim may be invalid. Google

shall not challenge claims in an effort to deter Claimants from submitting

valid claims.

(vi)

Google will initiate challenges by providing notice to the

Registry, and the Registry will forward such notice to the Claimant. Google

will attempt to resolve the challenge with the Registry, or another

representative chosen by the Claimant, on behalf of the Claimant. If Google

is unable to resolve the challenge with the Registry or such other

representative on behalf of the Claimant and continues to have a good faith

belief, supported by evidence, that the Claimant’s claim may be invalid, then

Google may initiate dispute resolution pursuant to Article IX (Dispute

Resolution). Provided that the Claimant completes the Claim Form as

required, including providing all required attestations, Google will bear the

burden of providing clear and convincing evidence, including significant

evidence specific to the Books or Inserts that are the subject of the claim,

which evidence is reviewed by an individual such as a Google attorney, that

a reasonable number of the Claimant’s claims within a set of claims

identified by Google are invalid; provided that information about Books

other than those that are the subject of Claimant’s claims will only be used

by Google to challenge the Claimant’s claims for an imprint if Google shows

that such information is relevant to such claims; provided, further that

evidence of industry-wide baseline error rates in claims filed with the

Registry is not clear and convincing evidence. (For purposes of this Section

13.2(c)(vi), a “set of claims,” means, with respect to claims of a member of

the Publisher Sub-Class, claims of Books published by such member’s

imprint, that are similar with respect to such evidence and that share other

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characteristics, such as genre and date of publication.) If Google meets this burden, the Claimant will bear the burden of proving the validity of the claims within such set. If Google does not meet this burden, Google will bear the burden of proving the invalidity of the challenged claims.

(vii)

A claim for a Commercially Available Book shall not be

subject to any challenge under this Section 13.2(c) (Google-Claimant

Challenges) unless, upon review of the Claim Form and other information

that Google may reasonably consult, there is no apparent link between the

Claimant and the publisher of the Book. In any challenge with respect to a

Commercially Available Book where Google asserts that the claim is invalid

because rights in the Book have reverted, Google shall provide clear and

convincing evidence specific to such Book.

(d)

Claims for Content that is Neither a Book nor an

Insert. Nothing in this Amended Settlement Agreement obligates

Google to take directions for which this Amended Settlement

Agreement provides, or to make Cash Payments, with respect to

content that is not a Book or an Insert. Any Claimant may dispute a

determination by Google or the Registry that the content that such

Claimant has claimed is not a Book or an Insert only pursuant to

Article IX (Dispute Resolution).

13.3 Claiming Process and Website. The Registry and, for so long as Google continues to provide operational support for the Registry, Google, will (i) assist Claimants in claiming Books pursuant to Section 13.1 (Registration and Completing Claim Forms) and (ii) maintain and improve the Settlement Website so as to facilitate the claiming of Books pursuant to Article XII (Class Notice Program). Google will also use reasonable commercial efforts to correct errors in the Books Database as Google discovers such errors or as they are identified to Google.
13.4 Time for Filing Deadline for Registration/Claim Forms. Rightsholders may register to participate in the Settlement at any time, provided that a Rightsholder who may be eligible for a Cash Payment pursuant to Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) shall be required to complete and submit the portion of the Claim Form relating to the claim for such Cash Payment by midnight, Eastern Time, March 31, 2011 or such other time as the Court may order.
13.5 Registry Determination of Rightsholder. The Registry will maintain a database of Rightsholders and their respective rights under, and directions made pursuant to, this Amended Settlement Agreement. Except as provided in Section 13.2 (Validating

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and Challenging Claims), in the event of a dispute as to such rights and directions, the Registry will determine the appropriate Rightsholder(s) (for Books, pursuant to the Author-Publisher Procedures) or, if the Registry cannot resolve any such dispute, such dispute will be resolved as provided in Article IX (Dispute Resolution). Until such determination is made, the Registry shall not make any Cash Payment or other payment, or implement any direction for Removal, exclusion, inclusion, or pricing, or any other directions with respect to the matters that are the subject of such dispute.
13.6 Final Report Regarding Cash Payments.

(a)

Draft Final Report. Within a reasonable time after

the period set forth in Section 13.4 (Time for Filing Deadline for

Registration/Claim Forms) for a Rightsholder to submit a Claim

Form for a Cash Payment, the Registry shall issue a draft final report

to Google and Class Counsel setting forth: (i) the number of valid

Claim Forms requesting such Cash Payment, (ii) a list of the Books

claimed, (iii) a list of the Inserts claimed and the Books, Government

Works or Public Domain Works in which they appear, and (iv) the

amount of the Supplemental Deposit, if any, that Google is required

to make pursuant to Article V (Other Settlement Benefits) based on

the information in such draft final report.

(b)

Further Information. Based on the draft final

report, Google will provide the following information:

(i)

any Book for which a Cash Payment has been requested

(1) that has the same Principal Work as another Book for which a Cash

Payment has also been requested and (2) where the soft cover Book does not

contain additional or different Protected Expression as compared to the hard

cover Book but a Cash Payment has been requested for both,

(ii)

any Insert for which a Cash Payment has been requested

(1) for appearance of the Insert in more than one Book, Principal Work or

Government Work, and (2) for the Book in which such Insert appeared as

content that was not an Insert, and

(iii)

any Principal Work for which a Cash Payment has been

requested both for that Principal Work and for Expression from that

Principal Work that is an Insert.

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(c)

Final Report. The Registry will issue a final report

setting forth the information in Section 13.6(a) (Draft Final Report),

as amended to take into account the further information provided by

Google pursuant to Section 13.6(b) (Further Information) and to be

consistent with Google’s obligations under Section 5.1(a) (Cash

Payments).

(d)

Disputes. Any disputes regarding the final report

shall be resolved pursuant to Article IX (Dispute Resolution).

13.7 No Liability For Settlement or Registry Administration. No Person will have any claim against Plaintiffs, Class Counsel, Google, the Registry, the Settlement Administrator or any agent of any such Person for (a) any decision with respect to any Cash Payment or (b) actions taken with respect to any Cash Payments or other disbursements from the Settlement Fund. Except as expressly set forth herein, this Amended Settlement Agreement is not intended to, nor shall it in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against Plaintiffs, Class Counsel, the Registry, Settlement Administrator or other agents designated by Class Counsel, Google or its counsel, or any third party.
ARTICLE XIV — FINAL FAIRNESS HEARING

Plaintiffs shall, at least one week prior to the hearing for final approval of this Amended Settlement Agreement (the “Final Fairness Hearing”), as set by the Court, or some other time as the Court may order, file a Motion for Final Judgment and Order of Dismissal substantially in the form attached hereto as Attachment L ([Proposed] Final Judgment and Order of Dismissal).

ARTICLE XV — CONFIDENTIALITY

15.1 Confidential Information. “Confidential Information” means any information relating to or disclosed in the course of implementing the original Settlement Agreement or this Amended Settlement Agreement by any Plaintiff or Google, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, including the content of negotiations between any of Plaintiffs and Google, information about any customers, resellers and advertisers, technical processes and algorithms, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data or pricing of any Plaintiff or Google, including information that may be disclosed by an auditor under Sections 4.6(e) (Audit Rights), 6.3(d) (Audit Rights) and 8.2(c) (Audits). “Confidential

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Information” shall not include information (a) that members of the Amended Settlement Class reasonably have the right to know as Amended Settlement Class members represented in the Action, (b) already lawfully known by the receiving party without an obligation of confidentiality, (c) independently developed by the receiving party at any time without use of or reference to Confidential Information, (d) disclosed in published materials, (e) generally known to the public, or (f) lawfully obtained from any third party without breach of such third party’s obligations of confidentiality.
15.2 Obligations. Confidential Information shall be governed by the Settlement Discussions Confidentiality Agreement and such agreement shall continue to be in effect according to its terms. The Registry and Google will enter into a non-disclosure agreement that will supersede the Settlement Discussions Confidentiality Agreement on a going forward basis.
15.3 Confidentiality of Rightsholder Information. Google shall maintain and keep in strict confidence, and shall not use or disclose for any purpose other than to effectuate this Amended Settlement Agreement, any Rightsholder’s personally identifiable information (i.e., any information that can be used to uniquely identify, contact or locate a single person, including the Rightsholder’s computer’s unique identifier information) that Google receives in connection with the process by which Rightsholders register with the Registry, claim Books and Inserts or otherwise participate under this Amended Settlement Agreement, whether such information is received from the Registry or from the Rightsholder. These restrictions, however, do not apply to Rightsholder information that is publicly available or obtained by Google from other sources, and shall not limit any uses by Google that are authorized by the Rightsholder.
15.4 Disclosures Required by Law. In the event disclosure of Confidential Information is required of any party under the laws, rules or regulations of any applicable governing body, the party requested to make the disclosure (the “Disclosing Party”) will (a) only disclose that portion of the Confidential Information of the other party (the “Other Party”) reasonably required to be disclosed, (b) submit a request to such governing body that the Confidential Information or portions thereof receive confidential treatment under the laws, rules and regulations of such governing body or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body, (c) provide notice to the Other Party in advance of the disclosure so the Other Party may, at its election, seek confidential treatment for the Confidential Information, a protective order or other appropriate remedy, relief or assurances, and (d) co-operate with the Other Party to obtain such confidential treatment, orders or other remedies, relief or reliable assurances that confidential treatment will be afforded the Confidential Information so disclosed. Disclosure under this Section 15.4 (Disclosures Required by Law) shall not relieve the Disclosing Party of its obligations of confidentiality generally under this Amended Settlement Agreement. In no event shall the Disclosing Party oppose an action by the

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Other Party to obtain a protective order or other relief requiring that Confidential Information to be disclosed under this Section 15.4 (Disclosures Required by Law) be treated confidentially.
ARTICLE XVI — INTENTIONALLY OMITTED
ARTICLE XVII — MISCELLANEOUS PROVISIONS
17.1 Good Faith Efforts. Google and Plaintiffs shall cooperate in good faith to effectuate this Amended Settlement Agreement as soon as practicable, including cooperating as set forth herein in seeking the Court’s certification of the Amended Settlement Class, the Court’s preliminary and final approval of the Settlement, and the Court’s approval of procedures to secure the prompt, complete and final dismissal with prejudice of the Action. Further, Google and the Registry shall at all times perform their respective obligations under this Amended Settlement Agreement in good faith and with fair dealing.
17.2 Plaintiffs’ Participation in Settlement. None of the Representative Plaintiffs or Associational Plaintiffs will opt out of or object to the Settlement.
17.3 Final if Not Terminated. This Amended Settlement Agreement, if not terminated pursuant to any provision hereof, shall become final on the Effective Date and shall expire on the date on which the last U.S. copyright in any Book or Insert terminates.
17.4 Dismissal of Action. Upon the Final Approval Date, Plaintiffs and Rightsholders shall be deemed to have stipulated that the Action shall be dismissed with prejudice.
17.5 Effect of Termination. In the event this Amended Settlement Agreement does not become final for any reason, this Amended Settlement Agreement shall be null and void (except for the second sentence of Section 5.3(h) (Google Rights and Obligations), the first sentence of Section 15.2 (Obligations) and Section 17.6 (Reimbursement if Terminated), which will remain in full force and effect) and of no force and effect (unless all Plaintiffs and Google agree to proceed with the Settlement as they may agree to modify it (subject to Section 7.2(f)(iv) (No Modification Without Consent)), in which event Plaintiffs and Google shall proceed with this Amended Settlement Agreement as so modified), and this Amended Settlement Agreement and all negotiations and proceedings connected with it shall be without prejudice to the rights of either Google or any of the Plaintiffs, shall not be deemed or construed to be an admission by Google or any of the Plaintiffs of any fact or matter, and shall not be used in any way in the Action or in any other action or proceedings, and all parties shall have the same legal rights and obligations as they had before the Amended Settlement

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Agreement Date with respect to the matters covered by this Amended Settlement Agreement, except with respect to payments of Administrative Costs. In addition, the Settlement Discussions Confidentiality Agreement shall continue to be in effect according to its terms.
17.6 Reimbursement if Terminated. If this Amended Settlement Agreement becomes null and void pursuant to Section 17.5 (Effect of Termination), within five (5) Business Days of notice by Google to Plaintiffs of such event, the balance of the Settlement Fund, including interest, shall be disbursed to Google by wire transfer into an account designated by Google, less all Administrative Costs incurred or owing for the Settlement Administration Program. For purposes of the disbursement made pursuant to this Section 17.6 (Reimbursement if Terminated), no deduction shall be made for fees of Class Counsel for the Author Sub-Class or for any costs other than those Administrative Costs already incurred. Class Counsel shall not be responsible for any losses, principal or otherwise, of the Settlement Fund.
17.7 Jurisdiction.

(a)

Use Outside the United States.

(i)

No Other Authorizations. This Amended Settlement

Agreement does not authorize the Digitization or any other form of copying,

Display Use, Non-Display Use, or any other use of Books and Inserts,

outside the United States.

(ii)

Foreign Public Domain Works. Further, with respect to

Books that are not in the public domain under the Copyright Act in the

United States, but are in the public domain in any jurisdiction outside the

United States, this Amended Settlement Agreement neither authorizes nor

prohibits Google from exploiting those Books in such jurisdiction; provided,

however, that, in countries that do not have a copyright law that provides for

a copyright term of at least the life of the author and fifty (50) years after the

author’s death for literary works that are not anonymous or pseudonymous

where copyright is granted to natural persons, then Google will not treat

Books as in the public domain in such jurisdiction.

(iii)

Notification of Foreign Use. Google agrees to notify the

Registry if and when Google commences any use of Books or (to Google’s

knowledge) Inserts outside of the United States that displays Protected

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157

material other than material that is allowed to be displayed in Snippet Display.

(b)

Public Domain. Except as specifically set forth in

Section 17.7(a)(ii) (Foreign Public Domain Works), nothing herein

restricts Google’s use of public domain material, nor are any

authorizations given with respect to such material.

17.8 Contact with Rightsholders. Google may contact Rightsholders through the Registry with announcements related to uses of their Books and Inserts authorized by this Amended Settlement Agreement or the Registry, provided that such announcements are no more than quarterly in frequency and provided that any Rightsholder may opt out of receiving such announcements. Google shall notify Rightsholders of the existence of the Registry and the means by which Rightsholders can register and/or submit claims with the Registry, for example, through a link to the Registry on a page soliciting participation in the Google Partner Program, before initiating communication concerning the Settlement with Rightsholders with whom Google is not already in communication.
17.9 Separate Agreements with Amended Settlement Class Members. Google may already have, and may in the future enter into, separate agreements directly with individual members of the Amended Settlement Class regarding their Books, e.g., through the Google Partner Program. Nothing herein restricts or affects Google’s and such members’ right to enter into or maintain such separate agreements; however, except with respect to any member of the Amended Settlement Class with whom Google has such separate agreements as of the Amended Settlement Agreement Date, at the outset of any initial communication with such a member regarding matters under this Amended Settlement Agreement, Google shall inform such member (a) of the reason for the communication, (b) that such member’s interests are affected by the terms of this Amended Settlement Agreement and are represented by the Registry, together with a brief explanation of both, (c) that such member is free to continue to have his, her or its interests so represented, as opposed to dealing directly with Google, and (d) if such member remains interested in dealing directly with Google, Google is prepared to do so. The non-exclusive rights of Google under this Amended Settlement Agreement are in addition to any rights granted to Google by any Rightsholder in any such separate agreement; provided, however, that any specific prohibitions imposed upon Google by a Rightsholder in any such other agreement shall apply during the term of such other agreement. In cases in which Google has, on or after the Amended Settlement Agreement Date, a direct agreement with a Rightsholder with respect to that Rightsholder’s Books (through the Google Partner Program or otherwise), then the payments required to be paid to the Registry set forth in Article IV (Economic Terms for Google’s Use of Books) shall not apply to those Books and the payments set forth in the

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applicable direct agreement will apply; provided, however, that Google shall comply with the procedures in Section 3.5(c) (Take-Down or Transfer Requests).
17.10 Scan Quality. Google will strive to detect and eliminate errors in the Digitization quality or Metadata. Google makes no guarantees, however, regarding the Digitization quality or Metadata quality of any Book or Insert and, accordingly, Google will not be deemed in breach of the authorizations under this Amended Settlement Agreement due to omissions of text that may occur unintentionally due to technical limitations.
17.11 Use of Contractors. If and to the extent that Google uses third parties to exercise its rights, including to Digitize Books or Inserts, or to perform any of its obligations, as set forth in this Amended Settlement Agreement, Google shall, at all times, be and remain responsible for ensuring that such parties act in accordance with Google’s obligations under this Amended Settlement Agreement. Google shall be liable for any such third party’s nonconformance with or breach of this Amended Settlement Agreement, and such breaches shall be regarded as breaches by Google for purposes of Article VIII (Security and Breach).
17.12 Effect of Right to Exclude. Google shall not base its determination of whether to sell a Book through Consumer Purchase or Institutional Subscriptions solely on the decision of the Rightsholder to exclude that Book from a particular Display Use, unless Google demonstrates that its inability to make Preview Use or Snippet Display, as applicable, results in economic harm to Google in selling that Book or that type of Book. In the event that Google makes a determination not to sell through Consumer Purchase or Institutional Subscription a Book that the Rightsholder has excluded from Preview Use or Snippet Display, then Google will notify the Registry thereof and will state its reasons for that determination and, if the determination was based on the decision of the Rightsholder to exclude the Book from Preview Use or Snippet Display, Google will, with such notice, provide the Registry with data and information demonstrating that Google’s inability to make Preview Use or Snippet Display, as applicable, results in economic harm to Google in selling that Book or that type of Book. All disputes under this provision shall be resolved pursuant to Article IX (Dispute Resolution); provided, however, that until the Arbitrator renders a Decision in favor of Google, Google shall not refrain from selling such Book through Consumer Purchase or Institutional Subscriptions.
17.13 Patent Indemnity. Google, at its own expense, shall defend or, at its option settle, any claim, suit or proceeding brought against the Registry or its directors, officers, employees and agents by a third party arising out of a claim that Google’s Digitization of Books or Inserts, Google’s use of Books or Inserts in Google Products and Services under this Amended Settlement Agreement or any other acts of Google undertaken pursuant to or in furtherance of this Amended Settlement Agreement infringe any such third party’s United States patents, or that the Registry induced any such infringement. Google shall indemnify and hold harmless the Registry and any and all of

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its directors, officers, employees and agents from any liabilities, damages and costs awarded in any such claim, suit or proceeding or agreed to by Google in settlement thereof, or otherwise incurred by Google or by the Registry at Google’s direction in connection therewith. The foregoing obligations are subject to the Registry providing Google with: (a) prompt written notice of such claim, suit or proceeding, (b) exclusive control over the defense and settlement of such claim, suit or proceeding and (c) proper and full information and assistance, at Google’s expense, to settle or defend any such claim, suit or proceeding. Notwithstanding the foregoing, in no event shall Google have any obligations or liability under this Section 17.13 (Patent Indemnity) to the extent that any such claim, suit or proceeding arises out of any content, information or data provided to Google by the Registry or any Rightsholder. The Registry may, at its own expense, assist in the defense of any claim, suit or proceeding for which Google indemnifies the Registry under this Section 17.13 (Patent Indemnity) if the Registry so chooses.
17.14 No Liability for Consequential Damages. In no event will Google, a Fully Participating Library, a Cooperating Library, Plaintiffs, Class Counsel, or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Amended Settlement Agreement, whether based on breach of contract (including breach of the Security Standard or any Security Implementation Plan), tort (including negligence), or otherwise, and whether or not Google, a Fully Participating Library, a Cooperating Library, Plaintiffs, Class Counsel or the Registry has been advised of the possibility of such damage.
17.15 Notices.

(a)

Legal Notices. All notices and demands

concerning (i) any breach or alleged breach of this Amended

Settlement Agreement, (ii) any dispute under this Amended

Settlement Agreement, (iii) any exercise of audit rights under this

Amended Settlement Agreement, (iv) pricing of Institutional

Subscriptions, Consumer Purchases, additional Public Access Service

and other Revenue Models under this Amended Settlement

Agreement, (v) payment of any amounts under any provision of this

Amended Settlement Agreement, (vi) any Alternative

Accommodated Service Provider, (vii) any Third-Party Required

Library Services Provider, and (viii) any matter under Articles XI

(Preliminary Settlement Approval), XII (Class Notice Program), XIII

(Settlement Administration Program), and XIV (Final Fairness

Hearing) and Section 17.6 (Reimbursement if Terminated) shall be

sent (1) before the Effective Date, to counsel for the Author Sub-

Class, counsel for the Publisher Sub-Class, and Google’s General

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160

Counsel, and (2) after the Effective Date, to the chief executive officer of the Registry and Google’s General Counsel.

(b)

Other Notices. All other notices, demands, and

requests for which the recipient is not specified in this Amended

Settlement Agreement shall be sent (i) before the Effective Date, to

counsel for the Author Sub-Class, counsel for the Publisher Sub-

Class, and Google’s General Counsel, and (ii) after the Effective

Date, to Google’s Vice President, Content Partnerships and, until

such time as the Registry designates other counsel, to counsel for the

Author Sub-Class and counsel for the Publisher Sub-Class.

(c)

Delivery. All notices, demands and requests as

specified herein shall be in writing and shall be sent by e-mail (if

practicable) and either by overnight courier or by such other delivery

methods as provide the sender with proof of the recipient’s receipt

and actual notice or, alternatively, with respect to notices under

Section 17.15(b) (Other Notices) only, through a mode of electronic

communication agreed between Google and the Registry. Notice

shall be deemed received upon written verification from overnight

courier or such other delivery methods of the recipient’s receipt.

Contact information shall be updated in writing as necessary to

ensure that each such party has current information regarding all such

contacts. In no event shall the time period for taking any action

under this Amended Settlement Agreement be extended by reason of

Rule 6(d) of the Federal Rules of Civil Procedure.

17.16 Time Periods. All time periods set forth herein shall be computed in calendar days unless otherwise provided. In computing any period of time prescribed or allowed by this Amended Settlement Agreement or by order of the Court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be so included, unless it is a Saturday, Sunday or otherwise not a Business Day, or, when the act to be done is the filing of a paper in Court, a day on which weather or other conditions have made the office of the Clerk of the Court inaccessible, in which event the period shall run until the end of the next day that is not one of the aforementioned days.
17.17 Public Statements. Any party may make public statements about the Action, the Settlement and this Amended Settlement Agreement, including statements to the press, subject to the limitations regarding confidentiality set forth in Article XV (Confidentiality).

Amended Settlement Agreement

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17.18 Tax Consequences. No opinion or advice concerning the tax consequences of this Amended Settlement Agreement to individual members of the Amended Settlement Class is being given or will be given by Class Counsel. No representation or warranty in such regard is made by virtue of this Amended Settlement Agreement. The Notice will direct members of the Amended Settlement Class to consult their own tax advisors regarding the tax consequences of the Settlement and any tax reporting obligations they may have with respect thereto. Each such member’s tax obligations, and the determination thereof, are the sole responsibility of such member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual member of the Amended Settlement Class.
17.19 Destruction. Within thirty (30) days after the Effective Date, counsel for the Author Sub-Class, counsel for the Publisher Sub-Class and counsel for Google will destroy all copies of, and erase from computer memory, all documents produced to them pursuant to the Action, except for documents that the producing party agrees in writing are necessary for the Registry and/or the claims administration process. Counsel for the Author Sub-Class and counsel for the Publisher Sub-Class will notify Google, and Google will notify counsel for the Author Sub-Class class and Counsel for the Publisher Sub-Class, that such destruction has occurred.
17.20 Attachments. All of the Attachments to this Amended Settlement Agreement are material and integral parts hereof, and are incorporated in this Amended Settlement Agreement by reference herein.
17.21 No Other Representations. Other than as set forth in this Amended Settlement Agreement and the separate Amended Settlement Agreement between the Representative Plaintiffs that represent the Publisher Sub-Class and Google in The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (DC) (which Amended Settlement Agreement is attached hereto as Attachment M (Amended Settlement Agreement Between Publishers and Google)), no party to this Amended Settlement Agreement has relied on any representation of another party in entering into this Amended Settlement Agreement.
17.22 Governing Law. This Amended Settlement Agreement, including the Author-Publisher Procedures, shall be governed by and construed in accordance with the laws of the State of New York, without reference to principles of conflicts of laws.
17.23 Court’s Continuing Jurisdiction. The Court shall retain jurisdiction over the interpretation and implementation of this Amended Settlement Agreement. Except as provided in Article IX (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Amended Settlement Agreement shall be commenced and maintained only in the Court.

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17.24 Extensions of Time. Plaintiffs and Google reserve the right, subject to the Court’s approval, to make any reasonable extensions of time that might be necessary to carry out any of the provisions of this Amended Settlement Agreement, subject to Section 7.2(f)(iv) (No Modification Without Consent).
17.25 Complete Defense. This Amended Settlement Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding that may be instituted, prosecuted, maintained, or attempted in breach of this Amended Settlement Agreement.
17.26 Entire Agreement. This Amended Settlement Agreement, including all of the Attachments hereto, together with the letter agreement referred to in Section 13.2(c)(iii)(1)(A), contain the entire, complete, and integrated statement of each and every term and provision agreed to by and among Plaintiffs and Google; set forth the entire agreement among Plaintiffs and Google with respect to their subject matter; and are not subject to any condition not provided for in this Amended Settlement Agreement. Plaintiffs and Google shall not, in any proceeding or otherwise, use or refer to any parol evidence with regard to the interpretation or meaning of this Amended Settlement Agreement.
17.27 Amendments. Prior to the Final Approval Date, Plaintiffs and Google may, by written agreement, amend this Amended Settlement Agreement, subject to Court approval. At any time on or after the Final Approval Date but prior to the Effective Date, Plaintiffs and Google may, by written agreement, amend this Amended Settlement Agreement, without notice to or approval of the Court, only if such amendment is not materially inconsistent with the Court’s Final Judgment and Order of Dismissal and does not impair the rights of the Amended Settlement Class under this Amended Settlement Agreement. After the Effective Date, the Registry and Google may, by written agreement, amend this Amended Settlement Agreement, without notice to or approval of the Court, only if such amendment does not impair the rights of the Amended Settlement Class under this Amended Settlement Agreement. This Section 17.27 (Amendments) is subject to any approvals of any Fully Participating Libraries and any Cooperating Libraries required by Section 7.2(f)(iv) (No Modification Without Consent).
17.28 No Party Is the Drafter. Neither Google nor any of the Plaintiffs shall be considered the drafter of this Amended Settlement Agreement or any provisions hereof for the purpose of any statute, case law or rule of interpretation or construction that might cause any provision to be construed against the drafter hereof.
17.29 No Prevailing Party. Neither Google nor any of the Plaintiffs is a “prevailing party” in the Action.
17.30 Assignment. Google Inc. may assign its rights and delegate its duties under this Amended Settlement Agreement to a division or an Affiliate of Google Inc.,

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provided that such division or Affiliate agrees to be bound by all of the terms hereof and, provided further, Google Inc. may assign this Amended Settlement Agreement without consent to a successor-in-interest in connection with a merger or the sale of all or substantially all of its assets to which this Amended Settlement Agreement relates. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Amended Settlement Agreement shall be binding upon the heirs, successors, and permitted assigns of each of Plaintiffs, of Rightsholders and of Google.

17.31 Counterparts. This Amended Settlement Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a party.

17.32 Interpretation. In this Amended Settlement Agreement, except as otherwise provided,

(a)

the headings in this Amended Settlement

Agreement are inserted for convenience only and do not form a part

of this Amended Settlement Agreement and are not intended to

interpret, define or limit the scope, extent or intent of this Amended

Settlement Agreement or any provision hereof;

(b)

the terms “include,” “including,” “such as,” and

“e.g.,” when following any general statement or term, are not to be

construed as limiting the general statement or term to the specific

items or matters set forth, but rather as permitting the general

statement or term to refer to all other items or matters that could

reasonably fall therein;

(c)

where in this Amended Settlement Agreement,

Rightsholders are deemed to have authorized Google or a Fully

Participating Library to make a specified use of Books or Inserts in

specified ways, such authorization includes:

(i)

the right to reproduce, distribute, display, and make

technical adaptations to (but not to adapt or alter the content of) such Books

or Inserts for the purposes of making, and to the extent reasonably required

to make, such authorized use, using any means and any technology, whether

now known or hereafter devised; and

(ii)

use of a Book without (1) its Inserts or any portions that

have been excluded by any Insert Rightsholder or the Book Rightsholder,

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164

and pages of the Book on which such Inserts or portions appear, (2) Inserts of a member of the Amended Settlement Class who has opted out of the Settlement and (3) other Expression in that Book that is not an Insert, e.g., because it is an image;

(d)

all accounting terms not otherwise defined herein

have the meanings assigned to them by, and all calculations to be

made hereunder are to be made in accordance with, United States

generally accepted accounting principles, as applied on a consistent

basis; and

(e)

a reference to a required agreement, approval,

authorization or consent means written agreement, approval,

authorization or consent, as the case may be.

17.33 Effect of Opt-Out. If all of the members of the Amended Settlement Class who have a Copyright Interest in a particular Book or Insert opt out of the Settlement by the Supplemental Opt-Out Deadline, then neither this Amended Settlement Agreement nor any Library-Registry Agreement authorizes or prohibits the use of such Book or Insert, no Claims with respect to such Book or Insert are released by this Amended Settlement Agreement or the Final Judgment and Order of Dismissal or any LibraryRegistry Agreement, and this Amended Settlement Agreement will, after the Supplemental Opt-Out Deadline, no longer apply to such Book or Insert.
17.34 Compliance with Law. Notwithstanding any other provision of this Amended Settlement Agreement, nothing in this Amended Settlement Agreement requires Google, a Rightsholder, a Participating Library, the Registry or any Plaintiff to take any action that would violate any applicable law and none of them shall be held to have breached this Amended Settlement Agreement by omitting to take any action that, if taken, would violate any applicable law.
This Amended Settlement Agreement is dated November 13, 2009.

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Attachments: A—Procedures Governing Author Sub-Class and Publisher Sub-Class Under the Amended Settlement Agreement B—Form of Library-Registry Agreements
B-1—Form of Library-Registry (Fully Participating) Agreement B-2—Form of Library-Registry (Cooperating) Agreement B-3—Form of Library-Registry (Public Domain) Agreement C—Plan of Allocation D—Security Standard E—Public Domain F—Preview Uses G—Approved Libraries H—[Proposed] Order Granting Preliminary Settlement Approval I—Notice of Class Action Settlement J—Summary Notice of Class Action Settlement K—Paid Media Schedule L—[Proposed] Final Judgment and Order of Dismissal
Amended Settlement Agreement

M—Amended Settlement Agreement Between Publishers and Google N – Supplemental Notice
Amended Settlement Agreement

 
 .

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Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 1 of 14

SANFORD P. DUMAIN (SD-8712) MILBERG WEISS BERSHAD
& SCHULMAN LLP One Pennsylvania Plaza New York, NY 10119-0165 Telephone: (212) 594-5300 Facsimile: (212) 868-1229

MICHAELJ. BONI

KATE REZNICK

KOHN SWIFT & GRAF, P.e. One South Broad Street, Suite 2100

5

Philadelphia, PA 19107

Telephone: (215) 238-1700

136

Facsimile: (215) 238-1968
Counsel for Plaintiffs
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

oIE (c IE 0WIlE -:"I
n ~ SEP 20 2005

I

...J

U.S.D.C. S.D. N.Y.

CASHIERS

The Author's Guild, Associational Plaintiff,

Herbert Mitgang, Betty Miles and Daniel Hoffinan, :

Individually And On Behalf Of All Others Similarly:

Situated,

CLASS ACTION COMPLAINT

Plaintiffs,

v.

JURY TRIAL DEMANDED

Google Inc.,

Defendant.

•

"

Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 2 of 14

Plaintiffs, by their attorneys, allege as follows: NATURE OF THE ACTION
1. Plaintiffs are published authors and The Authors Guild, the nation's largest organization of book authors, which has as its primary purpose to advocate for and support the copyright and contractual interests of published writers. The authors' works are contained in certain public and university libraries, and have not been licensed for commercial use.
2. Defendant Google Inc. ("Google") owns and operates a major Internet search engine that, among other things, provides access to commercial and other sites on the Internet. Google has contracted with several public and university libraries to create digital "archives" of the libraries' collections of books, including that of the University of Michigan library. As part of the consideration for creating digital copies ofthese collections, the agreement entitles Google to reproduce and retain for its own commercial use a digital copy ofthe libraries' archives.
3. By reproducing for itself a copy of those works that are not in the public domain (the "Works"), Google is engaging in massive copyright infringement. It has infringed, and continues to infringe, the electronic rights of the copyright holders of those works.
4. Google has announced plans to reproduce the Works for use on its website in order to attract visitors to its web site and generate advertising revenue thereby.
5. Google knew or should have known that the Copyright Act, 17 U.S.C. § 101 et seq. ("the Act") required it to obtain authorization from the holders of the copyrights in these literary works before creating and reproducing digital copies of the Works for its own
2

Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 3 of 14
commercial use and for the use of others. Despite this knowledge, Google has unlawfully reproduced the Works and has announced plans to reproduce and display the Works without the copyright holders' authorization. Google intends to derive revenue from this program by attracting more viewers and advertisers to its site.
6. By this action, plaintiffs, on behalf of themselves and all others similarly situated, seek damages, injunctive and declaratory relief with respect to Google's present infringement, and declaratory and injunctive relief with respect to Google's planned unauthorized commercial use of the Works.
JURISDICTION AND VENUE 7. This copyright infringement action arises under 17 V.S.c. § 101 et seq. This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question), and 28 U.S.c. § 1338 (acts of Congress related to copyright). 8. Venue is proper in this district pursuant to 28 U.S.c. §§ 1391 (b) and 1400(a) because one of the named plaintiffs resides in this district and because defendant conducts business in this district.
PARTIES THE NAMED PLAINTIFFS 9. The individual plaintiffs ("Named Plaintiffs") are published, professional authors who created literary works for which the copyrights have been registered with the United States Copyright Office. 10. Plaintiff Herbert Mitgang ("Mitgang") is a published author of numerous nonfiction books, novels and plays. Mr. Mitgang resides in New York, New York. He is the
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Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 4 of 14
holder of the copyright in the published works The Fiery Trial: A Life of Lincoln (registration number A536977) published by Viking Press, and other works contained in the library ofthe University of Michigan.
11. PlaintiffBetty Miles ("Miles") resides in Shelburne, Vermont. She is the author of several works of children's and young adult fiction and is a holder of copyright in the work Just Think (registration number A330604), published by Alfred A. Knopf. This work is contained in the library ofthe University of Michigan.
12. Plaintiff Daniel Hoffman ("Hoffinan") resides in Swarthmore, Pennsylvania. He is the author and editor of many volumes ofpoetry, translation, and literary criticism, and of a memoir. He is the holder of copyright in the works Barbarous knowledge: Myth in the Poetry of Yeats, Graves, and Muir (registration number A896931 and registration renewal number RE-696-986) and Striking the Stones (registration number on A985815 and registration renewal number RE-730-198), both published by Oxford University Press. These works are contained in the library of the University of Michigan.
13. The Named Plaintiffs are the exclusive owners ofthe copyrights for their Works listed above. None of the Named Plaintiffs has authorized Google to reproduce his or her Works or to display, sell and/or distribute such Works on its website or anywhere else.
ASSOCIATIONAL PLAINTIFF 14. Plaintiff The Authors Guild, Inc. ("the Guild") is a not-for-profit corporation organized under New York law and having its place of business at 31 East 28th Street, New York, New York. The Guild and its predecessor organization, the Authors League of America ("the League"), have been leading advocates for authors' copyright and contractual
4

Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 5 of 14
interests since the League's founding in 1912. The Guild, representing more than 8,000 published authors, is the nation's largest organization of authors. The activities of the Guild include reviewing members' publishing and agency contracts; intervening in disputes involving authors' rights; providing advice to members regarding developments in the law and in the publishing industry that affect their rights; and supporting legislation in matters affecting copyright, freedom of expression, taxation and other issues affecting professional writers.
15. The Guild has associational standing to pursue claims for injunctive and declaratory relief on behalf of its members. The member authors would have standing to sue in their own right. The protection of authors' copyrights is germane, indeed central, to the purpose of the Guild. Individual participation of the authors is not required to determine whether Google's copying and planned display of the authors' copyrighted works for commercial use is in violation of the Act and to provide injunctive and declaratory relief to the Guild and the authors.
DEFENDANT 16. Google is a Delaware corporation with its principal place of business located in Mountain View, California. Google owns and operates the largest Internet search engine in the United States, which contains links to more than eight billion commercial and noncommercial Internet pages. Its search engine is available free of charge to Internet users, and is supported in large part by commercial entities' purchase of advertising space on the site. 17. Google posted revenues of more than $3 billion in 2004 and has posted revenues of over $2.6 billion for the first two quarters of2005. Advertising revenue makes up approximately 98% of Google's earnings.
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Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 6 of 14

18. Google made an Initial Public Offering of its stock on August 19,2004. Google's stock has increased more than 350% in value from its opening price of$85 per share to its current trading price of more than $300 per share.
19. Late last year GoogJe announced the launch of a project it calls the Library Project, which is part of a service it calls Google Print. GoogJe Print is designed to allow users to search the text of books online. The digital archiving of the Works that are the subject ofthis lawsuit was undertaken by Google as part of its Google Print Library Project.
CLASS ALLEGATIONS 20. The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan. Excluded from the Class are (a) defendant and any entity in which any defendant has a controlling interest; (b) the employees, officers and directors of those identified in subparagraph (a); and (c) the heirs, successors, assigns and legal representatives of the persons identified in subparagraph (b) above. 21. This action has been brought and may properly be maintained as a Class Action pursuant to Rules 23(b)(2) and (b)(3) ofthe Federal Rules of Civil Procedure. 22. Numerosity ofthe Class - Fed. R. Civ. Proc. 23(a)(1): The persons and/or entities in the Class are so numerous that their joinder is impractical, and the disposition oftheir claims in a class action rather than in individual actions will benefit the parties and the Court. The exact number of members of the Class is not known to plaintiffs, but plaintiffs reasonably estimate that there are at least thousands of class members.
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23. Existence and Predominance of Common Question of Law and Fact - Fed.

R. Civ. Proc. 23(a)(2) & 23(b)(3): There is a well-defmed community of interest in the questions

of law and fact involved affecting the Class. Questions of law and fact common to the Class

include, but are not limited to, the following:

a. Whether Google reproduced for its own commercial use copies of

the Works from the University of Michigan library;

b. Whether the reproduction by Google of such copies constitutes

copyright infringement;

c. Whether Google's announced plan to display the Warks on its

commercial website Google Print infringes the copyrights ofthe Named Plaintiffs and the Class;

d. Whether Google acted willfully with respect to the acts complained

of herein;

e. Whether the Named Plaintiffs and the Class have sustained

damages and, if so, the proper measure of such damages;

f

Whether injunctive relief is appropriate.

These questions of law and fact predominate over questions that affect only individual

Class members.

24. Typicality - Fed. R. Civ. Proc. 23(a)(3): The claims ofthe Named

Plaintiffs are typical of those ofthe Class. The Named Plaintiffs own copyrights in literary

works that have been copied by Google without authorization. The claims of the Named

Plaintiffs and all members of the Class depend on a showing ofthe acts of Google complained of

herein. 7

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25. Adequacy of Representation - Fed. R. Civ. Proc. 23(a)(4): Plaintiffs are adequate representatives of the Class and will fairly and adequately protect the interests of the Class. Plaintiffs' interests do not in any way conflict with the interests ofthe members ofthe Class that they seek to represent. Plaintiffs are committed to the vigorous prosecution of this action and have retained competent counsel experienced in complex class action litigation and experienced in copyright actions to represent them.
26. Injunctive Relief- Fed. R. Civ. Proc. 23(b)(2): Google has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive reliefwith respect to the Class as a whole.
27. Superioritv- Fed. R. Civ. Proc. 23(b)(3): A class action is the best available method for the fair and efficient adjudication of this controversy. Since the damages suffered by individual class members, while not inconsequential, may be relatively small, the expense and burden of individual litigation make it impractical for members of the Class to seek redress individually for the wrongful conduct alleged herein. Should separate actions be required to be brought by each individual member ofthe Class, the resulting multiplicity of lawsuits would cause undue hardship and expense on the Court and the litigants. A class action is therefore the best method to assure that the wrongful conduct alleged herein is remedied, and that there is a fair, efficient, and full adjudication of this controversy. Plaintiffs anticipate no undue difficulty in the management ofthis litigation as a class action.
GENERAL ALLEGATIONS 28. Google is in the business of providing Internet search services to the public. It derives approximately 98% of its revenues directly from the sale of advertising, and
8

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would likely be unable to offer its search engine and other services to the public free of charge without a continued stream of advertising revenues.
29. On December 14,2004, Google announced in a press release that it has entered into agreements with four university libraries and one public library to "digitally scan books from their collections so that users worldwide can search them in Google." According to Google's release, this is to be an "expansion ofthe Google Print program, which assists publishers in making books and other offline information searchable online. Google is now working with libraries to digitally scan books from their collections, and over time will integrate this content into the Google index, to make it searchable for users worldwide." Google's press release also claimed that it would make "brief excerpts" of copyrighted material available but that its use of these works would comport with copyright law.
30. Google plans to use the Works from the library ofthe University of Michigan in order to attract visitors and, thereby, advertisers, to its website
31. Google has already copied some of the Works in the University of Michigan library and has announced that it will soon resume copying the Works as part of its contractual relationship with the University. hI so doing, Google has reproduced a digital copy of the Works without the copyright holders' permission and in violation ofthe authors' rights under the copyright laws. Google has also announced plans to display the Works on its commercial website, Google.com.
32. Further, Google has announced plans to include in its Google Library Project the literary works contained in four other libraries: Harvard University, Stanford
9

Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 10 of 14
University, Oxford University and the New York Public Library. Google intends to copy these Works without seeking authority from the copyright owners.
33. Google continues to reproduce digitized copies of Plaintiffs , and the Class's Works without their authorization. Google continues to plan to display the Works on its website for the commercial purposes detailed above.
34. Google's acts have caused, and unless restrained, will continue to cause damages and irreparable injury to the Named Plaintiffs and the Class through:
a. continued copyright infringement of the Works and/or the effectuation ofnew and further infringements;
b. depreciation in the value and ability to license and sell their Works; c. lost profits and/or opportunities; and d. damage to their goodwill and reputation. 35. Google acted willfully or knew or should have known that its actions constitute infringement. 36. The Named Plaintiffs and members ofthe Class have suffered damages and/or are in imminent danger of suffering further damages from Google's unlawful practices.
COUNT ONE - Copyright Infringement (by Named Plaintiffs Only)
37. The Named Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs.
38. The Named Plaintiffs and the Class own a valid copyright in and to at least one Work that has been copied by Google. They, not Google, have the exclusive rights to,
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Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 11 of 14
among other things, reproduce their Works, distribute copies of their Works to the public, display their Works, and to authorize such reproduction, distribution and display of their Works.
39. Google has made and reproduced for its own commercial use a copy of some of the literary works contained in the University ofMichigan library, which contains the Works that are the subject of this action, and intends to copy most of the literary works in the collection of that library.
40. Google's conduct is in violation ofthe copyrights held by the Named Plaintiffs and other members ofthe Class.
41. Google's infiingement of the copyrights of the Works was willful. 42. As a result of Google's acts of copyright infringement and the foregoing allegations, the Named Plaintiffs and the Class have suffered damages.
COUNT TWO - Injunctive Relief (by All Plaintiffs)
43. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs.
44. Google has already begun reproducing Works contained in the library of the University of Michigan. In addition, Google has announced plans to expand its Google Library Project to include the libraries ofHarvard, Oxford, Stanford, and the New York Public Library.
45. Google has also announced plans to launch a program by which it will place the unlawfully copied Works from the University of Michigan and the other libraries on its website Google Press, in order to generate consumer traffic and advertising revenues.
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46. Google's planned imminent commercial use of the Works would constitute additional wholesale copyright infringement.
47. Unless enjoined from doing so, Google's planned imminent commercial use of the Works will cause the plaintiffs and the Class irreparable harm by depriving them of both the right to control the reproduction and/or distribution oftheir copyrighted Works and to receive revenue therefrom.
48. Plaintiffs and the Class are likely to succeed on the merits of their copyright infringement claim because Google's existing and planned use ofthe Works does not fall within any of the statutory exceptions to copyright infringement and is in violation of the copyright laws.
49. The balance of hardships tips in favor of plaintiffs and the Class, because Google's massive earnings will not be severely damaged by its inability to create a new stream of advertising revenues and because other comprehensive electronic literary databases exist for public use.
50. Plaintiffs are therefore entitled to an injunction barring Google from continued infringement ofthe copyrights ofthe Named Plaintiffs and the Class, and other equitable relief as more fully set forth in the Prayer for Relief.
COUNT III - Declaratory Relief (by All Plaintiffs)
51. Plaintiffs reallege and incorporate by reference as if fully set forth herein the allegations contained in all preceding paragraphs.
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52. An actual controversy exists between The Authors Guild, the Named Plaintiffs and the Class on one hand, and Google on the other hand, by reason of Google's announced present and continuing infringement ofthe Named Plaintiffs' and the Class's copyrights, and announcement that it will not cease and desist from, or remedy, its wholesale infringement of the Works.
53. Plaintiffs are entitled to a judgment declaring that Google's actions are unlawful and, specifically, that Google infringed and continues to infringe the Named Plaintiffs' and the Class's copyrights in violation of the Copyright Act.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for relief and that judgment be entered against defendant as follows:
A. For certification of the Class; B. For an award of statutory damages, plaintiffs' actual damages, and/or defendant's profits; C. For an injunction (a) barring Google from continued infringement ofthe copyrights of the Named Plaintiffs and the Class, and/or (b) other equitable relief to redress any continuing violations of the Act; D. For (a) permanent injunctive and declaratory relief barring Google from continued infringement of the copyrights ofthe Named Plaintiffs and the Class, and/or (b) other equitable relief to redress any continuing violations of the Act; E. For costs and attorneys' fees; and F. For such other and further relief as the Court finds just and proper.
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Case 1:05-cv-08136-DC Document 1 Filed 09/20/05 Page 14 of 14

DEMAND FOR JURY TRIAL

Plaintiffs, as provided by Rule 38 ofthe Federal Rules of Civil Procedure, request

trial by jury in the above-captioned matter.

Dated: September 20, 2005 New York, New York

MILBERG WEISS BERSHAD & SCHULMAN LLP
BY.~ Sanford P. umain (SD-8712) One Pennsylvania Plaza New York, NY 10119-0165 Telephone: (212) 594-5300 Facsimile: (212) 868-1229

KaHN, SWIFT & GRAF, P.e. Michael J. Boni . Kate Reznick One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 Facsimile: (215) 238-1968

Counsel For Plaintiffs

14

 
 Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 1 of 323

Michael J. Boni, Esq. Joanne Zack, Esq. BONI & ZACK LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------x

The Authors Guild, Inc., Association of American

:

Publishers, Inc., et al.,

:

:

Plaintiffs,

:

:

v.

:

:

Google Inc.,

:

:

Defendant.

:

------------------------------------------------------------------------x

Case No. 05 CV 8136-JES
FILED ELECTRONICALLY

DECLARATION OF MICHAEL J. BONI IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY SETTLEMENT APPROVAL

Michael J. Boni hereby declares as follows:

1. I am a member of the law firm Boni & Zack LLC, one of the Class

Counsel in this action, and am admitted to the bar of this Court pro hac vice. This

declaration is submitted in support of Plaintiffs’ Motion for Preliminary Settlement

Approval.

2. Two actions pending before this Court were coordinated for discovery and

other related purposes soon after their filing: (a) The Authors Guild, Inc., et al. v. Google

Inc., No. 05 CV 8136 and (b) The McGraw-Hill Companies, Inc., et al. v. Google Inc.,

No. 05 CV 8881. Both actions are being settled, as explained in more detail in the

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 2 of 323

accompanying Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Settlement Approval, as part of the resolution of the Authors Guild class action.
3. Attached as Exhibit 1 is a true and correct copy of the Settlement Agreement among (a) The Authors Guild, Inc., Herbert Mitgang, Betty Miles, Daniel Hoffman, Paul Dickson and Joseph Goulden; (b) The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc., and Association of American Publishers, Inc.; and (c) Google Inc., executed on October 28, 2008.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New York October 28, 2008

/s/ Michael J. Boni Michael J. Boni

2

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 3 of 323 EXHIBIT 1

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 4 of 323

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------x

The Authors Guild, Inc., Association of American

:

Publishers, Inc., et al.,

:

:

Plaintiffs,

:

:

v.

:

:

Google Inc.,

:

:

Defendant.

:

------------------------------------------------------------------------x

Case No. 05 CV 8136-JES
SETTLEMENT AGREEMENT

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 5 of 323

TABLE OF CONTENTS

Page

ARTICLE I — DEFINITIONS ...........................................................................................2
ARTICLE II — SETTLEMENT BENEFITS – OVERVIEW AND AUTHORIZATIONS ......................................................................................19
2.1 Benefits to the Settlement Class – Overview.....................................................19 2.2 Authorization of Google, Fully Participating Libraries and Cooperating
Libraries .............................................................................................................20 2.3 Author-Publisher Procedures.............................................................................21 2.4 Non-Exclusivity of Authorizations....................................................................21
ARTICLE III — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND OBLIGATIONS...............................................................................................21
3.1 Digitization, Identification and Use of Books. ..................................................21 3.2 Initial Display and No Display Book Classification..........................................23 3.3 Display Books....................................................................................................27 3.4 No Display Books..............................................................................................28 3.5 Right to Remove or Exclude..............................................................................28 3.6 Technical Adaptations .......................................................................................34 3.7 Contemplated Rightsholder Services.................................................................34 3.8 Effect of Other Agreements and Changes in Law. ............................................37 3.9 Distribution Arrangements ................................................................................37 3.10 Specific Prohibitions..........................................................................................38 3.11 Hosted Version for Rightsholders......................................................................40 3.12 Use of Digital Copies.........................................................................................40 3.13 Communication of Rightsholder Directions to Google .....................................40 3.14 Advertising Uses................................................................................................41 3.15 Extent of Rights and Authorizations..................................................................41
ARTICLE IV — ECONOMIC TERMS FOR GOOGLE’S USE OF BOOKS.................41 4.1 Institutional Subscriptions. ................................................................................41 4.2 Consumer Purchases. .........................................................................................48 4.3 Preview Uses......................................................................................................51 4.4 Advertising Revenue Model ..............................................................................56 4.5 Standard Revenue Splits and Discounting.........................................................56 4.6 Payment Terms. .................................................................................................58 4.7 New Revenue Models........................................................................................59 4.8 Public Access Service........................................................................................60 4.9 Economic Terms Renegotiation.........................................................................61
ARTICLE V — OTHER SETTLEMENT BENEFITS .....................................................61 5.1 Cash Payment to Class Members Whose Books and Inserts Have Been Digitized.............................................................................................................61

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TABLE OF CONTENTS (continued)

Page

5.2 Payment For Registry, Notice and Claims Administration ...............................62 5.3 Timing of Payments under Sections 5.1 and 5.2. ..............................................62 5.4 Plan of Allocation ..............................................................................................64 5.5 Attorneys’ Fees ..................................................................................................64

ARTICLE VI — ESTABLISHMENT AND CHARTER OF REGISTRY.......................65 6.1 Functions............................................................................................................65 6.2 Charter. ..............................................................................................................65 6.3 Unclaimed Funds and Public Domain Funds. ...................................................66 6.4 Funding and Technical Assistance ....................................................................68 6.5 Google’s Rights to Registry Data. .....................................................................68 6.6 Exchange of Data between Google and the Registry. .......................................69 6.7 Authorization of Registry ..................................................................................71

ARTICLE VII — FULLY PARTICIPATING LIBRARY AND COOPERATING LIBRARY RIGHTS AND OBLIGATIONS ...................................................72
7.1 Becoming a Fully Participating Library or a Cooperating Library ...................72 7.2 Fully Participating Library Uses........................................................................72 7.3 Google’s Obligations. ........................................................................................89 7.4 Fully Participating Libraries’ and Cooperating Libraries’ Exercise of
Collective Rights................................................................................................89 7.5 Meetings to Discuss Library Uses. ....................................................................92 7.6 When Fully Participating Libraries, Cooperating Libraries and Public
Domain Libraries are Bound..............................................................................93

ARTICLE VIII — SECURITY AND BREACH ..............................................................93 8.1 Obligations of Google, the Fully Participating Libraries and the Host Sites....................................................................................................................93 8.2 Security Standard, Security Implementation Plan and Security Audits. ...........94 8.3 Breaches – General Principles. ..........................................................................97 8.4 Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access...............................100 8.5 Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site..................101 8.6 Remedies for Security Violations by Third Parties .........................................103 8.7 Adjustments to Liability Ranges and Caps......................................................105

ARTICLE IX — DISPUTE RESOLUTION...................................................................105 9.1 Arbitration of Disputes and Exceptions...........................................................105 9.2 Executive Escalation........................................................................................106 9.3 Arbitration........................................................................................................106 9.4 Notice to Rightsholders ...................................................................................108 9.5 Notice to Registry; Consolidation....................................................................108

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TABLE OF CONTENTS (continued)

Page

9.6 Precedential Effect ...........................................................................................108 9.7 Decision ...........................................................................................................108 9.8 Confidentiality .................................................................................................108 9.9 Fees and Costs .................................................................................................109 9.10 Joinder..............................................................................................................109 9.11 Injunctive Relief ..............................................................................................109 9.12 Continuing Jurisdiction....................................................................................109

ARTICLE X — RELEASES ...........................................................................................109 10.1 Definitions. ......................................................................................................109 10.2 Releases. ..........................................................................................................113

ARTICLE XI — PRELIMINARY SETTLEMENT APPROVAL .................................117

ARTICLE XII — CLASS NOTICE PROGRAM ...........................................................117

ARTICLE XIII — SETTLEMENT ADMINISTRATION PROGRAM.........................118 13.1 Registration and Completing Claims...............................................................118 13.2 Validating and Challenging Claims.................................................................120 13.3 Time for Filing Deadline for Registration/Claim Forms .................................122 13.4 Registry Determination of Rightsholder..........................................................122 13.5 Final Report Regarding Cash Payments. .........................................................123 13.6 No Liability For Settlement or Registry Administration .................................123

ARTICLE XIV — FINAL FAIRNESS HEARING........................................................124

ARTICLE XV — CONFIDENTIALITY........................................................................124 15.1 Confidential Information .................................................................................124 15.2 Obligations.......................................................................................................124 15.3 Confidentiality of Rightsholder Information ...................................................124 15.4 Disclosures Required by Law ..........................................................................125

ARTICLE XVI — RIGHT TO TERMINATE AGREEMENT ......................................125

ARTICLE XVII — MISCELLANEOUS PROVISIONS ...............................................125 17.1 Good Faith Efforts ...........................................................................................125 17.2 Plaintiffs’ Participation in Settlement..............................................................126 17.3 Final if Not Terminated ...................................................................................126 17.4 Dismissal of Action .........................................................................................126 17.5 Effect of Termination.......................................................................................126 17.6 Reimbursement if Terminated .........................................................................126 17.7 Jurisdiction.......................................................................................................127 17.8 Contact with Rightsholders..............................................................................127 17.9 Separate Agreements with Settlement Class Members ...................................127

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TABLE OF CONTENTS (continued)

Page

17.10 Scan Quality.....................................................................................................128 17.11 Use of Contractors ...........................................................................................128 17.12 Effect of Right to Exclude ...............................................................................128 17.13 Patent Indemnity ..............................................................................................129 17.14 No Liability for Consequential Damages ........................................................129 17.15 Notices. ............................................................................................................130 17.16 Time Periods ....................................................................................................130 17.17 Public Statements.............................................................................................131 17.18 Tax Consequences ...........................................................................................131 17.19 Destruction.......................................................................................................131 17.20 Attachments .....................................................................................................131 17.21 No Other Representations................................................................................131 17.22 Governing Law ................................................................................................131 17.23 Court’s Continuing Jurisdiction.......................................................................131 17.24 Extensions of Time ..........................................................................................132 17.25 Complete Defense............................................................................................132 17.26 Entire Agreement .............................................................................................132 17.27 Amendments ....................................................................................................132 17.28 No Party Is the Drafter.....................................................................................132 17.29 No Prevailing Party..........................................................................................132 17.30 Assignment ......................................................................................................133 17.31 Counterparts.....................................................................................................133 17.32 Interpretation....................................................................................................133 17.33 Effect of Opt-Out .............................................................................................134 17.34 Compliance with Law......................................................................................134

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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 9 of 323
SETTLEMENT AGREEMENT
WHEREAS, Plaintiffs, individually and on behalf of the Settlement Class, have alleged that Defendant Google Inc. has violated the copyright laws of the United States; and
WHEREAS, Google believes that its conduct was lawful at all times in all respects, and has not admitted any of the allegations of copyright infringement in the complaint or amended complaints filed by Plaintiffs in the Action; and
WHEREAS, certain libraries have granted Google access to their collections with the intention of providing great benefits to researchers and the reading public, and those libraries believe that their conduct was lawful at all times and in all respects; and
WHEREAS, Class Counsel have conducted a thorough investigation into the facts and issues raised in the Action; and
WHEREAS, Class Counsel, while continuing to believe that the claims asserted in the Action have substantial merit, have also weighed the benefits of a possible settlement against the possible outcomes, risks, and delay of continued litigation, including the likelihood of appeals from rulings on the merits in favor of either Plaintiffs or Google; and
WHEREAS, Plaintiffs and Google, in consideration of all of the circumstances and after prolonged and adversarial arms’ length settlement negotiations, wish to settle and finally resolve all actual and potential claims pertaining to the matters asserted in the Action; and
WHEREAS, Plaintiffs and Class Counsel conclude that this Settlement Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class in light of the risks inherent in prosecuting the Action and the benefits obtained under this Settlement Agreement; and
WHEREAS, Plaintiffs and Google further conclude that the Settlement will be of great benefit to copyright owners (including authors and publishers) and to libraries, researchers, and the reading public; and
WHEREAS, Google has agreed to enter into this Settlement Agreement to conclude finally and definitively all claims brought in the Action and to reduce further expense, inconvenience, and the distraction of burdensome and protracted litigation, notwithstanding that Google does not admit any wrongdoing alleged in the Action; and
WHEREAS, Plaintiffs and Google agree to seek certification of the Settlement Class only for settlement purposes.
Settlement Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 10 of 323
NOW, THEREFORE, it is agreed by and among the undersigned that the claims of Plaintiffs in the Action shall be settled with Google, subject to approval of the Court as required by Rule 23(e) of the Federal Rules of Civil Procedure, on the following terms and conditions:
ARTICLE I — DEFINITIONS
As used in this Settlement Agreement and in other agreements that refer to the definitions in this Settlement Agreement, the following terms are defined as set forth below. Additional terms are defined elsewhere in this Settlement Agreement.
1.1 “Access Uses” means uses that may display Protected material from a Book or Insert to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display, Front Matter Display or Preview Uses. Institutional Subscriptions, Consumer Purchase and the Public Access Service are the only Access Uses authorized as of the Effective Date.
1.2 “Accommodated Service” has the meaning set forth in Section 7.2(g) (Accommodated Service).
1.3 “Action” means The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.).
1.4 “Additional Contemplated Rightsholder Services Provider” has the meaning set forth in Section 3.7 (Contemplated Rightsholder Services).
1.5 “Adjunct Product” has the meaning set forth in Section 4.1(a)(ix) (Adjunct Products).
1.6 “Administrative Costs” means the reasonable costs of (a) preparing and providing notice to the Settlement Class pursuant to the Class Notice Program or as otherwise ordered by the Court; (b) setting up and operating the Settlement Administration Program and the Registry; and (c) any escrow fees paid to the Depository Bank and payments to an independent third party for services and expenses in connection with administration of the Settlement Fund, including the preparation and mailing of tax forms and tax returns.
1.7 “Advertising Uses” has the meaning set forth in Section 3.14 (Advertising Uses).
1.8 “Affiliate” of an entity means any legally recognizable entity that directly or indirectly Controls, is Controlled by, or is under common Control with such first entity, where “Control” means the possession, directly or indirectly, of the power to
2
Settlement Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 11 of 323
direct or cause the direction of the management and policies, whether through the ownership of voting shares, by contract, or otherwise, for so long as such Control exists.
1.9 “Affiliate Program” has the meaning set forth in Section 4.5(b)(v) (Sale of Consumer Purchases through Affiliate Programs).
1.10 “Alternative Accommodated Service Provider” has the meaning set forth in Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider).
1.11 “Arbitrator” has the meaning set forth in Section 9.3(a) (AAA Arbitration).
1.12 “Associational Plaintiffs” means The Authors Guild, Inc. and the Association of American Publishers, Inc.
1.13 “Audited Party” has the meaning set forth in Section 8.2(c)(i) (Audited Parties).
1.14 “Author Sub-Class” means members of the Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Settlement Class who are not members of the Publisher Sub-Class.
1.15 “Author-Publisher Procedures” means the document attached hereto as Attachment A (Procedures Governing Author Sub-Class and Publisher Sub-Class Under the Settlement Agreement).
1.16 “Book” means a written or printed work that (a) if a “United States work,” as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is subject to a Copyright Interest. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than thirty-five percent (35%) of the pages contain more than fifty percent (50%) music notation and lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, or (v) Government Works. References in this Settlement Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.
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1.17 “Book Annotation” means user-generated text that is both (a) associated with the content on the page of a Book and (b) displayed on or over any web page on which a page of a Book appears.
1.18 “Books Database” has the meaning set forth in Section 3.1(b)(ii) (Books Database).
1.19 “Business Day” means any day other than Saturday, Sunday, New Year’s Day, the observance of the Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day and any other day appointed as a federal or New York state holiday.
1.20 “Cash Payment” has the meaning set forth in Section 5.1(a) (Cash Payments).
1.21 “Charter” means the certificate of incorporation and bylaws of the Registry.
1.22 “Claim” has the meaning set forth in Section 10.1(a) (Claim).
1.23 “Claim Form” has the meaning set forth in Section 13.1 (Registration and Completing Claims).
1.24 “Claimant” has the meaning set forth in Section 13.1 (Registration and Completing Claims).
1.25 “Class Counsel” means the firms of Boni & Zack LLC, Milberg LLP, and Kohn, Swift & Graf, PC, as counsel for the Author Sub-Class, and the firm of Debevoise & Plimpton LLP, as counsel for the Publisher Sub-Class.
1.26 “Class Notice Program” means the class notice program described in Article XII (Class Notice Program).
1.27 “Collection” means the Books held by a Fully Participating Library or a Cooperating Library that have been Digitized or are targeted for Digitization pursuant to a Digitization Agreement between Google and such Fully Participating Library or such Cooperating Library, which Books may be some or all of such Fully Participating Library’s or such Cooperating Library’s holdings.
1.28 “Commercially Available” means, with respect to a Book, that the Rightsholder of such Book, or such Rightsholder’s designated agent, is, at the time in question, offering the Book (other than as derived from a Library Scan) for sale new through one or more then-customary channels of trade in the United States.
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1.29 “Competent Authority” means an individual who is employed in one of the professional occupations that is qualified to diagnose Print Disabilities under the federal law and regulations that govern the National Library Service for the Blind and Physically Handicapped or is licensed or otherwise certified or authorized under applicable state law or regulations to diagnose the existence of a Print Disability pursuant to standard and generally accepted methods of clinical evaluation.
1.30 “Confidential Information” has the meaning set forth in Section 15.1 (Confidential Information).
1.31 “Consumer Price Index” has the meaning set forth in Section 8.2(c)(iii) (Adjustment to Audit Costs).
1.32 “Consumer Purchase” and “Consumer Purchases” mean a service provided by Google that allows a user, for a fee, to access and view Online the full contents of a Display Book, as specified in and subject to Section 4.2 (Consumer Purchases).
1.33 “Consumer Subscription” has the meaning set forth in Section 4.7(d) (Consumer Subscription Models).
1.34 “Contemplated Rightsholder Services” means Consumer Purchases and Institutional Subscriptions.
1.35 “Continuous Preview” has the meaning set forth in Section 4.3(c)(iii) (Continuous Preview).
1.36 “Cooperating Library” means any library physically located in the United States and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry), (b) provides Books to Google for Digitization but agrees that Google will not provide to such library a Digital Copy of such Books unless otherwise authorized by the Rightsholder, (c) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by Google to such library or that such library receives from Google in the future, and (d) enters into a Library-Registry (Cooperating) Agreement.
1.37 “Copyright Act” means the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq.
1.38 “Copyright Interest” means (a) ownership (including joint ownership) of a United States copyright interest or (b) an exclusive license of a United States copyright
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interest, in each case only if and to the extent the interest is implicated by a use that is authorized or for which compensation could be payable under this Settlement Agreement.
1.39 “Coupling Requirement” has the meaning set forth in Section 3.5(b)(iii) (Coupling Requirement).
1.40 “Court” means the U.S. District Court for the Southern District of New York.
1.41 “Decision” has the meaning set forth in Section 9.7 (Decision).
1.42 “Depository Bank” means Citizens Bank.
1.43 “Designated Representative” means a Person designated from time to time by the Fully Participating Libraries and the Cooperating Libraries pursuant to Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement and Attachment 1 to Exhibit C of the Library-Registry (Cooperating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) to convey to Google and/or the Registry, as applicable, instructions, decisions and positions of the Fully Participating Libraries and the Cooperating Libraries, or only the Fully Participating Libraries, as the case may be, on matters to which Section 7.4(a) (Designated Representative and Security Representatives) of this Settlement Agreement refers.
1.44 “Digital Copy” of a Book or Insert means a set (or portion thereof) of electronic files created by or for Google or provided to Google in connection with GBS, including the image files of the individual pages of the Book or Insert along with text (currently generated from OCR technology), coordinate information for the text, information about the ordering of pages along with page-level metadata such as page number and other similar information, regardless of the means or technology used to prepare such copy, whether now known or hereafter developed, and any digital copy of such set of electronic files.
1.45 “Digitization Agreement” means an agreement between Google and a library to Digitize works held by that library, as such agreement may be amended from time to time.
1.46 “Digitize” means to convert a work from a hard copy (including microform) format into an electronic representation, using any means and any technology, whether now known or hereafter developed, including making necessary technical adaptations to achieve such conversion (but not including adapting or altering the content of such written work). “Digitization,” “Digitizing” and “Digitized” have corresponding meanings.
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1.47 “Display Books” means Books for which one or more Display Uses are authorized pursuant to this Settlement Agreement.
1.48 “Display Uses” means the following: Snippet Display, Front Matter Display, Access Uses and Preview Uses.
1.49 “Effective Date” means the first date upon which each and all of the following events shall have occurred: (a) the Final Approval Date has occurred; (b) the Court has entered the Final Judgment and Order of Dismissal with prejudice as to Google against Plaintiffs and all Rightsholders; and (c) the time for any appeal from the Final Judgment and Order of Dismissal in the Action and the Court’s approval of this Settlement Agreement has expired, or, if appealed, the Final Judgment and Order of Dismissal has been affirmed in its entirety by the court of last resort to which any such appeal has been taken and such affirmance has become no longer subject to further appeal or review. Neither Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into consideration in calculating the abovestated time periods.
1.50 “Entire Insert” means an Insert that is an entire work, including forewords, afterwords, introductions, entire works included in anthologies, and entire poems, short stories, song lyrics or essays.
1.51 “Expression” means either (a) Protected expression, which, in the case of text, means no fewer than three (3) contiguous words, or (b) any contiguous set of ten (10) or more words from a Book or Insert, not counting expression that is not Protected.
1.52 “Fiction” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).
1.53 “Final Approval Date” means the date the Court has certified the Settlement Class and approved this Settlement Agreement in all respects, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
1.54 “Final Fairness Hearing” has the meaning set forth in Article XIV (Final Fairness Hearing).
1.55 “Final Settlement Deposit” has the meaning set forth in Section 5.3(b) (Final Settlement Deposit).
1.56 “Fixed Preview” has the meaning set forth in Section 4.3(b)(iii) (Fixed Preview).
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1.57 “Front Matter Display” means the display to users of Google Products and Services of one or more of the title page, copyright page, table of contents, other pages that appear prior to the table of contents at the front of the Book, and indexes of a Book.
1.58 “Fully Participating Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry) and (b) enters into a Library-Registry (Fully Participating) Agreement.
1.59 “Google” means Google Inc. and its Affiliates.
1.60 “Google Book Search,” or “GBS,” means the program(s) pursuant to which Google, having Digitized works obtained pursuant to the Google Partner Program, the GLP or other means authorized by the Book’s Rightsholder or the Registry (or having obtained works in Digitized form through such programs or other means authorized by the Book’s Rightsholder or the Registry), transmits Online (a) information about such works and (b) portions of, and in some cases all of, the Digitized works, whatever such program(s) may be called by Google from time to time.
1.61 “Google Library Project” or the “GLP” means the program(s) pursuant to which Google obtains Books and other works from libraries or other sources (including through book drives, from Rightsholders directly or elsewhere, but not including the Google Partner Program), for the purposes of Digitizing them (if not obtained in Digitized form) and including them in GBS, whatever such program(s) may be called by Google from time to time.
1.62 “Google Partner Program” means the program(s) pursuant to which Persons who have Copyright Interests in works contract with Google (other than by operation of this Settlement Agreement) to grant to Google the right to include such works in GBS, whatever such program(s) may be called by Google from time to time.
1.63 “Google Products and Services” means any and all products and services offered to the public by Google directly or indirectly through third parties from time to time, now or in the future, whereby Google makes information accessible to a user Online, using any means and any technology, whether now known or hereafter developed. Google Products and Services include GBS.
1.64 “Government Works” means written or printed works covered by Section 105 of the Copyright Act or state law equivalents thereto.
1.65 “Gross Revenues” has the meaning set forth in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models).
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1.66 “Higher Education Institution” means an Institution of Higher Education, as defined by the Carnegie Classifications of Institutions of Higher Education from time to time or, if and when the Carnegie Foundation for the Classification of Teaching is no longer classifying colleges and universities in the United States, as such term or its successor term is defined by any successor classification system used to classify colleges and universities in the United States.
1.67 “Host Site” means an institution authorized under this Settlement Agreement to host the Research Corpus pursuant to the requirements of Section 7.2(d)(ii) (Host Sites).
1.68 “Host Site-Registry Agreement” has the meaning set forth in Section7.2(d)(ii) (Host Sites).
1.69 “Hosting Fully Participating Library” has the meaning set forth in Section 7.2(b)(ix)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).
1.70 “Inconsequential Breach” means a breach that (a) is not the result of reckless, willful or intentional misconduct by Google, a Host Site or a Fully Participating Library, (b) does not lead to, or present an immediate risk of, any Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, (c) does not represent an extensive or systematic failure to comply with the Security Standard or the applicable then-current Security Implementation Plan and (d) when identified, is promptly corrected or cured.
1.71 “Initial Settlement Deposit” has the meaning set forth in Section 5.3(a) (Initial Settlement Deposit).
1.72 “Insert” means the following content, if and to the extent such content is independently Protected by the Copyright Act and, if a “United States work” as defined in 17 U.S.C. § 101, is covered by a registration with the United States Copyright Office as of the Notice Commencement Date, and is either (a) contained in a Book if there is no Person who has a Copyright Interest in such content and a Copyright Interest in such Book’s Principal Work, (b) contained in a Public Domain Book, or (c) contained in a Government Work that, on or before the Notice Commencement Date, was published or distributed to the public or made available for public access: (i) text, such as forewords, afterwords, prologues, epilogues, essays, poems, quotations, letters, song lyrics, or excerpts from other Books, Periodicals or other works; (ii) children’s Book illustrations; (iii) musical notation (i.e., notes on a staff or tablature); and (iv) tables, charts and graphs. The term “Insert” does not include (1) pictorial works, such as photographs, illustrations (other than children’s Book illustrations), maps or paintings, or (2) works that are in, or as they become in, the public domain under the Copyright Act in the United States.
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1.73 “Institutional Consortium” means a group of libraries, companies, institutions or other entities located within the United States that is a member of the International Coalition of Library Consortia with the exception of Online Computer Library Center (OCLC) - affiliated networks.
1.74 “Institutional Subscription” means any service of a limited duration provided by Google to an institution for a fee that allows Online access to and viewing of the full contents of the Institutional Subscription Database, as specified in and subject to Section 4.1 (Institutional Subscriptions).
1.75 “Institutional Subscription Database” has the meaning set forth in Section 4.1(a)(v) (Versions of Institutional Subscriptions).
1.76 “ISBN” means International Standard Book Number or, if and when ISBNs are no longer being issued, the number issued pursuant to any successor system used internationally to uniquely identify books and book-like products.
1.77 “Library Building” means a building physically located in the United States that, in whole or in part, is used by a Public Library and the part so used is predominantly used for the storage of, and access to, such Public Library’s library books or library services.
1.78 “Library Digital Copy” or “LDC” means the set (or portion thereof) of all Digital Copies of Books in a Fully Participating Library’s Collection, which Digital Copies are made by copying the Library Scan (or are otherwise made pursuant to Section 7.2(a) (Making of Library Digital Copies)), and which Google provides to the Fully Participating Library.
1.79 “Library Link” means a link placed on pages in Google Book Search dedicated to a single Library Work that directs a user to existing Online sources, which, free of charge to the user (and with no out-of-pocket payments by Google to third-party providers of such sources), assists such user in finding that Library Work in a library.
1.80 “Library-Registry Agreement” means an agreement substantially similar in form to one of the agreements attached hereto as Attachment B (Form of LibraryRegistry Agreements) between the Registry and a Fully Participating Library, Cooperating Library or Public Domain Library. The Library-Registry (Fully Participating) Agreement attached hereto as Attachment B-1 is for Fully Participating Libraries. The Library-Registry (Cooperating) Agreement attached hereto as Attachment B-2 is for Cooperating Libraries. The Library-Registry (Public Domain) Agreement attached hereto as Attachment B-3 is for Public Domain Libraries.
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1.81 “Library Scan” means the Digital Copy of a Library Work Digitized by or for Google or by or for a Fully Participating Library or a Cooperating Library and received by Google, and all Digital Copies of such Digital Copy.
1.82 “Library Work” means a Book that a Fully Participating Library or a Cooperating Library makes available to Google, either in hard copy (including microform) format to be Digitized, or in a form Digitized by or for such Fully Participating Library or Cooperating Library, for the Google Library Project.
1.83 “Limited Subscription” means an Institutional Subscription offered to a library that allows the subscribing library access only to the Books Digitized from that library, or only to the Books held by that library.
1.84 “List Price” means the then-current price for Institutional Subscriptions and Consumer Purchases determined in accordance with Sections 4.1 (Institutional Subscriptions) and 4.2 (Consumer Purchases), respectively.
1.85 “Metadata” means data that describes other data (e.g., a library catalog of publications and the author, title, publisher, ISBN, and date of publication of the publications in the catalog are all types of Metadata).
1.86 “Net Advertising Revenues” means, subject to Section 4.5(b) (Discounting and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google for Advertising Uses displayed to U.S. users, less ten percent (10%) for Google’s operating costs.
1.87 “Net Purchase Revenues” means, subject to Section 4.5(b) (Discounting and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google from subscribers or purchasers within the U.S. from all Revenue Models other than Advertising Uses, less ten percent (10%) for Google’s operating costs.
1.88 “No Display Books” are Books for which no Display Uses are authorized pursuant to this Settlement Agreement.
1.89 “No Preview” has the meaning set forth in Section 4.3(b)(ii) (No Preview).
1.90 “Non-Consumptive Research” means research in which computational analysis is performed on one or more Books, but not research in which a researcher reads or displays substantial portions of a Book to understand the intellectual content presented within the Book. Categories of Non-Consumptive Research include:
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(a) Image Analysis and Text Extraction – Computational analysis of the Digitized image artifact to either improve the image (e.g., de-skewing) or extracting textual or structural information from the image (e.g., OCR).
(b) Textual Analysis and Information Extraction – Automated techniques designed to extract information to understand or develop relationships among or within Books or, more generally, in the body of literature contained within the Research Corpus. This category includes tasks such as concordance development, collocation extraction, citation extraction, automated classification, entity extraction, and natural language processing.
(c) Linguistic Analysis – Research that performs linguistic analysis over the Research Corpus to understand language, linguistic use, semantics and syntax as they evolve over time and across different genres or other classifications of Books.
(d) Automated Translation – Research on techniques for translating works from one language to another.
(e) Indexing and Search – Research on different techniques for indexing and search of textual content.
1.91 “Non-Display Uses” means uses that do not display Expression from Digital Copies of Books or Inserts to the public. By way of example, display of bibliographic information, full-text indexing without display of Expression (such as listing the number or location of search matches), geographic indexing of Books, algorithmic listings of key terms for chapters of Books, and internal research and development using Digital Copies are all Non-Display Uses.
1.92 “Not Counted Library Work” means any Library Work with respect to the Library Scan of which Google has reasonable quality, legal, or technical concerns that are not solely editorial-based concerns.
1.93 “Notice” has the meaning set forth in Article XII (Class Notice Program).
1.94 “Notice Commencement Date” means the first date of the Class Notice Program, as agreed between Plaintiffs and Google and approved by the Court.
1.95 “OCR” means optical character recognition.
1.96 “Online” means over the Internet or other data or communication network, with or without caching, through a browser or other computer program used for accessing sites or information on a network.
1.97 “Online Book Page” means any page in Google Products and Services dedicated to a single Book, including any Preview Use page, any Snippet Display page,
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any page of a Book displayed in Google Products and Services, and search results pages resulting from a search within a single Book. Any general search results page in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be a page dedicated to a single Book, even if a single Book is the sole search result of a given search on the search results page.
1.98 “Opt-Out Deadline” means the deadline fixed by the Court to opt out of the Settlement pursuant to Rule 23 of the Federal Rules of Civil Procedure.
1.99 “Other Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that has signed a Digitization Agreement with Google, but has not entered into a Library-Registry Agreement.
1.100 “Partial Insert” means an Insert other than an Entire Insert.
1.101 “Participating Libraries” means Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries and Other Libraries.
1.102 “Periodical” means a newspaper, magazine or journal and any other publication (a) that is published at a stated frequency with the intent to continue publication indefinitely; (b) whose continuity shows from issue to issue (e.g., by serialization of articles or by successive issues carrying the same style, format, theme, or subject matter); (c) whose primary purpose is to transmit information; (d) whose content consists of original or reprinted articles on one topic or many topics, listings, photographs, illustrations, graphs, a combination of advertising and nonadvertising matter, comic strips, legal notices, editorial material, cartoons, or other subject matter; and (e) for which the primary distribution of each issue is made before that of each succeeding issue.
1.103 “Person” means a natural person and any corporation, partnership, limited liability company, association, whether incorporated or not, and any other entity organized under United States federal or state law, or under foreign law.
1.104 “Plaintiffs” means Representative Plaintiffs and Associational Plaintiffs.
1.105 “Plan of Allocation” means the Plan of Allocation attached hereto as Attachment C (Plan of Allocation).
1.106 “Preview Uses” means uses that may display Protected material from a Book to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display or Front Matter Display, as specified in and subject to Section 4.3 (Preview Uses).
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1.107 “Price Change Cut Off Date” has the meaning set forth in Section 4.1(a)(viii)(2) (Registry Proposed Adjustments).
1.108 “Pricing Algorithm” has the meaning set forth in Section 4.2(b)(i)(2) Settlement Controlled Price).
1.109 “Pricing Bin” has the meaning set forth in Section 4.2(c)(i) (Pricing Bins).
1.110 “Pricing Strategy” has the meaning set forth in Section 4.1(a)(vi) (Pricing Strategy).
1.111 “Principal Work” means a Book’s principal written work. A Principal Work can be a collective work, such as a collection of short stories or plays. A Book contains only one Principal Work but may contain other text, such as a foreword, afterword and annotations. A foreign language translation or an abridged version of a Principal Work is a different Principal Work. Two (2) or more Books that contain the same Principal Work but that each contains different or additional Protected Expression are considered to be different Books. By way of example, two (2) Books that have the same Principal Work (e.g., The Old Man and the Sea) but have different forewords or additional annotations (e.g., the Hueber Verlag and the Scribner editions) are different Books under this Settlement Agreement. A hard cover Book and a soft cover Book may have the same Principal Work, but are considered different Books under this Settlement Agreement (even if they contain no additional matter) if the hard cover Book and the soft cover Book have different ISBNs.
1.112 “Print Disability” means any condition in which a user is unable to read or use standard printed material due to blindness, visual disability, physical limitations, organic dysfunction, or dyslexia.
1.113 “Prohibited Access” means reproduction or display by a Fully Participating Library or Host Site of any Digital Copy of a Book that is prohibited by the applicable Library-Registry Agreement or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.
1.114 “Protected,” when used in connection with “works,” “material,” “Expression,” or “content” means works, material, Expression or content as to which a Person has a Copyright Interest under Section 106 of the Copyright Act, without giving effect to Sections 107 through 122 of the Copyright Act.
1.115 “Public Access Service” means a service provided by Google to each Public Library and each not-for-profit Higher Education Institution that allows users to search and view the entire then-current Institutional Subscription Database, as specified in and subject to Section 4.8 (Public Access Service).
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1.116 “Public Domain Book” means a written or printed work that would be a “Book” but for the work being in the public domain under the Copyright Act in the United States, without regard to whether such work contains an Insert; provided, however, that, if the work is a “United States work” as defined in 17 U.S.C. § 101, it need not have been registered with the United States Copyright Office to be considered to be a Public Domain Book.
1.117 “Public Domain Funds” has the meaning set forth in Section 6.3(b) (Public Domain Funds).
1.118 “Public Domain Library” means a library physically located in the United States and organized as or within a not-for-profit or government entity that (a) will not provide materials to Google for Digitization when it knows that those materials are Books, (b) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by Google to such library or that such library receives from Google in the future, and (c) enters into a Library-Registry (Public Domain) Agreement.
1.119 “Public Library” means a library that (a) is accessible by the public, (b) is, or is part of, a not-for-profit or government-funded institution other than a not-for-profit or government-funded institution that is classified under the Carnegie Classification of Institutions of Higher Education, and (c) allows patrons to take books and other materials off the premises but may also have non-circulating reference collections or provide other library services; however, “Public Library” does not include any library primarily funded or managed by the federal government or an agency thereof.
1.120 “Publisher Sub-Class” means members of the Settlement Class that are (a) companies that publish books, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees.
1.121 “Qualified User” means a Person who (a) wishes to conduct NonConsumptive Research, (b) is (i) affiliated with a Fully Participating Library or a Cooperating Library or (ii) a suitably qualified individual (1) who has the resources to perform such Non-Consumptive Research, (2) who has an affiliation described below, (3) who is pre-registered by a Fully Participating Library or a Cooperating Library (i.e., registered prior to conducting Non-Consumptive Research), and (4) for whose use of the Research Corpus such Fully Participating Library or Cooperating Library takes responsibility, and (c) is bound by an agreement described in Section 7.2(d)(xi)(2) (Research Agenda). A for-profit entity may only be a “Qualified User” if both the Registry and Google give their prior written consent. Except as set forth in the preceding sentence, a Qualified User must have an affiliation with one of the following:
(a) an accredited United States two (2)- or four (4)-year college or university;
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(b) a United States not-for-profit research organization, such as a museum, observatory or research lab;
(c) a United States governmental agency (federal, state or local); or
(d) to the extent that an individual does not come within clauses (a) through (c) above in this Section 1.121 (Qualified User), an individual may become a “Qualified User” by demonstrating to a Fully Participating Library or a Cooperating Library that he or she (directly or through the entities with which he or she is affiliated) has the necessary capability and resources to conduct Non-Consumptive Research, provided that such individual (or the entities with which he or she is affiliated) may be required by the Registry to enter into other terms and conditions with respect to such Non-Consumptive Research and the commercial exploitation of any of the results thereof consistent with the restrictions set forth in this Settlement Agreement.
1.122 “Registered Rightsholder” means any Person who is a Rightsholder and who has registered with the Registry his, her or its Copyright Interest in a Book or Insert.
1.123 “Registry” means the registry established pursuant to Article ARTICLE VI —(Establishment and Charter of Registry). In addition, the term “Registry” means the Settlement Administrator until such time as the Registry is fully operational.
1.124 “Removed” means, with respect to a Book that is removed pursuant to Section 3.5(a) (Right to Remove) and subject to Section 3.5(b)(vi) (Continuing Obligations), that Digital Copies of such Book are not accessible (including through the Research Corpus) other than on back-up tapes or other electronic back-up storage media. “Remove” and “Removal” have corresponding meanings.
1.125 “Representative Plaintiffs” means the following Persons, who, subject to Court approval, represent the Author Sub-Class: Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, and Herbert Mitgang; and the following Persons, who, subject to Court approval, represent the Publisher Sub-Class: The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc.
1.126 “Requesting Fully Participating Library” has the meaning set forth in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).
1.127 “Required Library Services” has the meaning set forth in Section 7.2(e)(i) (Obligation).
1.128 “Required Library Services Requirement” means the requirement set forth in Section 7.2(e)(i) (Obligation).
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1.129 “Research Agenda” means a document that describes a research project in sufficient detail to demonstrate that it will be Non-Consumptive Research.
1.130 “Research Corpus” means a set of all Digital Copies of Books made in connection with the Google Library Project, other than Digital Copies of Books that have been Removed by Rightsholders pursuant to Section 3.5 (Right to Remove or Exclude) or withdrawn pursuant to Section 7.2(d)(iv) (Right to Withdraw Library Scans), which Google provides to a Host Site or that Google, if and as a Host Site, uses.
1.131 “Revenue Model” means Institutional Subscriptions, Consumer Purchases, Advertising Uses, Public Access Service and any other revenue models agreed between the Registry and Google pursuant to Section 4.7 (New Revenue Models).
1.132 “Rightsholder” means a member of the Settlement Class who does not opt out of the Settlement by the Opt-Out Deadline.
1.133 “Rightsholder Releasors” has the meaning set forth in Section 10.1(m) (Rightsholder Releasors).
1.134 “Security Implementation Plan” means an implementation plan describing the processes and procedures that Google, a Fully Participating Library, or a Host Site, as the case may be, will employ in order to comply with the Security Standard.
1.135 “Security Representatives” has the meaning set forth in Section 8.2(b) (Changes to Security Standard).
1.136 “Security Standard” means the security standard set forth in Attachment D (Security Standard).
1.137 “Settlement” means the settlement of the Action as set forth in this Settlement Agreement.
1.138 “Settlement Administration Program” means the Settlement administration program described in Article XIII (Settlement Administration Program).
1.139 “Settlement Administrator” means Rust Consulting, Inc.
1.140 “Settlement Agreement” means this agreement and all of its attachments, as each may be amended from time to time pursuant to Section 17.27 (Amendments).
1.141 “Settlement Agreement Date” means the date set forth at the end of this Settlement Agreement.
1.142 “Settlement Class” means all Persons that, as of the Notice Commencement Date, have a Copyright Interest in one or more Books or Inserts. All
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Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Settlement Class are Google, the members of Google’s Board of Directors and its executive officers.
1.143 “Settlement Controlled Price” has the meaning set forth in Section 4.2(b)(i)(2) (Settlement Controlled Price).
1.144 “Settlement Discussions Confidentiality Agreement” means the Settlement Discussions Confidentiality Agreement dated August 18, 2006 between Google and certain representatives of Plaintiffs.
1.145 “Settlement Fund” means the Initial Settlement Deposit, the Final Settlement Deposit and the Supplemental Deposit, and all interest accrued thereon. The Settlement Fund will be held and administered in an account at the Depository Bank.
1.146 “Settlement Website” has the meaning set forth in Article XII (Class Notice Program).
1.147 “Snippet Display” means uses that display to users of Google Products and Services up to three (3) “snippets” (each snippet being about three (3) to four (4) lines of text) per search term per user.
1.148 “Standard Preview” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).
1.149 “Specified Price” has the meaning set forth in Section 4.2(b)(i)(1) (Specified Price).
1.150 “Standard Revenue Split for Advertising” has the meaning set forth in Section 4.5(a)(ii) (Net Advertising Revenues).
1.151 “Standard Revenue Split for Purchases” has the meaning set forth in Section 4.5(a)(ii) (Net Purchase Revenues).
1.152 “Summary Notice” has the meaning set forth in Article XII (Class Notice Program).
1.153 “Supplemental Deposit” has the meaning set forth in Section 5.3(c) (Supplemental Deposit).
1.154 “Third-Party Required Library Services Provider” has the meaning set forth in Section 7.2(e)(ii) (Third-Party Required Library Services Provider).
1.155 “Third-Party Unauthorized Access” means any access (other than Prohibited Access) by any third party to any Digital Copy of a Book that is not authorized
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by this Settlement Agreement, the applicable Library-Registry Agreement, or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.
1.156 “Unauthorized Access” means any display or reproduction in the United States by Google of any Digital Copy of a Book or Insert that is not authorized by this Settlement Agreement or the Rightsholder.
1.157 “Unclaimed Funds – Non-Subscription” has the meaning set forth in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models).
1.158 “Unclaimed Funds – Subscription” has the meaning set forth in Section 6.3(a)(ii) (Unclaimed Funds-Subscription Revenue Models).
1.159 “Unclaimed Funds” means Unclaimed Funds – Non-Subscription and Unclaimed Funds – Subscription.
1.160 “United States” or “U.S.” means the states and territories, the District of Columbia, and the possessions of the United States of America.
ARTICLE II — SETTLEMENT BENEFITS – OVERVIEW AND AUTHORIZATIONS
2.1 Benefits to the Settlement Class – Overview.
(a) Google Book Search. Google is authorized to, in the United States, sell subscriptions to the Institutional Subscription Database, sell individual Books, place advertisements on Online Book Pages, and make other commercial uses of Books, all as further described in this Settlement Agreement. Google shall pay to the Registry, for the benefit of the Rightsholders, seventy percent (70%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Settlement Agreement, less ten percent (10%), for Google’s operating costs, deducted from such revenues prior to such calculation (i.e., sixty-three percent (63%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Settlement Agreement). The Registry will distribute the revenues to Rightsholders pursuant to the provisions of the Plan of Allocation.
(b) Cash Payment. Google shall pay a minimum of forty-five million United States dollars (U.S. $45 million) into the Settlement Fund to pay Settlement Class members whose Books and Inserts have been Digitized prior to the Opt-Out Deadline. Such forty-five million United States dollars (U.S. $45 million) will be distributed from the Settlement Fund in the form of Cash Payments of at least sixty United States dollars (U.S. $60) per Principal Work; fifteen United States dollars (U.S. $15) per Entire Insert;
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and five United States dollars (U.S. $5) per Partial Insert in accordance with the Plan of Allocation. To the extent that funds greater than forty-five million United States dollars (U.S. $45 million) are required in order to pay every such Settlement Class member his, her or its Cash Payment, Google shall make an additional payment to enable such Cash Payments to be made to the Rightsholders from the Settlement Fund. To the extent funds remain from the forty-five million United States dollars (U.S. $45 million) after all Cash Payments are made, such excess will be distributed pursuant to the Plan of Allocation.
(c) Registry/Notice/Claims Administration Funding. Google shall pay thirtyfour and one-half million United States dollars (U.S. $34.5 million) to fund the launch and the initial operations of the Registry and to fund other Administrative Costs. The Registry will be responsible for locating and collecting information from Rightsholders, identifying and coordinating payments to Rightsholders, and otherwise representing the interests of Rightsholders under this Settlement Agreement.
(d) Attorneys’ Fees and Costs. Google shall pay Plaintiffs’ attorneys’ fees and costs in accordance with Section 5.5 (Attorneys’ Fees).
(e) Summary Only. This Section 2.1 (Benefits to the Settlement Class – Overview) is a summary of some of the provisions of this Settlement Agreement and is subject to all of the other provisions of this Settlement Agreement.
2.2 Authorization of Google, Fully Participating Libraries and Cooperating Libraries. In exchange for the benefits conferred in this Settlement Agreement on Plaintiffs and Rightsholders, Rightsholders, as of the Effective Date, authorize (a) Google to make Display Uses and Non-Display Uses of their Books and Inserts in GBS and other Google Products and Services, (b) each Fully Participating Library to use its Library Digital Copy and (c) each Host Site to make the Research Corpus available, all in accordance with the terms and conditions of this Settlement Agreement, a LibraryRegistry Agreement or a Host Site-Registry Agreement, as applicable. As of the Effective Date, Rightsholders authorize Google, the Fully Participating Libraries, the Cooperating Libraries and the Host Sites to engage in the activities, and only the activities, set forth in this Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable, and only in accordance with such terms and conditions as are applicable to those activities; provided that the remedy for any breach of a term or condition of this Settlement Agreement or a Library-Registry Agreement shall not be termination of such authorizations except as provided in Section 3.7(b) (Failure to Provide Contemplated Rightsholder Services). This Settlement Agreement does not authorize Google, any Participating Library or any Host Site to make any uses of Books and Inserts other than those uses that are authorized under this Settlement Agreement. This Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (i) the use of any work or material that is in the public domain under the Copyright Act in the United States, (ii) the use of books in hard copy (including microform) format other than the creation and use of Digital Copies of Books and Inserts,
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or (iii) any Participating Library’s Digitization of Books if the resulting Digitized Books are neither provided to Google pursuant to this Settlement Agreement nor included in any LDC, or the use of any such Digitized Books that are neither provided to Google pursuant to this Settlement Agreement nor included in any LDC.
2.3 Author-Publisher Procedures. All rights of Books Rightsholders under this Settlement Agreement are subject to the Author-Publisher Procedures.
2.4 Non-Exclusivity of Authorizations. The authorizations granted to Google in this Settlement Agreement are non-exclusive only, and nothing in this Settlement Agreement shall be construed as limiting any Rightsholder’s right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Settlement Agreement.
ARTICLE III — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND OBLIGATIONS
3.1 Digitization, Identification and Use of Books.
(a) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States (i) Google may, on a non-exclusive basis, Digitize all Books and Inserts obtained by Google from any source (whether obtained before or after the Effective Date), (ii) Fully Participating Libraries and Cooperating Libraries may provide Books and Inserts to Google in hard copy (including microform) format to be Digitized (or in a form Digitized by or for such Fully Participating Library or Cooperating Library), and (iii) Google and Fully Participating Libraries may use such Books and Inserts as provided in this Settlement Agreement and the Library-Registry (Fully Participating) Agreements. The authorizations to use Books and Inserts provided for by this Settlement Agreement or a Library-Registry Agreement are not transfers of copyright ownership to such Books or Inserts, and nothing in this Settlement Agreement or a Library-Registry Agreement shall operate to transfer any copyright ownership in Books or Inserts. The foregoing authorization for Google to Digitize Books and Inserts includes authorization of Google’s contractors to Digitize Books and Inserts for Google, including libraries that may Digitize Books and Inserts, or portions thereof, at Google’s request.
(b) Identification of Digitized Books and Government Works.
(i) List of Digitized Books and Government Works. As of the Notice Commencement Date, and upon Plaintiffs’ request, Google will provide Plaintiffs, in a form mutually agreed, with a list of the Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized as of the Notice Commencement Date and the date each Book, Public Domain Book with a copyright date after 1922 or Government Work was Digitized by Google,
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and a separate list of all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google reasonably anticipates it will Digitize on or before the Opt-Out Deadline, in each case, to the extent that Google is permitted to do so under then-existing contracts with Metadata providers. Google and Plaintiffs will cooperate to obtain such Metadata providers’ permission for Google to provide Plaintiffs with such lists; provided, however, that the Registry shall be responsible for payment of any additional license fees to the extent required by such providers. Further, as soon as practicable, Google will provide Plaintiffs, in a form mutually agreed, with a final list of all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google Digitized on or before the Opt-Out Deadline.
(ii) Books Database. As of the Notice Commencement Date, Google, with or through the Registry, will make a searchable online database available to members of the Settlement Class through the Internet (1) for the purpose of identifying all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized or reasonably anticipates that it might Digitize under this Settlement Agreement, and (2) for purposes of Article V (Other Settlement Benefits), identifying whether such Books, Public Domain Books with a copyright date after 1922 or Government Works have been Digitized as of the Notice Commencement Date or Google reasonably anticipates that it might Digitize such Books, Public Domain Books or Government Works prior to the Opt-Out Deadline. Such database shall be referred to in this Settlement Agreement as the “Books Database.” The Books Database will support queries by author, title, publisher, ISBN, and date of publication.
(iii) Books. Google will also allow members of the Settlement Class to submit bibliographic information (e.g., title, author, and publication date) for Books not in the Books Database.
(iv) Inserts.
(1) Submission. The Books Database will allow each member of the Settlement Class to submit identifying information regarding his, her or its Inserts, such as the Books, Public Domain Books with a copyright date after 1922 or Government Works in which such Inserts were published, the location of such Inserts within Books, Public Domain Books with a copyright date after 1922 or Government Works and any other identifying information about such Inserts (e.g., whether the Insert is an introduction, a foreword, etc.).
(2) Insert Identification. For content that may be an Insert, the Books Database will allow any Person who might be a member of the Settlement Class to submit a digital copy of his, her or its content that may
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be an Insert or to otherwise identify such content that may be an Insert, and Google will perform searches to identify Books, Public Domain Books with a copyright date after 1922 or Government Works, if any, that contain such submitted content. If Google identifies any Books, Public Domain Books with a copyright date after 1922 or Government Works that may contain such submitted content, Google will notify such Person of such Books, Public Domain Books with a copyright date after 1922 or Government Works in order to enable him, her or it to determine whether the submitted content is an Insert in such Books, Public Domain Books with a copyright date after 1922 or Government Works and the pages on which such content appears. Google shall have no liability for failure to identify an Insert under this Section 3.1(b)(iv)(2) (Insert Identification).
3.2 Initial Display and No Display Book Classification.
(a) General Guidelines. Pursuant to Section 3.2(b). (Display/No Display Classification), Google and the Registry will classify all Books in one of two categories, either Display Books, as described in Section 3.3 (Display Books), or No Display Books, as described in Section 3.4 (No Display Books).
(b) Display/No Display Classification. Google will initially classify a Book as No Display if it is determined to be Commercially Available as of the Notice Commencement Date, and Display if it is determined not to be Commercially Available as of the Notice Commencement Date. A Rightsholder, Google, or the Registry (pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders)), may change a Book’s classification as Display or No Display as set forth in this Article III (Google Book Search – Rights, Benefits and Obligations).
(c) Notification of Display/No Display Classification. The Books Database will identify whether a Book has been classified as a Display Book or a No Display Book.
(d) Commercial Availability, In Print/Out of Print and Public Domain Determination.
(i) Basis for Determination. Google shall determine whether a Book is Commercially Available or not Commercially Available based on an analysis of multiple third-party databases as well as an analysis of the Book’s retail availability based on information that is publicly available on the Internet. When analyzing the third-party databases, Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be offered for sale new through one or more then-customary channels of trade in the United States. When analyzing information that is publicly available on the Internet, Google will determine retail
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availability by consulting various sources to determine whether the Book is available for sale new. Each of these sources may contain errors; by combining information from multiple sources, Google shall determine whether a Book is Commercially Available or is not Commercially Available in a manner that is reasonably designed to minimize the overall error rate. All Books for which Google does not have information from the sources identified above will be determined to be not Commercially Available. Rightsholders may provide information directly to Google that a Book is being offered for sale new through one or more then-customary channels of trade in the United States when they submit their Claim Form, through the Books Database or, at any time after such submission, to Google or the Registry. When Rightsholders provide such information to Google, unless Google reasonably believes that the information is inaccurate, the Book shall be determined to be Commercially Available and Google shall change the classification of the Book to a No Display Book within thirty (30) days of receipt of such information.
(1) In-Copyright Principal Work. If a Book’s Principal Work is not in the public domain under the Copyright Act in the United States and that Book is Commercially Available, then any other Book that has the same Principal Work (such as a previous edition) is also deemed to be Commercially Available, whether or not such other Book is at the time in question also Commercially Available.
(2) Public Domain Principal Work. If a Book’s Principal Work is in the public domain under the Copyright Act in the United States, and that Book is Commercially Available and also contains an Insert (i.e., content that qualifies as an Insert and is not in the public domain under the Copyright Act in the United States), then any earlier edition of such Book that contains such Insert is also deemed to be Commercially Available.
(ii) In-Print/Out-of-Print. Google’s initial determination of whether or not a Book is Commercially Available will be used to initially classify Books as “In-Print” or “Out-Of-Print,” as such classifications are defined in the AuthorPublisher Procedures, and only for purposes of the Settlement. Google shall provide the Registry with the determination as to whether a Book is Commercially Available as of the Notice Commencement Date and thereafter from time to time. Classification of Books as In-Print or Out-Of-Print pursuant to the terms of the Author-Publisher Procedures shall be the responsibility of the Registry. If the Registry re-classifies a Book as Out-Of-Print, the Registry will direct Google to change the classification of the Book to a Display Book, which Google shall do within thirty (30) days unless the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change Requests by Rightsholders), expressly
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requests that the Book be treated as a No Display Book. If the Registry reclassifies a Book as In-Print, the Registry will direct Google to change the classification of the Book to a No Display Book only upon the express request of the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change Requests by Rightsholders).
(iii) Mistakes. If a Book was mistakenly determined by Google not to be Commercially Available, then the Rightsholder of the Book may notify Google, or may authorize the Registry to notify Google, of such mistaken determination. To verify the claim, the Registry will provide, upon Google’s reasonable request, information supporting any assertion by the Rightsholder of the Book that the Book is Commercially Available. If the Rightsholder demonstrates that the Book is Commercially Available, then, as Google’s sole obligation and the Rightsholder’s sole remedy (subject to Section 3.2(d)(iv) (Disputes)), Google shall correct the determination as to whether the Book is Commercially Available within thirty (30) days.
(iv) Disputes. The Registry and Google shall work together to resolve any disputes regarding the determination of whether a Book is Commercially Available. If they are unable to do so, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). If the Arbitrator, in such dispute, finds in favor of the Rightsholder, then Google shall pay the Rightsholder’s reasonable attorneys’ fees and costs, including arbitration costs.
(v) Safe Harbor Public Domain Determination.
(1) Safe Harbor Process. Attachment E (Public Domain) sets forth the process by which Google may determine whether a book is a Public Domain Book for the sole purpose of determining whether Section 3.2(d)(v)(3) (Safe Harbor) is applicable. Attachment E (Public Domain) may be amended by Google and the Registry from time to time if Google develops and provides to the Registry additional or different processes for determining whether a book is a Public Domain Book. If the Registry reasonably believes that such processes do not identify Public Domain Books accurately, then the Registry shall notify Google thereof. Google shall respond to such notice within thirty (30) days, either by modifying such process or by explaining how such process can reasonably identify Public Domain Books accurately. Any disputes as to whether the process can reasonably identify Public Domain Books for purposes of determining the applicability of Section 3.2(d)(v)(3) (Safe Harbor) shall be resolved pursuant to Article IX (Dispute Resolution).
(2) List. Google shall identify to the Registry books that it has determined to be Public Domain Books pursuant to the process set forth in
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Attachment E (Public Domain) and for which Google wants the safe harbor described in Section 3.2(d)(v)(3) (Safe Harbor). For each such book, Google shall provide the supporting reasons and information that Attachment E (Public Domain) requires. At any time, the Registry or a Rightsholder may notify Google that it or a Rightsholder believes that any such book is not a Public Domain Book (with supporting reasons and information) and, upon receipt of such notice, Google shall promptly review the supporting reasons and information and shall either (a) reclassify the Book as in copyright or (b) notify the Registry and any notifying Rightsholder that Google continues to believe the book is a Public Domain Book. Any disputes with respect to whether a book is a Public Domain Book shall be resolved pursuant to Article IX (Dispute Resolution); in any such dispute, the burdens of proof as to whether the book is in copyright or in the public domain under the Copyright Act in the United States (and the allocation and shifting of such burdens) shall be as if the action were one for copyright infringement brought under the Copyright Act.
(3) Safe Harbor. If, with respect to a book, Google has followed the process set forth in Attachment E (Public Domain) and neither the Registry nor a Rightsholder has notified Google pursuant to Section 3.2(d)(v)(2) (List), then Google may treat such book as if it is in the public domain under the Copyright Act in the United States for the purposes of this Settlement Agreement, and Google will have no liability or obligation (a) for any use of such book to the extent that such use would be authorized under this Settlement Agreement if such book were a Display Book or (b) for providing downloadable versions of such book. If the Registry or a Rightsholder has notified Google pursuant to Section 3.2(d)(v)(2) (List), Google otherwise obtains actual knowledge that a Book is not in the public domain under the Copyright Act in the United States, or a Book is determined to be in copyright pursuant to Article IX (Dispute Resolution), then, commencing five (5) Business Days from the date of such notice, knowledge or determination, the foregoing limitation on Google’s liability or obligation will not apply.
(e) Change of Display/No Display Classification.
(i) Change Requests by Rightsholders. For all Books, the Rightsholder of the Book or the Registry (subject to the last sentence of this Section 3.2(e)(i) (Change Requests by Rightsholders)) may direct Google or the Registry to change the classification of a Book or group of Books to a Display Book or Display Books or to a No Display Book or No Display Books or to include in, or, pursuant to Section 3.5 (Right to Remove or Exclude), exclude any
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or all of his, her or its Books or group of Books from, one or more of the Display Uses. In the event the Rightsholder directs that any of his, her or its Books be included in one or more of the Display Uses, (1) the provisions of Section 3.5(b)(iii) (Coupling Requirement) will apply to such Books, (2) such Books will be considered Display Books, and (3) such Display Uses will be deemed authorized. Google will implement a direction to change the classification of a Book within thirty (30) days after Google receives notice of such direction. The Registry shall be able to direct Google to change the classification of a Book to a Display Book or a group of Books to Display Books. A direction to change the classification of a Book to a No Display Book or a group of Books to No Display Books, however, must be initiated by the Rightsholder of the Book or Books.
(ii) Change Requests by Google. At any time after one (1) year from the Final Approval Date, Google shall have the right to request that the classification of a Book be changed to a Display Book if Google believes that the Book is not Commercially Available at that time, or if Google believes that a mistake was made in initially determining the Book to be Commercially Available. Upon receipt of such a request from Google, the Registry shall have one hundred and twenty (120) days to attempt to contact the Rightsholder of the Book to inform such Rightsholder of such request and/or collect evidence with respect to whether the Book is Commercially Available. The Registry shall notify Google if it is able to contact such Rightsholder and will inform Google whether such Rightsholder wants the Book to remain classified as a No Display Book. If the Rightsholder of the Book provides evidence that the Book is Commercially Available or otherwise directs Google that he, she or it wants the Book to remain a No Display Book, or if the Registry otherwise determines that the Book is Commercially Available, then the Registry will notify Google, and Google will not change the classification of the Book to a Display Book at that time on that basis. If, by the end of the one hundred twenty (120)-day period, the Registry is unable to contact the Rightsholder or to find accurate evidence regarding whether the Book is Commercially Available, then the Registry shall inform Google and Google may change the classification of the Book to a Display Book, subject to Section 3.5 (Right to Remove or Exclude).
3.3 Display Books.
(a) Display and Non-Display Uses. Subject to Section 3.5 (Right to Remove or Exclude) and Section 4.3 (Preview Uses), Google may make Display Uses and NonDisplay Uses of all Display Books.
(b) Inserts in Display Books. If a Book is classified as a Display Book, then, subject to Section 3.5 (Right to Remove or Exclude), Google may make Display Uses and Non-Display Uses of all Inserts in such Book. If a Book is classified as a No Display Book, then all Inserts in that Book are also subject to Section 3.4 (No Display Books).
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(c) Inserts in Government Works and Public Domain Books. Google may use all Inserts in Government Works and Public Domain Books in connection with any uses of such Government Works and Public Domain Works in Google Products and Services, subject to Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models).
(d) Accommodation of Print Disabilities. Google may provide the Display Uses in a manner that accommodates users with Print Disabilities so that such users have a substantially similar user experience as users without Print Disabilities.
(e) Change to No Display. Rightsholders of Books may, pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a Display Book to a No Display Book.
(f) Author Landing Page Links. If, in any Display Use of a Book in GBS for which Display Use is authorized pursuant to this Settlement Agreement, Google presents any web page (i) dedicated to an individual author that includes hyperlinks to that author’s Books and other features, or (ii) with content from a Book that includes a hyperlink to the website of the publisher of such Book, then Google will also include on such page a hyperlink (or similar or appropriate technology) to that author’s website, in either case only if (1) the Registry provides Google with such hyperlink, and (2) such website promotes the author’s works, or provides relevant information about the author, and is otherwise appropriate for such purposes; provided that Google may remove any such hyperlink if Google becomes aware that such hyperlink no longer functions to link to such website.
3.4 No Display Books.
(a) Non-Display Uses. Subject to Section 3.5 (Right to Remove or Exclude), Google may make Non-Display Uses of all No Display Books.
(b) Change to Display. Rightsholders of Books may, pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a No Display Book to a Display Book, or to include any or all of their No Display Books in one or more of the Display Uses, in which case such Books will then be considered to be Display Books, and Article IV (Economic Terms for Google’s Use of Books) shall apply.
3.5 Right to Remove or Exclude.
(a) Right to Remove.
(i) Right to Remove. A Rightsholder of a Book may direct that his, her or its Book be Removed. If a Book has not yet been Digitized when Google receives a Removal request for that Book, Google will use reasonable efforts not
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to Digitize that Book, but, in any event, will comply with the request to Remove. Google will implement a Rightsholder’s Removal direction within thirty (30) days after notice from the Registry. A Fully Participating Library will implement a Rightsholder’s Removal direction within ninety (90) days after notice from the Registry.
(ii) Back-up Storage. Google and Fully Participating Libraries may maintain Books on back-up tapes or on any other back-up storage media subject to compliance with the Security Standard. If any back-up tape or other back-up storage media containing such Book is restored, then any Book that has been Removed pursuant to Section 3.5(a)(i) (Right to Remove) shall also be Removed from any copy made from the back-up tape or other back-up storage media.
(iii) Limitations on Right to Remove. The right to Remove under Section 3.5(a)(i) (Right to Remove) is limited to requests made within twentyseven (27) months from the Notice Commencement Date. Thereafter, requests will be honored only to the extent that the Books have not yet been Digitized as of the date the request is made; if the Books at issue have already been Digitized, the Rightsholder may request exclusion from particular Display Uses (under Section 3.5(b)(i) (Right to Exclude)) but not Removal (under Section 3.5(a)(i) (Right to Remove)).
(b) Right to Exclude from Display Uses and Revenue Models.
(i) Right to Exclude. Any Rightsholder of a Book at any time may direct Google or the Registry to exclude his, her or its Book, or any portion thereof, from any one or more, or all, Display Uses, Revenue Models or the Book Annotation sharing feature under Section 3.10(c)(ii) (Hyperlinks and Book Annotations), and any Rightsholder of an Insert at any time may direct that his, her or its Insert, or any portion thereof, be excluded from all (but not less than all) Display Uses; provided that any Rightsholder of an Insert may only direct that his, her or its Insert, or any portion thereof, be excluded but not the entire Book, Public Domain Book or Government Work in which its Insert is contained. Google shall implement any such direction as follows. Google will implement a Rightsholder’s exclusion direction within thirty (30) days after notice from the Registry or from resolution of the dispute in favor of such Rightsholder (in the case of a challenge under Section 3.5(b)(ii) (Challenging Insert Exclusion Requests) or Section 3.5(b)(vii) (Government Works and Public Domain Works)). Google shall use commercially reasonable efforts to develop a mechanism for excluding no more of Books or Inserts than Rightsholders direct. If, after using such commercially reasonable efforts, Google is unable to limit its exclusion to the Insert or portion of the Book or Insert directed by a Rightsholder, Google may exclude up to the entire page or pages on which such Insert or portion appears. If, however, Google or the Registry develops a tool that enables Rightsholders to
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specify with precision the location and amount of material in an Insert or portion of a Book or Insert that is less than an entire page and for which the Rightsholder has directed exclusion, Google shall, upon receipt of such direction, exclude such Inserts or portions of Books or Inserts, but no more than that, from Display Uses as directed.
(1) Exclusion from Library Digital Copy. Notwithstanding Section 3.5(b)(i) (Right to Exclude), no Rightsholder may direct that his, her or its Book or Insert be excluded from any Library Digital Copy provided, however, that, in the case of a Book, a Rightsholder of the Book may request Removal of such Book pursuant to Section 3.5(a) (Right to Remove).
(ii) Challenging Insert Exclusion Requests. The Rightsholder of a Book that contains an Insert that the Rightsholder of the Insert has directed be excluded may challenge such direction under law or contract rights, and any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution). In addition, if (a) the Rightsholder of a Book that contains an Insert for which the Insert Rightsholder has directed exclusion is not a Registered Rightsholder or (b) the Registered Rightsholder of the Book that contains such Insert (1) determined not to challenge such exclusion pursuant to the previous sentence and (2) does not object to Google making such challenge, then Google may challenge whether the Rightsholder of the Insert would have a right under the Copyright Act to exclude such Insert. Google and the Registry will develop a process to implement the foregoing. Any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution).
(iii) Coupling Requirement. Notwithstanding Section 3.5(b)(i) (Right to Exclude), if the Rightsholder of any Library Work authorizes Consumer Purchase or any new Revenue Model that may be developed pursuant to Section 4.7 (New Revenue Models) (except for any new Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) of or for such Library Work and Google uses a Library Scan of such Library Work for Consumer Purchase or for such new Revenue Model, then the Rightsholder authorizes Google to include such Library Work in all Institutional Subscriptions (the “Coupling Requirement”); provided, however, that if a Library Work is Commercially Available as of the Notice Commencement Date or becomes Commercially Available at any time during the two (2)-year period after the Notice Commencement Date, the Coupling Requirement will not apply to that Library Work; provided, further, that if, at any time after the end of such two (2)year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google is using the Library Scan for Display Uses.
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(iv) Mistakes and the Coupling Requirement. If, as of the Notice Commencement Date, a Library Work for which Google uses a Library Scan for Consumer Purchase or any new Revenue Model that may be developed pursuant to Section 4.7 (New Revenue Models) (except for any new Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) is not Commercially Available but Google mistakenly determined such Library Work to be Commercially Available, and such Library Work does not become Commercially Available at any time during the two (2)-year period following the Notice Commencement Date, then, upon a determination that the Library Work is not Commercially Available after such two (2)-year period, the Coupling Requirement will apply to such Library Work if Google is using a Library Scan for Display Uses. If, as of the Notice Commencement Date or at any time during the two (2)-year period following the Notice Commencement Date, such Library Work is mistakenly determined to be not Commercially Available, then, upon determination that the Library Work is Commercially Available, the Coupling Requirement will not apply to such Library Work; provided, however, that if, at any time after the end of such two (2)-year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google uses a Library Scan for Display Uses.
(v) Waiver of Coupling Requirement. Google and the Registry may, with the consent of a Fully Participating Library or a Cooperating Library, agree to waive the Coupling Requirement as to Library Works of which such Fully Participating Library or Cooperating Library is the source and for which Google uses a Library Scan for Display Uses; provided, however, that for any Library Work for which a Library Scan is constructed from more than one physical copy of a Library Work, such waiver requires the consent of all Fully Participating Libraries and Cooperating Libraries that are the source of copies of such Library Work. Any Fully Participating Library and Cooperating Library may also agree to such a waiver in its Digitization Agreement with Google or upon notice to Google, in which event Google shall notify the Registry of such waiver. Google and the Registry may, with the consent of all of the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, agree to waive the Coupling Requirement as to all Library Works subject to the Coupling Requirement.
(vi) Continuing Obligations. If Google is authorized to make a Display Use of a Book and, subsequent to such authorization, a Rightsholder Removes such Book or excludes such Book or an Insert contained therein, Google shall cease such Display Use except that Google may make such Display Use of such Book or Insert to the extent necessary to fulfill its obligations as of the date of such Removal or exclusion request to any user who previously purchased access
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to or use of the Book through any Institutional Subscription (for a period not to exceed ten (10) months or the term of the Institutional Subscription, whichever is less, after the date of such Removal or exclusion request) or Consumer Purchase or any substantially similar Google Product or Service based on authorizations granted to Google under a separate agreement entered into directly with the Rightsholder.
(vii) Government Works and Public Domain Works. If a Rightsholder of an Insert in a Government Work or a Public Domain Book (not an Insert in a Book) directs Google to exclude its Insert from Display Uses, Google may elect to reject such direction. In the event of such a rejection, such Rightsholder may, notwithstanding any release in this Settlement Agreement, bring either a judicial action in United States federal court against Google with respect to Google’s use of the Insert, in which judicial action the Rightsholder may seek to recover any and all relief available pursuant to the Copyright Act or, alternatively, the Rightsholder may initiate dispute resolution under Article IX (Dispute Resolution) with respect to Google’s rejection of the Rightsholder’s direction. If the Rightsholder prevails in such arbitration, (i) the Arbitrator shall issue an order prohibiting Google from making any and all Display Uses of such Insert that the Arbitrator determines would be an infringement of such Rightsholder’s Copyright Interest, (ii) Google shall pay the Rightsholder’s reasonable attorneys’ fees and costs, including the cost of the arbitration, and (iii) the foregoing and any other injunctive relief deemed appropriate by the Arbitrator shall be Google’s sole obligation and the Rightsholder’s sole remedy for rejecting the Rightsholder’s direction for exclusion of its Insert in a Government Work or Public Domain Book from Display Uses (in addition to any award of injunctive relief, to prevent a continuing infringement of such Rightsholder’s Copyright Interest in his, her or its Insert, that may be awarded by the Arbitrator). Pending the Decision of the Arbitrator, Google shall stop any and all Display Uses of the Insert.
(c) Take-Down or Transfer Requests.
(i) Definitions. As used in this Section 3.5(c) (Take-Down or Transfer Requests), the following terms have the following meanings:
(1) “Counter-Notice” means a request, in the form of notice attached as Exhibit B to the Author-Publisher Procedures, that states, under penalty of perjury, that the Initial Authorizing Rightsholder has the good faith belief that he, she or it has rights in a Book that is the subject of a Take Down Request or a Transfer Request necessary to authorize Google to exploit such Book as it is being exploited in such Other Google Program.
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(2) “Educational Books” means Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs.
(3) “Initial Authorizing Rightsholder” means the Person who had given Google permission to use a Book that is the subject of a Take Down Request or a Transfer Request.
(4) “Notifying Rightsholder” means a Rightsholder who has a good faith belief that Google is exploiting a Book in an Other Google Program without the necessary authorization from such Rightsholder.
(5) “Other Google Program” means a Google program other than, but similar to, the Revenue Models, including the Google Partner Program.
(6) “Take Down Request” means a request, in the form of notice attached as Exhibit A to the Author-Publisher Procedures, that Google remove a Book from an Other Google Program.
(7) “Transfer Request” means a request, in the form of notice attached as Exhibit A to the Author-Publisher Procedures, to transfer a Book from an Other Google Program to one or more Display Uses in one or more of the Revenue Models.
(ii) Procedures. The following procedures will apply to each Book classified as In-Print under the Author-Publisher Procedures (except for Educational Books) that is the subject of a contract between an author and a publisher regarding publication of such Book executed prior to 1992 and that has not been amended thereafter to expressly grant or retain all electronic rights pertinent to an Other Google Program if such Book is displayed in an Other Google Program.
(1) If Google receives a Take Down Request or a Transfer Request from the Registry, Google shall send a copy to the Initial Authorizing Rightsholder.
(2) If the Initial Authorizing Rightsholder fails to respond within thirty (30) days, then, if the request satisfies the requirements set forth in the Author-Publisher Procedures, Google shall take down such Book or transfer such Book into the Revenue Models, as specified in the request. If Google transfers such Book into the Revenue Models, such Book shall become subject to this Settlement Agreement.
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(3) If the Initial Authorizing Rightsholder responds to a Take Down Request by filing a Counter-Notice, the Registry will forward the Counter-Notice to Google and the Notifying Rightsholder. If the Counter Notice requirements set forth in the Author-Publisher Procedures are met, Google may, in its discretion, take down, maintain or restore access to such Book in the Other Google Program.
(4) If the Initial Authorizing Rightsholder responds to a Transfer Request by filing a notice of objection with the Registry, then Google shall not include such Book in the Revenue Models and shall stop displaying such Book in the Other Google Program while the Notifying Rightsholder and the Initial Authorizing Rightsholder resolve the dispute. Google shall only restore access to such Book in any of the Revenue Models or the Other Google Program once (a) the Initial Authorizing Rightsholder and the Notifying Rightsholder jointly authorize Google to do so or (b) either the Initial Authorizing Rightsholder or the Notifying Rightsholder obtains a court (or, if the contract between the author and publisher regarding publication of such Books permits, arbitration) ruling giving it authority to direct Google to do so.
(5) In any disputes between an Initial Authorizing Rightsholder and a Notifying Rightsholder over which of them has the right to authorize Google to exploit a Book in the Other Google Program or in the Revenue Models, Google will not be named as a party or brought into the dispute in any manner and will have no liability or responsibility with respect to any such dispute.
3.6 Technical Adaptations. Except with respect to Books Removed under Section 3.5(a) (Right to Remove), Google may make technical adaptations to (but not adapt or alter the content of) all Books (whether Display or No Display) and Inserts as reasonably necessary to preserve, maintain, manage, and keep technologically current its copies of the Books and Inserts.
3.7 Contemplated Rightsholder Services.
(a) Obligation. Google shall implement both of the Contemplated Rightsholder Services (i.e., Institutional Subscriptions and Consumer Purchases) within five (5) years after the Effective Date. If Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, Google shall implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services. Google’s sole obligation and the sole remedy for any failure under this Section 3.7(a) (Obligation) is set forth in Sections 3.7(b) (Failure to
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Provide Contemplated Rightsholder Services) through (d) (Third-Party Required Library Services Provider).
(b) Failure to Provide Contemplated Rightsholder Services. If (i) Google fails to implement either of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, Google’s right to make any and all Non-Display Uses and Display Uses shall terminate ninety (90) days after notice to Google by the Registry, except as may be authorized by the Registry; provided, however, that if Google subsequently offers one of the Contemplated Rightsholder Services, Google’s rights to make any and all Non-Display Uses and Display Uses shall be immediately re-instated. Notwithstanding the foregoing, if Google believes that any actions or inactions of the Registry have proximately caused Google to fail to provide the Contemplated Rightsholder Services, then Google will provide the Registry with notice describing the Registry’s actions or inactions within such ninety (90)-day notice period, and the Registry’s notice of termination will have no effect and Google may continue to make any and all Non-Display Uses and Display Uses. Any dispute over whether any action or inaction of the Registry has proximately caused Google to fail to provide the Contemplated Rightsholder Services shall be subject to the dispute resolution provisions of Article IX (Dispute Resolution) and Google may make any and all Non-Display and Display Uses pending the Decision of the Arbitrator.
(c) Additional Contemplated Rightsholder Services Provider. In addition, if (i) Google fails to implement both of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, the Registry on the one hand and/or the Fully Participating Libraries and the Cooperating Libraries on the other hand, acting reasonably, may work to find one or more provider(s) that can provide Consumer Purchases, Institutional Subscriptions and/or the new Revenue Models listed in Section 4.7 (New Revenue Models), and/or Required Library Services, on substantially the same terms described in this Settlement Agreement. Any such arrangement shall be subject to the consent of the Registry, on the one hand, and the Fully Participating Libraries and the Cooperating Libraries acting through the Designated Representative, on the other hand (but in the case of the Fully Participating Libraries and the Cooperating Libraries only as to Library Scans), which consent of the Registry and the Fully Participating Libraries and the Cooperating Libraries shall not be unreasonably withheld or delayed (any such provider is referred to in this Settlement Agreement as an “Additional Contemplated Rightsholder Services Provider”). If an Additional
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Contemplated Rightsholder Services Provider is identified and the foregoing required consent is obtained, then Google will provide such Additional Contemplated Rightsholder Services Provider with Digital Copies of the Library Scans (so long as the Digital Copies are not restricted from further distribution under the Digitization Agreement between Google and a Fully Participating Library or a Cooperating Library) and Digital Copies of other Books that may be provided by Google without restriction. Such Digital Copies may be used by the Additional Contemplated Rightsholder Services Provider solely to provide the Contemplated Rightsholder Services and/or the new Revenue Models listed in Section 4.7 (New Revenue Models) and/or Required Library Services in accordance with the terms of this Settlement Agreement and, in addition, with respect to Digital Copies of Library Scans only, the terms of Google’s agreements with each of the Fully Participating Libraries and the Cooperating Libraries. Such Additional Contemplated Rightsholder Services Provider is, in connection with any Claim arising out of its making available Digital Copies of Books, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).
(d) Third-Party Required Library Services Provider. If Google provides a Digital Copy of the Library Scans to a Third-Party Required Library Services Provider under Section 7.2(e) (Required Library Services Requirement), then the Contemplated Rightsholder Services may also be provided by the Third-Party Required Library Services Provider in addition to the Required Library Services, and Google will have no obligation to provide Contemplated Rightsholder Services and will have no liability or obligation with respect to Contemplated Rightsholder Services provided by the ThirdParty Required Library Services Provider.
(e) Google’s Exclusion of Books. Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google’s right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google. Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry’s use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality.
(i) Digital Copy of Excluded Books. Google will provide to the Registry a Digital Copy of any Book that Google excludes for editorial reasons. The Registry may, subject to Section 3.5 (Right to Remove and Exclude), engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to
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Section 7.2(a)(i) (Fully Participating Library Collections) from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement)) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).
3.8 Effect of Other Agreements and Changes in Law.
(a) Effect of Other Agreements. The Registry (and any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) will extend economic and other terms to Google that, when taken as a whole, do not disfavor or disadvantage Google as compared to any other substantially similar authorizations granted to third parties by the Registry (or any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) when such authorizations (i) are made within ten (10) years of the Effective Date and (ii) include rights granted from a significant portion of Rightsholders other than Registered Rightsholders. With respect to any such authorization, the Registry promptly will provide Google with notice that an authorization has been granted with sufficient detail of the terms to allow Google to obtain the benefits of such authorization pursuant to this Section 3.8(a) (Effect of Other Agreements).
(b) Effect of Changes in Law. Google will be able to take advantage of any future legislative change(s), such as legislation allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8(b) (Effect of Changes in Law).
3.9 Distribution Arrangements. When Google may make any Snippet Display of a Book under this Settlement Agreement, Google may also allow third parties that have entered into agreements with Google (a) to display snippets served by Google on
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their websites in response to user interactions on their websites and (b) to cache temporarily snippets transmitted by Google as described in the foregoing clause (a) for future display on their websites in response to user interactions on their websites.
3.10 Specific Prohibitions.
(a) Prohibitions on Display. Except as expressly permitted by this Settlement Agreement or otherwise by Rightsholders or the Registry, Google shall not (i) display any Expression from Books or Inserts; (ii) display any Expression from Books or Inserts in a manner that would constitute a derivative work of such Books or Inserts under the Copyright Act; or (iii) display summaries or abstracts of, or compilations from, Books or Inserts created using Digital Copies.
(b) Prohibitions on Linking. Except as expressly permitted by this Settlement Agreement or otherwise by Rightsholders or the Registry, Google shall not create hyperlinks to Preview Use Book pages permitted by the terms of this Settlement Agreement from revenue generating products or services if the effect of those links in the aggregate is to detract from revenue under this Settlement Agreement that the Rightsholder(s) of such Book(s) would realize if the links did not exist, unless such services or products (i) are search services (including, for example, Google Web Search, Google Earth and other Google services that show search results by browsing instead of by entering a search query), or (ii) have the effect of making discovery of Books easier, more efficient, more widespread, or more useful. If Plaintiffs or any Rightsholders believe that this Section 3.10(b) (Prohibitions on Linking) has been violated, as Plaintiffs’ and Rightsholders’ sole remedy and Google’s sole obligation, the Registry will notify Google of the existence of such links and if it is agreed or an Arbitrator, pursuant to Article IX (Dispute Resolution), determines that this Section 3.10(b) (Prohibitions on Linking) has been violated, Google will expeditiously remove said links or come to a separate agreement with the Registry to permit them.
(c) Integrity of the Text.
(i) No Alteration of Text. Except as expressly authorized by the Rightsholder or the Registry, or in this Settlement Agreement, Google may not intentionally alter the text of a Book or Insert when displayed to users. Changes in the formatting or presentation of text are not considered to be alteration of the text, e.g., for the Accommodated Service.
(ii) Hyperlinks and Book Annotations. Except as expressly authorized by the Rightsholder or the Registry, Google may not add hyperlinks to any content within a page of a Book or facilitate the sharing of Book Annotations, except that Google may:
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(1) add hyperlinks within the Book for specific internal references from text contained within the Book to other sections of the Book, such as from a table of contents entry to the referenced page, from a page number in the index to the page, or from internal references in the Book to footnotes, endnotes, bibliographical material, appendices, figures, and illustrations,
(2) add a hyperlink from an explicit reference in the Book to an online version of an external source cited in a footnote, endnote, or bibliographical material,
(3) add a hyperlink to a URL that the Rightsholder included in a Book,
(4) temporarily highlight or otherwise emphasize words in response to a user’s action, so long as such highlight or emphasis appears only on the user’s monitor and/or on a page printed by such user, and
(5) Subject to the Rightsholder’s right to exclude its Books from the Book Annotation sharing feature, allow a user to make Book Annotations for the user’s own personal use and to share those Book Annotations with a limited number of other users, provided that the feature that enables Book Annotations within Google Products and Services is subject to the following limitations:
a) Book Annotations may not be shared with the general public, and
b) Book Annotations may not be accessible to any user who has not expressly chosen to access it either by active selection or by participation in a group such as a class for which this feature is used, and
c) Book Annotations may not be displayed with the Book for other users who do not already have the right to view the Book, and
d) for sharing of a Book Annotation in connection with Consumer Purchase, the user may only share such Book Annotation with no more than twenty-five (25) individuals and the user must identify (e.g., by name, login or user id) each individual with whom such Book Annotation will be shared, and
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e) for sharing of a Book Annotation as part of an Institutional Subscription, the user may only share such Book Annotation with the following other users of such Institutional Subscription: instructors and students in a single academic course sharing such Book Annotation in connection with such course during an academic year or with students of the same course during a subsequent academic year, and employees of the subscriber of the Institutional Subscription sharing such Book Annotation in connection with a discrete work project during the course of that project.
(iii) Advertising Content. Google may not place on, behind or over the contents of a Book or portion thereof (including on Preview Use pages or Snippet Display pages), as displayed to a user, any pop-up, pop-under, or any other types of advertisements or content of any kind. In addition to a Rightsholder’s right to exclude one or more of his, her or its Books from Advertising Uses pursuant to Section 3.5(b)(i) (Right to Exclude), the Registry is authorized to act on behalf of Rightsholders that are not Registered Rightsholders to exclude from Advertising Uses one or more Books of such Rightsholders if Google displays animated, audio or video advertisements in conjunction with those Books and the Registry determines that exclusion from such Advertising Uses is in the best interests of such Rightsholders.
3.11 Hosted Version for Rightsholders. Upon request by a Rightsholder of a Book, Google will provide a hosted version of such Book for use in conjunction with such Rightsholder’s website, similar to Google’s hosted version of Books in the Google Partner Program. Such hosted version will contain the “look and feel” of the Rightsholder’s website with minimal Google branding, which branding may be tailored by the Rightsholder upon the Rightsholder’s further reasonable request.
3.12 Use of Digital Copies. Except as permitted by Sections 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e) (Google’s Exclusion of Books), 7.2(b)(ix) (Other Uses), 7.2(e)(ii) (Third-Party Required Library Services Provider) or 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), neither Rightsholders nor the Registry may authorize any Person to use Digital Copies of their Books or Inserts made by or for Google without Google’s consent; provided that Rightsholders may authorize any Fully Participating Library to use Digital Copies of their Books or Inserts in such Fully Participating Library’s LDC consistent with such Fully Participating Library’s Digitization Agreement with Google.
3.13 Communication of Rightsholder Directions to Google. Rightsholders shall communicate to the Registry or, at their election and provided that Google implements an Online interface for such purpose, directly to Google, all directions for Removal, exclusion, inclusion, and pricing, and any other directions for Books and
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Inserts provided for in this Settlement Agreement. If, however, a Rightsholder communicates directly with Google, then Google shall, before implementing any such direction, (a) notify the Registry and provide the Registry with the Rightsholder’s contact information and direction and (b) subject to Section 13.2 (Validating and Challenging Claims), receive confirmation from the Registry that (i) for Books, the Person communicating with Google is an appropriate Rightsholder under the Author-Publisher Procedures, and (ii) Google is authorized to implement such direction under this Settlement Agreement, including (for Books) the Author-Publisher Procedures. The Registry will promptly respond to any such notification and request for confirmation from Google and, in any event, within the same period of time as the Registry typically responds to requests directly from Rightsholders to the Registry.
3.14 Advertising Uses. Google may display advertisements on Preview Use pages and other Online Book Pages (“Advertising Uses”). Advertising on general search results pages in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be an “Advertising Use,” even if a single Book is the sole search result of a given search on a search results page. Except as set forth in Section 3.10(c)(iii) (Advertising Content) and Section 3.5(b)(i) (Right to Exclude), this Settlement Agreement does not otherwise limit Google’s right to display advertising anywhere on Google Products and Services.
3.15 Extent of Rights and Authorizations.
(a) Books. A Book Rightsholder’s rights and Google’s authorizations under this Settlement Agreement apply to all of the Protected Expression of such Rightsholder contained in a Book in which such Rightsholder holds a Copyright Interest.
(b) Inserts. A Rightsholder of an Insert has no rights under this Settlement Agreement with respect to any Book or any portion of any Book in which such Insert appears, other than the Insert itself, e.g., a Rightsholder of an Insert has no right to Remove the Book in which his, her or its Insert appears, or to authorize or to prohibit Display Uses of the Book in which his, her or its Insert appears.
(c) Other Content. If content (e.g., text or images) in a Book is (i) in the public domain under the Copyright Act in the United States or (ii) subject to a Copyright Interest not owned by any Rightsholder of such Book or by any Rightsholder of any Insert in such Book, this Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, the use of such content.
ARTICLE IV — ECONOMIC TERMS FOR GOOGLE’S USE OF BOOKS
4.1 Institutional Subscriptions.
(a) General Guidelines for Pricing of Institutional Subscriptions.
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(i) Objectives. The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.
(ii) Parameters. Google and the Registry will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties, the scope of Books available, the quality of the scan and the features offered as part of the Institutional Subscription. Plaintiffs and Google expect that the number of Books available through an Institutional Subscription will change over time. As such, the value and price of Institutional Subscriptions may also change over time.
(iii) FTE Basis. Pricing will be based on FTEs (Full-Time Equivalency). For Higher Education Institutions, FTE is defined as full-time equivalent students.
(iv) Pricing Bands. FTE-based pricing, including pricing bands, may vary across broad categories of institutions. The categories are:
(1) Corporate (may include per seat licensing in addition to FTE);
(2) Higher Education Institutions, which will be sub-divided into sub-categories based on the Carnegie Classifications for Institutions of Higher Education within the United States;
(3) School (K-12) (no remote access without Registry approval);
(4) Government (no remote access without Registry approval) (may include per seat licensing in addition to FTE);
(5) Public (no remote access without Registry approval); and
(6) Additional categories, as agreed between Google and the Registry. Subdividing the market into additional categories may be one mechanism used to ensure broad accessibility of Books to end users.
(v) Versions of Institutional Subscriptions. When Google offers any Institutional Subscription, Google will offer a version of the Institutional
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Subscription that provides access to all Books available for Institutional Subscriptions pursuant to this Settlement Agreement (the “Institutional Subscription Database”) for a fee. In addition, Google may identify Institutional Subscriptions for a small number of discipline-based collections of Books that Google would offer as an alternative to the version of the Institutional Subscription that provides access to the entire Institutional Subscription Database. To provide an incentive for institutions to subscribe to the entire Institutional Subscription Database, Google shall design the pricing of the different versions of the Institutional Subscription such that the price for access to the entire Institutional Subscription Database will be less than the sum of the prices for access to the discipline-based collections.
(vi) Pricing Strategy. Prior to beginning to sell Institutional Subscriptions, Google shall propose an initial pricing strategy and, thereafter, Google shall propose subsequent pricing strategies, consistent with the objectives set forth in Section 4.1(a)(i) (Objectives) (each, a “Pricing Strategy”), to the Registry.
(1) Elements of Pricing Strategy. Each Pricing Strategy shall include:
a) Any discipline-based collections that would be offered as an Institutional Subscription, as an alternative to the version of the Institutional Subscription that provides access to the entire Institutional Subscription Database.
b) A target retail price for each Institutional Subscription for each of the classes of institutions identified in Section 4.1(a)(iv) (Pricing Bands), including Institutional Subscriptions for each of the discipline-based collections that may be offered, Institutional Subscriptions that provide access to the entire Institutional Subscription Database, and any Limited Subscriptions.
c) The period of time over which Google will have the authorization to sell the versions of the Institutional Subscription at such target retail prices.
d) Any expected increases or decreases in the price of each version of the Institutional Subscription at annual anniversary points during the period in which the then-current Pricing Strategy will be in effect.
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e) The amount of discount, if any, that Google is authorized to offer to institutions and to Institutional Consortia. Any discounts above the approved discount require Registry approval.
f) The Price Change Cut Off Date.
(2) Discounting. The initial Pricing Strategy will also include a discount from the List Prices that will be offered for a limited period of time to subscribers. This discount will be defined against the List Price and is designed to encourage potential customers to subscribe. The period for an initial discount will be included in the initial Pricing Strategy.
(3) Duration. The period for the initial Pricing Strategy to be in effect is expected to be between two (2) and three (3) years. Google and the Registry shall agree as to the periods for which subsequent Pricing Strategies will be in effect.
(4) Process.
a) Initial Pricing Strategies. The initial Pricing Strategy must be agreed upon by Google and the Registry before Google sells any Institutional Subscriptions. Google shall submit a proposed initial Pricing Strategy to the Registry by no later than one year after the Effective Date. Following submission of the initial Pricing Strategy, Google and the Registry shall negotiate for a period of up to one hundred and eighty (180) days. If, after one hundred and eighty (180) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on the initial Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution).
b) Subsequent Pricing Strategies. Google shall submit subsequent proposed Pricing Strategies to the Registry at least ninety (90) days prior to the expiration of the then-current Pricing Strategy, and Google and the Registry shall negotiate for a period of up to ninety (90) days. If, after ninety (90) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on such proposed Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution). In the event of such a dispute, the then-current Pricing Strategy will continue to apply unless and until the earlier of (1) Google and the Registry agreeing on a subsequent Pricing Strategy or (2) the Arbitrator rendering a Decision.
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(vii) Comparable Products and Services. FTE-based prices in the initial Pricing Strategy will be based upon then-current prices for comparable products and services, surveys of potential subscribers, and other methods for collecting data and market assessment. Google shall be responsible for collecting data comparing the target retail prices for the versions of the Institutional Subscription to the prices of similar products and services (including by use of a third party to collect such data if the Registry requests that Google use a third party, which third party will be subject to the Registry’s approval not to be unreasonably withheld or delayed) and shall provide such data to the Registry.
(viii) Adjustments to Pricing Strategy.
(1) Google Proposed Adjustments. Google may propose adjustments to the then-current agreed upon Pricing Strategy. If Google and the Registry cannot agree to a change to the Pricing Strategy after negotiating for a period of sixty (60) days after Google’s notice of its proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision; provided, however, that Google and the Registry may agree, or an Arbitrator pursuant to Article IX (Dispute Resolution) may require, that the new pricing be retroactive to sixty (60) days after the date of Google’s notice of adjustments to the then-current agreed upon Pricing Strategy.
(2) Registry Proposed Adjustments. The Registry may propose adjustments to the then-current agreed upon Pricing Strategy. If Google and the Registry cannot agree to a change to the Pricing Strategy after negotiating for a period of sixty (60) days after the Registry’s notice of its proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision. If the renegotiation of the Pricing Strategy concludes, or if the Arbitrator renders a Decision, prior to the Price Change Cut Off Date, then any increase in the price resulting from the renegotiation or Decision will take effect for the academic year first starting after the Price Change Cut Off Date. If the
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renegotiation of the Pricing Strategy concludes, or if the Arbitrator renders a Decision, on or after the Price Change Cut Off Date, then any price increase will take effect not for the academic year first starting after the Price Change Cut Off Date, but in the next following academic year. In addition, any price increase will not apply to any then-existing subscriber contracts until they are renewed or extended. “Price Change Cut Off Date” means a date that is prior to the commencement of the academic year first starting after such date and that is set to provide Google with a reasonable period of time within which to sell the Institutional Subscription for that academic year without an intervening price increase for Institutional Subscriptions, which period of time reasonably approximates the typical sales cycle for comparable products and services.
(ix) Adjunct Products. Google will inform the Registry of any Google Products and Services that Google offers for a fee as an adjunct to any Institutional Subscription or (if Google and the Registry agree to offer Consumer Subscriptions) Consumer Subscription, which product or service meets the following conditions:
(1) the preponderance of the value of such product or service to users of the subscription is realized through access to Books through such subscription, and
(2) such product or service exploits access to Books by users of the subscription in a manner that could not, with similar efforts, be similarly exploited by other entities ((1) and (2) together, an “Adjunct Product”).
(3) The Registry will have the right immediately to renegotiate and, if necessary, resolve pursuant to Article IX (Dispute Resolution), with Google the prices of the applicable Institutional Subscription(s) or Consumer Subscription(s) with which such Adjunct Product is used under the procedures set forth in Section 4.1(a)(viii) (Adjustments to Pricing Strategy), which revised prices will apply prospectively only. Google, at its sole discretion, may choose to remove access to Books as part of the Adjunct Product or modify the Adjunct Product in a manner that ensures that conditions in clauses (1) and (2) above are no longer met if Google wishes to avoid the Registry’s option of renegotiating or resolving pursuant to Article IX (Dispute Resolution). Renegotiation and resolution pursuant to Article IX (Dispute Resolution), as set forth in this Section 4.1(a)(ix) (Adjunct Products), shall be the Registry’s sole remedy and Google’s sole obligation for disputes under this Section 4.1(a)(ix) (Adjunct Products).
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(b) Institutional Consortia. Google may work through Institutional Consortia to sell Institutional Subscriptions.
(c) Intermediaries. Google may work through intermediaries to sell Institutional Subscriptions, subject to Registry approval, which approval shall not be unreasonably withheld or delayed.
(d) Basic Features of Institutional Subscriptions. Institutional Subscriptions will enable users to view, copy/paste, and print pages of a Book, and may enable Book Annotations. With respect to copy/paste, the user will not be able to select, copy and paste more than four (4) pages of the content of a Display Book with a single copy/paste command. Printing will be on a page-by-page basis or a page range basis, but the user will not be able to select a page range that is greater than twenty (20) pages with one print command for printing. Google will include a visible watermark on pages printed from the Institutional Subscription Database, which identifies the material as copyrighted and displays encrypted session identifying information provided by the subscribing institution during such session, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed. Such watermark will not obscure the content of the printed pages.
(e) Institutional Subscription Terms and Conditions. In its terms and conditions applicable to Institutional Subscriptions, (i) Google will (1) limit access to Books to appropriate individuals within the subscriber institution (e.g., in the case of educational institutions, faculty, students, researchers, staff members, librarians, personnel and business invitees of the subscriber and walk-in users from the general public; in the case of corporate or government offices, personnel and business invitees; and, in the case of Public Libraries, library patrons and personnel), (2) permit users to view, copy/paste, and print pages of Books only to the extent authorized under this Settlement Agreement, (3) permit users to make available the Books and Inserts in the Institutional Subscription Database to other users of that Institutional Subscription through hyperlinks, or similar or appropriate technology, when such Books and Inserts are served by Google, for course use (e.g., e-reserves and course management systems), only to the extent authorized under this Settlement Agreement, (4) not prohibit any uses of Books or Inserts that would otherwise be permitted under the Copyright Act without the need for express authorization from the Rightsholder, and (5) include the right for Google to restrict or terminate a user’s account, including additional restrictions on printing and copy/paste, if the user distributes the copyrighted material from a Book in a manner that is prohibited by the terms and conditions or applicable law, and (ii) Google may enable Book Annotations. Prior to Google’s initial launch of the Institutional Subscription, Google will provide to the Registry a copy of the terms and conditions applicable to any Institutional Subscriptions offered by Google.
(f) Subscriber Experience. The experience and rights provided to subscribers and their users under Institutional Subscriptions will be no less favorable to them than the
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experience and rights offered in the Consumer Purchase, except that such experience and rights will be time-limited to the duration of the Institutional Subscription. In addition, and without limiting the foregoing, Institutional Subscriptions must permit searching the full text of Books in the Institutional Subscription Database and, in the case of Higher Education Institutions, permit users to make available the Books and Inserts in the Institutional Subscription Database to other users of the Institutional Subscription through hyperlinks, or similar or appropriate technology, as described in Section 4.1(e) (Institutional Subscription Terms and Conditions).
(g) Beta Testing. Google may provide Institutional Subscriptions to a limited number of institutions as a beta product free of charge prior to the initial launch. Unless otherwise agreed by the Registry, Google shall be authorized to offer Institutional Subscriptions in beta form to up to five (5) Fully Participating Libraries and Cooperating Libraries, up to two (2) Public Libraries, up to two (2) not-for-profit institutions within each of the Carnegie Classifications for Institutions of Higher Education within the United States and, as agreed between Google and the Registry, other libraries. At least one institution from each such category of institutions shall be included in the beta-test group. Google shall provide to the Registry all pricing-related data collected from these beta-test partners to assist in the pricing for the versions of the Institutional Subscriptions. Once the beta Institutional Subscription is launched, Google shall be able to continue to support then-existing beta customers until the earlier of (i) two (2) years from the launch of the beta product (unless a longer period of time is agreed by the Registry) or (ii) launch of the Institutional Subscription.
4.2 Consumer Purchases.
(a) Basic Features of Consumer Purchase. Consumer Purchase will enable purchasers to view, copy/paste and print pages of a Book, and may enable Book Annotations. With respect to copy/paste, the user will not be able to select, copy and paste more than four (4) pages of the content of a Display Book with a single copy/paste command. Printing will be on a page-by-page basis or a page range basis, but the user will not be able to select a page range that is greater than twenty (20) pages with one print command for printing. Google will include a visible watermark on pages printed from the Consumer Purchase, which identifies the material as copyrighted and displays encrypted session identifying information, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed. Such watermark will not obscure the content of the printed pages.
(b) Pricing Options.
(i) Pricing of Consumer Purchases. A Rightsholder may select one of two pricing options for Consumer Purchases:
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(1) Specified Price. In this option, the Rightsholder identifies the price for which it wants its Book authorized for Consumer Purchase to be sold. This pricing option is referred to in this Settlement Agreement as the “Specified Price.” The Specified Price may only be changed by the Rightsholder and is not subject to Article IX (Dispute Resolution).
(2) Settlement Controlled Price. In this option, the Rightsholder permits the price for which its Book authorized for Consumer Purchase is to be sold to be determined by an algorithm (the “Pricing Algorithm”) that Google will design to find the optimal such price for each Book and, accordingly, to maximize revenue for each Rightsholder. This pricing plan is referred to in this Settlement Agreement as the “Settlement Controlled Price,” and is governed by the provisions in Section 4.2(c) (Settlement Controlled Pricing).
(ii) Change of Pricing Option. At any time, the Rightsholder of a Book may switch between the Specified Price and Settlement Controlled Price upon seven (7) days’ prior notice to Google or the Registry.
(iii) Default Pricing Option. If the Rightsholder of a Book has not specifically directed that its Book be sold at a Specified Price, then Consumer Purchase of that Book will be sold at the Settlement Controlled Price.
(c) Settlement Controlled Pricing.
(i) Pricing Bins. Google and the Registry will agree upon a set of predefined prices for Books (“Pricing Bins”), and each Book will be priced at one of those prices. The initial Pricing Bins for Books will be: $1.99, $2.99, $3.99, $4.99, $5.99, $6.99, $7.99, $8.99, $9.99, $14.99, $19.99 and $29.99. Google and the Registry may agree to additional or different Pricing Bins between, below and above these prices at any time. In any event, either Google or the Registry has the option to require renegotiation of the number of Pricing Bins or the prices of the Pricing Bins at the end of the three (3)-year period commencing with the Effective Date, and every four (4) years thereafter. Google or the Registry shall give the other party notice at least ninety (90) days prior to the end of the thencurrent three (3)- or four (4)-year period, as applicable, of its exercise of its option to renegotiate. Such ninety (90)-day period may be extended by mutual written agreement of Google and the Registry. In the event that Google and the Registry cannot agree on changes to the number of Pricing Bins or the prices for each Pricing Bin, as applicable, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). In the event of such a dispute, the then-current number of Pricing Bins and the prices for each Pricing Bin will continue to apply unless and until the earlier of (1) Google and the Registry agreeing to such changes or (2) the Arbitrator rendering a Decision.
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(ii) Pricing and Distribution of Books Into Pricing Bins.
(1) Initial Pricing Bin Distribution. The initial distribution percentages of Settlement Controlled Price Books that Google offers for Consumer Purchase in the Pricing Bins will be: 5% ($1.99), 10% ($2.99), 13% ($3.99), 13% ($4.99), 10% ($5.99), 8% ($6.99), 6% ($7.99), 5% ($8.99), 11% ($9.99), 8% ($14.99), 6% ($19.99) and 5% ($29.99).
(2) Development of Pricing Algorithm and Changes to Pricing Bin Distribution. Google will develop the Pricing Algorithm and analyze sales data to ensure the reasonableness of the Pricing Algorithm. The Pricing Algorithm shall base the Settlement Controlled Price of an individual Book upon aggregate data collected with respect to Books that are similar to such Book. Based on the Pricing Algorithm, Google may change the price of an individual Book over time in response to sales data and in order to collect additional data to establish the optimal price for such Book. The distribution of Books sold on the basis of Settlement Controlled Prices among the Pricing Bins may change over time as the prices of individual Books are adjusted based on the Pricing Algorithm.
(3) Validation of Pricing Algorithm. The Registry has the right to validate, through the use of a reasonable number of third-party experts, the reasonableness of the Pricing Algorithm and to verify that the conclusions it produces are statistically valid; provided that (a) Google has no obligation to disclose the Pricing Algorithm or any other Confidential Information of Google to the Registry or any third-party experts retained by the Registry, except as necessary for the Registry’s experts to validate the reasonableness of the Pricing Algorithm and to verify its conclusions, (b) Google will not be required to disclose Confidential Information of Google not originally developed for the Pricing Algorithm, (c) Google may not rely on or introduce into evidence any such non-disclosed Confidential Information in any arbitration pursuant to Article IX (Dispute Resolution) regarding the reasonableness of the Pricing Algorithm, and (d) Google bears the burden of proving that the Pricing Algorithm is reasonable. The Registry’s experts’ receipt of any Confidential Information of Google related to the Pricing Algorithm will be subject to strict non-disclosure agreements, provided that such experts may disclose their conclusions to the Registry and the Registry may disclose their conclusions to Rightsholders.
(4) Disputes. Disputes regarding the Pricing Algorithm or its application shall be resolved pursuant to Article IX (Dispute Resolution).
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(iii) Provision of Settlement Controlled Prices to Registry. Google shall determine and provide to the Registry both the Settlement Controlled Price for all Settlement Controlled Price Books and what would be the Settlement Controlled Price for every Specified Price Book, as if the Rightsholder of such Specified Price Book had selected the Settlement Controlled Price option. Such information is the Confidential Information of Google. 4.3 Preview Uses. (a) Preview Use Permitted. Google may offer a free Preview Use to allow users to sample a Book prior to making a purchase decision, unless a Rightsholder of a Book directs Google or the Registry not to allow Preview Use of that Book. (b) Default Settings for Preview Use. The default settings for Preview Use will be as follows:
(i) Standard Preview. Except as set forth below in this Section 4.3(b) (Default Settings for Preview Use), the default Preview Use is Standard Preview.
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(1) Standard Preview. “Standard Preview” means that Google may display (in addition to the table of contents, title page, copyright page and other pages that appear prior to the table of contents, and the index) up to twenty percent (20%) of the pages of a Book to a user but no more than five (5) adjacent pages at a time (i.e., when a user lands on a given page from a search or navigation, the user will be limited to viewing no more than four (4) additional adjacent pages at a time), before or after which no fewer than two (2) pages are blocked; provided that, for Fiction, Google will block the final five percent (5%) of the Book’s pages (or a minimum of the final fifteen (15) pages in the Book). In addition, “Standard Preview” for Fiction means that, at Google’s option, Google may display up to twenty percent (20%) of the pages of a Book to a user, subject to the following: (i) Google may display up to five percent (5%) of a Fiction Book, or fifteen (15) pages, whichever is less, adjacent to where a user lands on a given page from a search or navigation and (ii) Google will block the final five percent (5%) of the Book’s pages (or a minimum of the final fifteen (15) pages in the Book). As used in this Section 4.3(b)(i)(1) (Standard Preview), “Fiction” means Books associated with BISAC codes for Fiction, Juvenile Fiction, Comics & Graphic Novels, Drama, Humor, Literary Collections and Poetry, and, for any Books that do not have a BISAC code, any Books comprising works of imaginative narration. If the Registry disagrees with Google’s categorization of a Book as Fiction, the Registry may notify Google and if Google and the Registry do not agree on whether a Book is Fiction, the dispute shall be resolved pursuant to Article IX (Dispute Resolution). If Google and the Registry determine, or if an Arbitrator decides, that a Book was mistakenly categorized to be Fiction or non-Fiction, then Google promptly shall change the categorization of the Book after the determination or decision, and such change, if made, shall be the Rightsholder’s and the Registry’s sole remedy and Google’s sole obligation for such mistaken categorization.
(2) Adjustments to Percentages. Rightsholders may increase the percentages in Fixed Preview, Standard Preview and Continuous Preview.
(3) No Copy/Paste, Print or Book Annotations. Unless approved by the Registry or the Rightsholder, Google will not offer to users copy/paste, print or Book Annotation functionalities as part of Preview Uses.
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(ii) No Preview. The default setting for the categories of Books listed on Attachment F (Preview Uses) under the heading “No Preview” is no Preview Use (“No Preview”).
(iii) Fixed Preview. The default setting for the categories of Books listed on Attachment F (Preview Uses) under the heading “Fixed Preview” is Fixed Preview. “Fixed Preview” means that Google may display (in addition to the table of contents, title page, copyright page and other pages that appear prior to the table of contents, and the index) up to ten percent (10%) of the pages of a Book to a user and such pages are fixed (i.e., they do not vary from user to user or depend on a user’s search). Google will choose the pages displayed in Fixed Preview unless the Registry develops a mechanism to identify for Google particular pages selected by the Rightsholder, in which case the pages will be those chosen by the Rightsholder.
(iv) Determination of Categories. Google shall use BISAC codes or an equivalent classification scheme in order to determine whether a Book is in a category listed on Attachment F (Preview Uses). Google shall not be responsible for errors in its determination of whether a Book is in a particular category listed on Attachment F (Preview Uses). Upon notification by the Registry or the Rightsholder that Google has inaccurately determined whether a Book is in a category listed on Attachment F (Preview Uses), Google shall adjust the amount of the Book available through Preview Use or Fixed Preview for such Book in accordance with the correct category. Such adjustment by Google shall be Google’s sole obligation and the sole remedy for any errors in determining the category of a Book.
(c) Rightsholder Options for Preview Use. Regardless of the default setting for Preview Use of a Book set forth in Section 4.3(b) (Default Settings for Preview Use), a Rightsholder will be able to choose from the following settings for Preview Use for any Book:
(i) Fixed Preview.
(ii) Standard Preview.
(iii) Continuous Preview. “Continuous Preview” means that Google may display up to ten percent (10%) of the pages of a Book to a user without the adjacent page limitations of Standard Preview.
(d) List of Blocked Preview Use Pages. Unless the Rightsholder has authorized display of one hundred percent (100%) of the pages of a Book in Preview Use, Google will maintain a list of Book pages that cannot be viewed in any Preview Use. The list will consist of at least five percent (5%) of the pages of a Book, which blocked
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pages shall be selected by Google unless the Registry develops a mechanism to identify for Google particular pages selected by the Rightsholder totaling not more than five percent (5%), in which case the blocked pages will be those chosen by the Rightsholder.
(e) Google Tests.
(i) Fixed Preview Books. For Books in categories listed on Attachment F (Preview Uses) as Fixed Preview, Google may conduct tests in consultation with the Registry to determine if another Preview Use category increases sales and revenues of such Books. For purposes of such tests, Google may randomly select no more than five percent (5%) of the Books within a category in Attachment F (Preview Uses) for which only Fixed Preview is permitted and display those Books through Standard Preview, Continuous Preview or No Preview for a limited time only as necessary to gather statistically significant information as to which Preview Uses increases sales and revenues of such Book. Google shall present the results of these tests to the Registry. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) to move Books from Fixed Preview to Standard Preview, Continuous Preview or No Preview taking into account the data provided by such tests and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books that are currently included in Consumer Purchase will be increased by moving from Fixed Preview to Standard Preview, Continuous Preview or No Preview and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders
(ii) No Preview Books. For Books in categories listed on Attachment F (Preview Uses) as No Preview, Google may conduct tests in consultation with the Registry to determine which Preview Use setting increases Book sales and revenues for Books in the different Pricing Bins set forth in Section 4.2(c)(i) (Pricing Bins). For purposes of such tests, Google may randomly select no more than five percent (5%) of the Books within a category in Attachment F (Preview Uses) for which No Preview is permitted and display those Books through Fixed Preview, Standard Preview or Continuous Preview for a limited time only as necessary to gather statistically significant information as to which Preview Use increases sales and revenues of such Book. At the Registry’s request, during the first ten (10) years after the Effective Date and thereafter by agreement between Google and the Registry, Google shall collect and provide to the Registry empirical data concerning the extent to which each Preview Use has an effect on Book sales and revenues (including data on the number of accesses and purchases of particular Books and categories of Books), to enable Rightsholders and the
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Registry to change the Preview Use settings or to modify the percentage of a Book displayed through Preview Use for Books or categories of Books. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) to move Books from No Preview to one of the other Preview Use settings taking into account the data provided by such tests and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books included in Consumer Purchase will be increased by moving from No Preview to one of the other Preview Use settings and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders.
(iii) Standard, Continuous, Fixed Preview or No Preview Books. Upon request of the Registry, for Books in any Preview Use category, Google shall make commercially reasonable efforts to conduct tests to determine if another Preview Use setting increases sales and revenues of such Books. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) for any category of Books by choosing from among the Preview Use settings, taking into account the data provided by the tests conducted pursuant to this Section 4.3(e) (Google Tests) and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books will be increased by changing the Preview Use setting and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders.
(iv) Books Excluded from Testing. In no event shall any tests under clauses (i), (ii) or (iii) above either (1) make Display Uses of Books that the Rightsholder has expressly excluded from Display Uses or that the Registry reasonably requests to be excluded or (2) change the Preview Use of Books from settings (a) expressly set by the Rightsholder or (b) expressly set by the Registry by modification of Attachment F (Preview Uses) under clause (iii) above.
(v) Registry’s Ability to Adjust Preview Use Settings. In addition to amendments to Attachment F (Preview Uses) described in clauses (i), (ii) and (iii) above, the Registry may adjust the Preview Use setting for a particular Book in exceptional circumstances for good cause shown.
(f) Preview Use Pages Served on Non-Google Websites. When Google makes any Preview Use of a Book as authorized under this Settlement Agreement and allows third parties to display Preview Use pages served by Google on non-Google
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websites, then Google agrees to include Metadata about that Book, including the title and author of the Book.
4.4 Advertising Revenue Model. Revenues generated from Advertising Uses will be allocated between Google and the Rightsholders in accordance with Section 4.5(a)(ii) (Net Advertising Revenues).
4.5 Standard Revenue Splits and Discounting.
(a) Obligation to Pay Revenue Share.
(i) Net Purchase Revenues. Google shall pay to the Registry, on behalf of the Rightsholders, the Standard Revenue Split for Purchases. The “Standard Revenue Split for Purchases,” paid by Google to Rightsholders, through the Registry, is seventy percent (70%) of Net Purchase Revenues.
(ii) Net Advertising Revenues. Google shall pay to the Registry, on behalf of the Rightsholders, the Standard Revenue Split for Advertising. The “Standard Revenue Split for Advertising,” paid by Google to Rightsholders, through the Registry, is seventy percent (70%) of Net Advertising Revenues.
(b) Discounting and Subsidies.
(i) Temporary Discounts. Google may provide temporary discounts off the List Prices from time to time at its sole discretion. If Google elects to provide such discounts, the Standard Revenue Split for Purchases paid to the Registry for the benefit of the Rightsholders will be based on the List Prices, unless otherwise set forth in this Section 4.5(b) (Discounting and Subsidies) or unless otherwise agreed by Google and the Registry.
(ii) Consumer Purchases. The Registry may authorize Google to make Books available through Consumer Purchases at discounts of up to forty percent (40%) off the List Price, subject to notification of such discount to the Registered Rightsholders of the Book, with an opportunity for any such Rightsholder not to approve such discount. If Google sells Books at such a discounted price, the Standard Revenue Split for Purchases will be based on such discounted price.
(iii) Use of Intermediaries for Institutional Subscription Sales Generally. Google may offer a discount of up to ten percent (10%) off the List Prices for Institutional Subscriptions for any Institutional Subscriptions sold through intermediaries.
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(iv) Sales of Institutional Subscriptions through Institutional Consortia. Approved discounts, if any, that Google is authorized to offer to an Institutional Consortium or its members will be included as part of the Pricing Strategy. Additional discounts will require Registry approval. Unless otherwise agreed upon by the Registry, Google is only authorized to offer discounts to Institutional Consortia if members of the Institutional Consortium purchase Institutional Subscriptions for at least seventy percent (70%) of the FTEs (i.e., full-time equivalent students) of the members of the Institutional Consortium. For purposes of this Section 4.5(b)(iv) (Sales of Institutional Subscriptions through Institutional Consortia), absent agreement of the Registry, Google may not offer such discount to any Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective and that was formed for the primary purpose of entering into an Institutional Subscription agreement with Google. Google will notify the Registry no less than thirty (30) days prior to entering into an Institutional Subscription agreement, with an approved Institutional Consortium discount, with an Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective.
(v) Sale of Consumer Purchases through Affiliate Programs. With respect to sales of Books through Consumer Purchase through an Affiliate Program, Google may deduct from the money otherwise owed to the Registry for the benefit of the Rightsholders from such sale pursuant to Section 4.5(a)(i) (Net Purchase Revenues), up to three and three-quarters percent (3.75%) of the List Price as compensation actually paid through the Affiliate Program; provided, however, that such deduction will be made only to the extent and in an amount equal to one-half (1/2) the compensation actually paid by Google through the Affiliate Program. “Affiliate Program” means a program by which Google authorizes third parties to link their websites to Google Products and Services using specially formatted links and pays such third parties referral fees for sales of Books through Consumer Purchase to users referred to Google through such links.
(vi) Subsidies for Fully Participating Libraries and Cooperating Libraries. Google may subsidize the purchase of Institutional Subscriptions by Fully Participating Libraries and Cooperating Libraries and the amount paid to the Registry, on behalf of Rightsholders, will be as if no such subsidy had been provided.
(vii) Rightsholders’ Consumer Subscription Discount. If and at such time as a Consumer Subscription is available from Google pursuant to Section 4.7(d) (Consumer Subscription Models), individual Rightsholders may, at the
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Registry’s discretion, be offered a discount off of the price for such Consumer Subscription, which discount is subject to the approval of Google and the Registry.
(c) Sales and Other Taxes. In all cases, Net Purchase Revenues and Net Advertising Revenues shall not include sales or other government charges or taxes. Google shall charge any applicable sales or other government charges or taxes in addition to the List Price or any other price authorized pursuant to this Settlement Agreement.
4.6 Payment Terms.
(a) Payment Terms. Google shall remit payment to the Registry under this Article IV (Economic Terms for Google’s Use of Books) within (i) sixty (60) days after the end of each calendar quarter for payments made with respect to Net Advertising Revenues and Net Purchase Revenues received by Google during the first full twelve (12) months after the Effective Date, and (ii) sixty (60) days after the end of each calendar month for payments made with respect to Net Advertising Revenues and Net Purchase Revenues received by Google thereafter. Payments to the Registry shall be made either by check or (if by wire transfer) pursuant to the wire transfer instructions provided by the Registry.
(b) Exceptions. Notwithstanding the foregoing provisions of Section 4.5 (Standard Revenue Splits and Discounting) and this Section 4.6 (Payment Terms), Google shall not be required to pay the Registry for (i) any purchase of or access to Books through any fraudulent or invalid means, including the fraudulent use of credit cards or other means of payment, as determined by Google in its sole discretion, (ii) purchases that are refunded prior to Google’s payment pursuant to Section 4.6(a) (Payment Terms), or (iii) purchases that are subject to a credit card charge back. Google reserves the right to grant refunds in its sole discretion. Google reserves the right to withhold payment to the Registry due to any of the foregoing, pending Google’s reasonable investigation. The Registry will cooperate with Google in its investigation of any of the foregoing. Google will not seek any refunds from the Registry or Rightsholders for amounts once paid to the Registry.
(c) Fraud. Neither Google, the Registry, nor Plaintiffs shall, nor shall each authorize or encourage any third party to, directly or indirectly purchase or otherwise obtain access to Books through any automated, deceptive, fraudulent or other invalid means, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of software or credit cards.
(d) Taxes. Google and the Registry each agree to pay all applicable taxes or charges imposed on them by any government entity in connection with all matters contemplated by this Settlement Agreement.
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(e) Audit Rights. The Registry may, upon thirty (30) days’ prior notice and at its own expense, retain a nationally recognized independent and mutually-acceptable independent auditor (whose fees are not contingency based), under a duty of confidentiality to Google, to review and audit Google’s relevant records to confirm the payments due under Section 4.5 (Standard Revenue Splits and Discounting). The audit shall: (a) be subject to Google’s security and confidentiality requirements; (b) occur no more than once every calendar year and not during the first or last three (3) weeks of a calendar quarter; (c) transpire during Google’s normal business hours; and (d) cover a period not to exceed the previous four (4) calendar years. Google will promptly pay to the Registry the amount of any underpayment determined by the audit and the Registry will promptly pay to Google (or Google may offset) the amount of any overpayment determined by the audit. In addition, if the audit reveals an underpayment of five percent (5%) or more in the payments for any calendar quarter, then Google shall pay for the reasonable costs associated with the audit. The accounting firm may only disclose to the Registry whether or not Google is in compliance with its payment obligations under Section 4.5 (Standard Revenue Splits and Discounting) and, if Google is not in compliance, the amount of any underpayment or overpayment and supporting calculations.
4.7 New Revenue Models. The Registry and Google may, over time, agree to new revenue models, and discount programs (if any) for such revenue models, including the following:
(a) Print on Demand (“POD”) - POD copies of Books distributed by third parties. A Book’s availability through such POD program would not, in and of itself, result in the Book being classified as Commercially Available.
(b) Custom Publishing - Per-page pricing of Books, or portions thereof, for course materials, and other forms of custom publishing for the educational and professional markets.
(c) PDF Download - Downloadable PDF versions of Books.
(d) Consumer Subscription Models – An individual version of an Institutional Subscription (“Consumer Subscription”).
(e) Summaries, Abstracts and/or Compilations of Books.
Google may not offer any new revenue models with respect to Books without authorization from the Registry or the Rightsholder.
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4.8 Public Access Service.
(a) Public Access Service.
(i) Free Public Access Service. Google may provide the Public Access Service to each not-for-profit Higher Education Institution and Public Library that so requests at no charge (and without any payment to the Rightsholders, through the Registry or otherwise (other than as set forth in Section 4.8(a)(ii) (Printing)) as follows:
(1) in the case of not-for-profit Higher Education Institutions that do not qualify as Associate’s Colleges pursuant to the Carnegie Classification of Institutions of Higher Education, one computer terminal for every ten thousand (10,000) Full-Time Equivalency (i.e., full-time equivalent students) at each such institution (which computer terminal may change from time to time);
(2) in the case of not-for-profit Higher Education Institutions that qualify as Associate’s Colleges pursuant to the Carnegie Classification of Institutions of Higher Education, one computer terminal for every four thousand (4,000) Full-Time Equivalency (i.e., full-time equivalent students) at each such institution (which computer terminal may change from time to time); and
(3) in the case of each Public Library, no more than one terminal per Library Building.
(ii) Printing. Google shall design the Public Access Service to enable users at a not-for-profit Higher Education Institution to print pages from Display Books for a per-page fee, and to enable users at a Public Library to print pages from Display Books for a per-page fee to the extent that such Public Library offers per-page printing services for a fee for other products and services. The Registry shall set a reasonable fee for such printing. Google shall collect all such printing fees and shall pay them to the Registry in accordance with the Standard Revenue Split for Purchases.
(iii) Additional Public Access Service. The Registry and Google may agree that Google may make available the Public Access Service to one or more Public Libraries or not-for-profit Higher Education Institutions either for free or for an annual fee, in addition to the Public Access Service provided under Section 4.8(a)(i) (Free Public Access Service).
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(b) Commercial Public Access Service. The Registry and Google may agree to make a commercial public access service available to copy shops and other entities for an annual fee per concurrent user and a fee per printed page.
4.9 Economic Terms Renegotiation. Unless otherwise agreed by the Registry and Google, the economic terms pertaining to any new Revenue Models agreed pursuant to Section 4.7 (New Revenue Models) may, at the option of Google or the Registry, be renegotiated at the end of the three (3)-year period commencing with the Effective Date, and every four (4) years thereafter, or as otherwise mutually agreed by Google and the Registry. Google or the Registry shall give the other party notice at least ninety (90) days prior to the end of the then-current three (3)- or four (4)-year period, as applicable, of its exercise of its option to renegotiate. Such ninety (90)-day period may be extended by mutual written agreement of Google and the Registry. If the renegotiation is not successful, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). The then-current economic terms will apply unless and until the earlier of (a) Google and the Registry agreeing to such renegotiated terms or (b) the Arbitrator rendering a Decision. Without limiting the foregoing, the term “economic terms,” as used in this Section 4.9 (Economic Terms Renegotiation), does not include the Standard Revenue Split for Advertising or the Standard Revenue Split for Purchases.
ARTICLE V — OTHER SETTLEMENT BENEFITS
5.1 Cash Payment to Class Members Whose Books and Inserts Have Been Digitized.
(a) Cash Payments. For every Principal Work, Entire Insert or Partial Insert that Google Digitized prior to the Opt-Out Deadline without the Rightsholder’s authorization and that is the subject of a validated claim pursuant to Article XIII (Settlement Administration Program), Google will make a Cash Payment to the Settlement Fund of at least sixty United States dollars (U.S. $60) per Principal Work, fifteen United States dollars (U.S. $15) per Entire Insert, and five United States dollars (U.S. $5) per Partial Insert (each, a “Cash Payment”). Such Cash Payments shall be distributed to the Rightsholders in accordance with the Plan of Allocation and the Author-Publisher Procedures. Only one Cash Payment will be made per Principal Work, Entire Insert or Partial Insert regardless of the number of times that Google has Digitized such Principal Work or Insert and regardless of the number of Books in which such Principal Work or Insert appears. If a Cash Payment is made for a Book, then no Cash Payment will be made for any portions of such Book that are used as Inserts. If a soft cover Book Digitized by Google and a hard cover Book Digitized by Google contain the same Principal Work, if the two (2) Books do not contain additional or different Protected Expression, only one Cash Payment for the Principal Work will be made even if the soft cover Book and hard cover Book have different ISBNs. A Rightsholder may claim either a Cash Payment for a Principal Work or a Cash Payment for any Expression
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from such Principal Work that is an Entire Insert or Partial Insert in any other Book, but not both.
(b) Funding of Cash Payments. To fund the Cash Payments, Google shall pay a minimum of forty-five million United States dollars (U.S. $45 million) into the Settlement Fund. If the total Cash Payments to be made in accordance with Section 5.1(a) (Cash Payments) exceed such amount, then Google shall pay to the Settlement Fund, in addition to such amount, the amount necessary to make all Cash Payments.
(c) Distribution of Overage. If the amount distributed from the Settlement Fund to Rightsholders under Section 5.1(a) (Cash Payments) is less than forty-five million United States dollars (U.S. $45 million), then the remaining funds shall be reallocated in accordance with the Plan of Allocation.
5.2 Payment For Registry, Notice and Claims Administration. In addition to the Cash Payments provided for in Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized), Google shall pay into the Settlement Fund thirty-four million five hundred thousand United States dollars (U.S. $34.5 million). Plaintiffs will use all such funds for Administrative Costs.
5.3 Timing of Payments under Sections 5.1 and 5.2.
(a) Initial Settlement Deposit. No later than ten (10) Business Days after the Settlement Agreement Date, Google shall deposit the amount of twelve million United States dollars (U.S. $12 million) (the “Initial Settlement Deposit”) into an interest bearing escrow account by wire transfer to the Depository Bank. The Initial Settlement Deposit shall be held in escrow in the Settlement Fund and administered by the Settlement Administrator, Class Counsel and the Depository Bank, pursuant to an escrow agreement approved by Class Counsel and Google and subject to Section 5.3(f) (Investment). Pursuant to the terms of the escrow agreement, upon the Effective Date, any and all rights of Google to the Initial Settlement Deposit and any interest or income earned thereon shall cease to exist. Consequently, the terms of the escrow agreement will provide that, as of the Effective Date, the entire balance of the Initial Settlement Deposit shall be in the sole control of Class Counsel, subject to Section 5.3(d) (Limitation of Use).
(b) Final Settlement Deposit. No later than ten (10) Business Days after the Effective Date, Google shall deposit the amount of sixty-seven million five hundred thousand United States dollars (U.S. $67.5 million) (the “Final Settlement Deposit”) in the Settlement Fund by wire transfer to the Depository Bank. The Final Settlement Deposit consists of the balance of the amount owed under Sections 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) and 5.2 (Payment for Registry, Notice and Claims Administration).
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(c) Supplemental Deposit. In the event Google is required to make additional Cash Payments pursuant to the second sentence of Section 5.1(b) (Funding of Cash Payments), Google shall deposit in the Settlement Fund an amount sufficient to fund the additional Cash Payments (“Supplemental Deposit”) by wire transfer to the Depository Bank, within ten (10) Business Days after the later of (i) the date on which the Registry issues to the Plaintiffs and Google its final report regarding Cash Payments pursuant to Section 13.5 (Final Report Regarding Cash Payments) or (ii) the Effective Date.
(d) Limitation of Use. Except as otherwise provided in this Settlement Agreement, no disbursement or other use of any portion of the Settlement Fund shall be made without approval of the Court.
(e) Designation. The Settlement Fund is intended as, and shall be, a separate escrow fund of moneys held at Depository Bank and shall qualify as a “qualified settlement fund” within the meaning of Treasury Regulation Section 1.468B-1. Class Counsel or its designee shall be the “administrator” of the Settlement Fund within the meaning of Treasury Regulation Section 1.468B-2(k)(3). Class Counsel or its designee shall apply, or shall cause application to be made, to the Internal Revenue Service for an employer identification number on behalf of the Settlement Fund and shall further cause to be prepared on behalf of the Settlement Fund any and all required tax returns. Class Counsel or its designee shall file such tax returns with all appropriate tax authorities and shall cause any taxes shown due on such returns or otherwise and payable by the Settlement Fund to be paid to the United States Treasury or other taxing authority on behalf of the Settlement Fund from the funds on deposit in the Settlement Fund. Class Counsel or its designee shall do or cause to be done any and all other acts as may be reasonably required to cause the Settlement Fund to qualify and remain qualified as a “qualified settlement fund” as described above.
(f) Investment. Until such time after the Effective Date as the Settlement Fund is distributed to Rightsholders consistent with the terms of this Settlement Agreement and as otherwise ordered by the Court, the Settlement Fund shall be invested and reinvested by Class Counsel in United States Treasury Bills, Notes or other obligations of the United States or its instrumentalities of no more than six (6) months’ duration, except that such portions of the Settlement Fund as may reasonably be needed to pay current Administrative Costs, including expenses associated with providing notice of the Settlement to the Settlement Class, or payment of taxes arising with respect to income earned by the Settlement Fund (including the reasonable expenses of a tax attorney or consultant and mailing and distribution costs and expenses related to filing tax returns), may be held in the form of cash or money market instruments. All interest and gains earned on the Settlement Fund or any portion thereof shall become and remain a part thereof. No party shall be responsible for any losses, principal or otherwise, of the Settlement Fund.
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(g) Payment of Administrative Costs. Prior to the Effective Date, disbursements may be made from the Initial Settlement Deposit for reasonable expenses actually incurred in paying Administrative Costs, in a total amount not to exceed twelve million United States dollars (U.S. $12 million) without further order of the Court, and the amounts for Administrative Costs incurred (including accrued-but-not-yet-paid expenses) shall not be refundable to Google in the event this Settlement Agreement is disapproved, voided, or otherwise fails to become final. No other payments, disbursement, or transfers of any kind from the Settlement Fund, including Class Counsel’s attorneys’ fees and costs of litigation, shall be made prior to the Effective Date without leave of Court for good cause shown. Google shall have no responsibility for the administration, operation, investment or distribution of the Settlement Fund. Plaintiffs shall use commercially reasonable efforts to minimize expenditures from the Settlement Fund.
(h) Google Rights and Obligations. Google shall not have any responsibility to make any filings relating to the Settlement Fund, and Google shall have no responsibility to pay taxes, including interest and penalties due thereon, on interest earned by the Settlement Fund. In the event the Settlement is not approved by the Court or is otherwise terminated, the Settlement Fund (less any Administrative Costs incurred) shall be promptly returned to Google, and in such event Google shall be responsible for payment of all taxes on interest earned on the Settlement Fund after the date of such return.
5.4 Plan of Allocation. The Plan of Allocation sets forth the plan of allocating payments Google makes to or for the benefit of Registered Rightsholders under Sections 4.1 (Institutional Subscriptions), 4.2 (Consumer Purchases), 4.4 (Advertising Revenue Model), 4.7 (New Revenue Models), 4.8 (Public Access Service) and 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized). The Registry shall make payments to Registered Rightsholders from amounts received by it pursuant to Article IV (Economic Terms for Google’s Use of Books), or shall cause payments to be made from the Settlement Fund as provided in the Plan of Allocation and the Registry shall be responsible for correcting or causing to be corrected any errors in making such payments.
5.5 Attorneys’ Fees. Counsel for the Author Sub-Class shall apply to the Court for an award of attorneys’ fees and reimbursement of expenses in a total amount not to exceed thirty million United States dollars (U.S. $30 million). Google has agreed to pay those amounts over and above the other consideration to the Settlement Class, and agrees not to undermine in any way, or encourage anyone else to undermine in any way, the petition for attorneys’ fees filed by Counsel for the Author Sub-Class so long as such petition seeks fees and reimbursement of expenses in the amount of thirty million United States dollars (U.S. $30 million). In no event will Google be obligated to pay any attorneys’ fees and expenses for Counsel for the Author Sub-Class in excess of thirty
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million United States dollars (U.S. $30 million). Attorneys’ fees and expenses consistent with this Section 5.5 (Attorneys’ Fees) that are granted by the Court shall be paid by the Depository Bank within ten (10) Business Days after the Effective Date by wire transfer to counsel for the Author Sub-Class.
ARTICLE VI — ESTABLISHMENT AND CHARTER OF REGISTRY
6.1 Functions. Before the Effective Date, Plaintiffs will establish a registry that:
(a) is authorized to act on behalf of Rightsholders as set forth in this Settlement Agreement,
(b) will own and maintain a rights information database for Books and Inserts and their authors and publishers,
(c) will attempt to locate Rightsholders with respect to Books and Inserts,
(d) will, on behalf of Rightsholders, receive payments from Google under this Settlement Agreement and distribute those payments to Registered Rightsholders in accordance with this Settlement Agreement, the Plan of Allocation and the AuthorPublisher Procedures,
(e) will assist in the resolution of disputes between Rightsholders, and
(f) will have such other responsibilities (i) as are set forth in this Settlement Agreement and (ii) as the Charter may permit or as the Board of Directors of the Registry may determine are consistent with the Registry’s functions and are not inconsistent with this Settlement Agreement.
6.2 Charter.
(a) Not-For-Profit Entity. The Registry will be organized and operated as a not-for-profit entity, and all funds received by the Registry under this Settlement Agreement will be for the exclusive direct or indirect benefit of the Rightsholders, subject to the restrictions herein.
(b) Organizational Structure. The Registry will be organized on a basis that allows the Registry, among other things, to (i) represent the interests of Rightsholders in connection with this Settlement Agreement, (ii) respond in a timely manner to requests by Google, Fully Participating Libraries and Cooperating Libraries, and (iii) to the extent permitted by law, license Rightsholders’ U.S. copyrights to third parties. The Registry will have equal representation of the Author Sub-Class and the Publisher Sub-Class on its Board of Directors, with each act of the Board requiring a majority of the directors, with such majority including at least one director who is a representative of the Author Sub-
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Class and one director who is a representative of the Publisher Sub-Class. The Charter will also direct the Registry to follow the guidelines in this Settlement Agreement regarding Unclaimed Funds and Public Domain Funds described in Section 6.3 (Unclaimed Funds and Public Domain Funds). In addition, the Charter will prohibit the Registry from coordinating Rightsholders for purposes of representing them as a subgroup regarding any matter under this Settlement Agreement, or working with any subgroup of Rightsholders to exclude their Books from Display Uses or Non-Display Uses, or to advocate that any sub-group of Rightsholders decrease its participation in the Settlement in any manner. Notwithstanding the foregoing, nothing herein shall limit or restrict the Registry from being able to represent the interests of all Author Sub-Class members as a sub-group or all Publisher Sub-Class members as a sub-group.
(c) Registry Commitments. The Plaintiffs shall cause the Registry (i) to ratify this Settlement Agreement at the first meeting of its Board of Directors; (ii) to adopt a resolution by which the Registry shall become a signatory to this Settlement Agreement; (iii) to adopt a Certificate of Incorporation and bylaws that implement the requirements of Sections 6.1 (Functions), 6.2 (Charter) and 6.3 (Unclaimed Funds and Public Domain Funds); and (iv) to not take any act inconsistent with its obligations under this Settlement Agreement. Google will have the right to approve such Certificate of Incorporation and bylaws for conformance with the foregoing commitments prior to their filing or adoption (as the case may be), such approval not to be unreasonably withheld or delayed.
6.3 Unclaimed Funds and Public Domain Funds.
(a) Unclaimed Funds.
(i) Unclaimed Funds-Non-Subscription Revenue Models. Any revenues paid to the Registry and due to Rightsholders of Books under Sections 4.2 (Consumer Purchases), 4.4 (Advertising Revenue Model), 4.8(a)(ii) (Printing), and, if agreed, 4.7(a) – (c) (Print on Demand, Custom Publishing and PDF Download, respectively), but that are unclaimed by such Rightsholders within five (5) years of the last date of the reporting period in which the Books earned such revenues (“Unclaimed Funds – Non-Subscription”), will be distributed by the Registry in accordance with the Plan of Allocation as soon as practicable following the end of such five (5)-year period as follows: (1) first, to defray reasonable and necessary operational expenses of the Registry that are related to its performance, on behalf of the Rightsholders, of the functions described in Section 6.1 (Functions) and, as determined by the Board of Directors of the Registry in the exercise of its fiduciary duties, maintain reserves for such expenses on a proportional revenue basis with respect to revenue from licensees of the Registry other than Google, (2) then, any remaining Unclaimed Funds will be paid on a proportional basis to the Registered Rightsholders until all such Rightsholders of a Book have received, in the aggregate, together with all amounts paid to such Rightsholders under Section 4.5(a) (Obligation to Pay
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Revenue Share), seventy percent (70%) of the Gross Revenues received by Google for such Book, and (3) then, for any Unclaimed Funds remaining thereafter, to not-for-profit entities described in Section 510(c)(3) of the Internal Revenue Code chosen by the Registry after consultation with Google and, acting through the Designated Representative, the Participating Libraries and the Cooperating Libraries. The Registry shall choose not-for-profit entities described in Section 501(c)(3) of the Internal Revenue Code that directly or indirectly benefit the Rightsholders and the reading public, and will include entities that advance literacy, freedom of expression, and/or education, and, for avoidance of doubt, will not include the Authors Guild, the Association of American Publishers or other trade organizations. “Gross Revenues” means all of the revenues received by Google from the Revenue Models identified in this Section 6.3(a) (Unclaimed Funds), and only such Revenue Models.
(ii) Unclaimed Funds-Subscription Revenue Models. Any revenues paid to the Registry and due to Rightsholders of Books under Section 4.1 (Institutional Subscriptions) and, if agreed, Section 4.7(d) (Consumer Subscription Models), but that are unclaimed by such Rightsholders within (5) years of the last date of the reporting period in which the Books earned such revenues (“Unclaimed Funds-Subscription”), will be distributed by the Registry as soon as practicable in accordance with the Plan of Allocation following the end of such five (5)-year period.
(b) Public Domain Funds. Funds that may be mistakenly paid by Google to the Registry for books that are in the public domain under the Copyright Act in the United States (“Public Domain Funds”) will be distributed according to the guidelines set forth in this Section 6.3(b) (Public Domain Funds). If Google pays the Registry Public Domain Funds derived from Institutional Subscriptions or Consumer Subscriptions, then those funds will be distributed on a proportional revenue basis among Registered Rightsholders whose Books are included within each subscription. If Google pays the Registry Public Domain Funds from Consumer Purchases, Advertising Uses, per-page printing fees pursuant to Section 4.8(a)(ii) (Printing), or Revenue Models set forth in Sections 4.7(a) – (c) (Print on Demand, Custom Publishing and PDF Download, respectively) (if Google and the Registry agree to implement such Revenue Models) and such funds have not yet been paid to a Registered Rightsholder, then the Registry will return those Public Domain Funds to Google for distribution, at Google’s option, to a notfor-profit entity or to any consumer that may have purchased access to a book that is in the public domain under the Copyright Act in the United States. Google will have no right to reclaim Public Domain Funds for a book that is in the public domain under the Copyright Act in the United States from a Person who claimed he, she or it is a Rightsholder of such book once the Registry pays such funds to such Person.
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(c) Records and Reporting. The Registry shall keep accurate records of its disbursement of Unclaimed Funds and Public Domain Funds. The Registry shall prepare annual written reports of the same and shall submit such reports to Google within fortyfive (45) days after the end of each calendar year.
(d) Audit Rights. Google may, upon thirty (30) days’ prior notice and at its own expense, retain a nationally recognized independent and mutually-acceptable independent auditor (whose fees are not contingency based), under a duty of confidentiality to the Registry, to review and audit the Registry’s relevant records to confirm the payments made under Section 6.3(a) (Unclaimed Funds) and Section 6.3(b) (Public Domain Funds). The audit shall: (i) be subject to the Registry’s security and confidentiality requirements; (ii) occur no more than once every calendar year and not during the first or last three (3) weeks of a calendar quarter; (iii) transpire during the Registry’s normal business hours; and (iv) cover a period not to exceed the previous four (4) calendar years. The Registry will promptly correct any payment errors. In addition, if the audit reveals an underpayment of five percent (5%) or more in the payments for any calendar quarter, then the Registry shall pay for the reasonable costs associated with the audit. The accounting firm may only disclose to Google whether or not the Registry is in compliance with its payment obligations under Section 6.3(a) (Unclaimed Funds) and Section 6.3(b) (Public Domain Funds) and, if the Registry is not in compliance, the amount of any underpayment and supporting calculations.
6.4 Funding and Technical Assistance. Google shall:
(a) fund the set-up and operations of the Registry according to the terms set forth in Section 5.2 (Payment For Registry, Notice and Claims Administration); and
(b) provide reasonable technical assistance with respect to the design, development and maintenance of the Registry.
6.5 Google’s Rights to Registry Data.
(a) Data for Google. The Registry will provide Google with access to such Registry data, including all updates, as are reasonably necessary for Google to perform its obligations under this Settlement Agreement.
(b) Data for Fully Participating Libraries. The Registry will provide Google with access to such Registry data, including all updates, as are reasonably necessary for Fully Participating Libraries to perform their obligations under their respective LibraryRegistry (Fully Participating) Agreements. Google may provide to the Fully Participating Libraries such Registry data, including all updates, as are reasonably necessary for Fully Participating Libraries to perform their obligations under their respective Library-Registry (Fully Participating) Agreements.
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(c) Survival. Google’s rights to have access to data about a Book or Insert will survive the expiration of the term of the U.S. copyright in such Book or Insert and, to the extent that Google requires access to data after the expiration of the terms of all U.S. copyrights in all Books and Inserts, the Registry, if still operational at such time, shall provide such access.
6.6 Exchange of Data between Google and the Registry.
(a) Data Provided by Google. Google shall provide the following to the Registry:
(i) Digital Copies to Libraries. The name of any library to which it has provided Digital Copies of Books Digitized in the United States and, upon request of the Registry, the library at which a particular Book has been Digitized.
(ii) Digitized Books. On at least a quarterly basis, an update to the list of Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized under this Settlement Agreement along with Metadata with respect to such Books to the extent that Google is permitted to do so under then-existing contracts with Metadata providers. Google, Plaintiffs, and the Registry will cooperate to obtain such Metadata providers’ permission for Google to provide Plaintiffs and the Registry with such lists; provided that the Registry shall be responsible for payment of any additional license fees to such providers to the extent required. In communicating between them, Google and the Registry will use a unique identifier for each Book, Public Domain Book with a copyright date after 1922 or Government Work. The update for a Book, Public Domain Book with a copyright date after 1922 or Government Work will be available within a reasonable period after Digitization and completion of processing of such Book, Public Domain Book with a copyright date after 1922 or Government Work by Google. The data provided shall include information for each Book regarding the Display Uses, if any, that are being made of the Book and identification of any Books that Google is not offering for sale, including any Books that Google excludes from Display Uses for non-editorial reasons (in addition to Google’s obligation under Section 3.7(e) (Google’s Exclusion of Books)). The Registry will use this information for internal purposes only, provided that an individual record of a Book, Public Domain Book with a copyright date after 1922 or Government Work may be disclosed by the Registry to any Rightsholder of that Book or an Insert in that Book, Public Domain Book with a copyright date after 1922 or Government Work. The Registry may need permission from Metadata providers to obtain such Metadata, and will be responsible for payment of any additional license fees to the extent required by such providers.
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(iii) Books Sold. Along with the payments required under Section 4.6 (Payment Terms) for the applicable period, a list of the Books sold, the number of Books sold, and, for each such sale, the sale price.
(iv) Library Scans. Upon request by the Registry and if a Fully Participating Library or a Cooperating Library invokes its rights pursuant to Section 7.2(e)(ii) (Third-Party Required Library Services Provider), reasonable information regarding Google’s provision of Required Library Services, to determine compliance with Section 7.2(e)(i) (Obligation).
(v) Usage Data. Data sufficient to enable the Registry to calculate Subscription Usage Fees and Book Usage Fees, as defined in the Plan of Allocation.
(vi) Registration/Claims Process Data. All data provided to Google by members of the Settlement Class or their agents in connection with the registration, claims, and opt out processes. Such data shall be subject to a Registry privacy policy.
(vii) Additional Information. Additional data, including updates, as reasonably necessary for the Registry to perform its obligations under this Settlement Agreement.
(b) No Google Licenses. Except with respect to (i) the limited right to use Digital Copies of Library Scans and of Books other than Library Works provided by Google pursuant to Section 3.7(c) (Additional Contemplated Rightsholder Services Provider), Section 7.2(e)(ii) (Third-Party Required Library Services Provider) and Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider) and (ii) the limited right to use information provided by Google pursuant to Section 6.6(a) (Data Provided by Google), no licenses are granted by Google to the Rightsholders, the Registry, Plaintiffs or any other Person pursuant to this Settlement Agreement, by implication, estoppel or otherwise.
(c) Data Provided by the Registry. The Registry shall provide the following to Google:
(i) Books Claimed. A list of all Books and Inserts for which a Registered Rightsholder has registered with the Registry, instructions with respect to the Removal of Books and the exclusion or inclusion of Books and Inserts pursuant to Article III (Google Book Search – Rights, Benefits and Obligations) and to the Specified Price pursuant to Section 4.2(b)(i)(1) (Specified Price), and any other directions for Books and Inserts provided for in this Settlement Agreement.
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(ii) Metadata Corrections. Any corrections to the Metadata, and any other corrections or modifications to information the Registry previously provided to Google regarding a Book or Insert.
(iii) Registered Rightsholders. The identity of any Registered Rightsholder for a given Book or Insert; provided, however, that if the Book or the Insert was published under a pseudonym, then the Registry will only disclose that pseudonym to Google and, provided further, that if a Rightsholder requests that his, her or its identity not be disclosed to Google, then the Registry will only disclose an alias. The Registry will neither encourage Rightsholders to request, nor discourage Rightsholders from requesting, such non-disclosure. The Registry will also provide a means for Google to match contact information and other identifying information for a Rightsholder against the Registry’s information pertaining to that Rightsholder. Such mechanism need not reveal the Rightsholder’s contact information to Google. Rightsholder information provided by the Registry is subject to the terms of Section 15.3 (Confidentiality of Rightsholder Information).
(d) Claimed Books to be Public. The Registry will make publicly available whether or not a Book has been registered with the Registry and, for Books that have been registered, the identity of the Registered Rightsholder, unless the Registered Rightsholder requests that such information not be made public for reasonable privacy concerns, as determined by the Registry.
(e) Copyright Status. The Registry and Google will provide each other with information that each obtains bearing on the copyright status of works that are or may be Books or Inserts.
6.7 Authorization of Registry. Where this Settlement Agreement confers on the Registry rights and obligations with respect to Books and Inserts, including with respect to the Registry’s relationship with each of Google, the Fully Participating Libraries, the Cooperating Libraries and the Public Domain Libraries, Plaintiffs and all Rightsholders, as of the Effective Date, shall be deemed to have authorized the Registry to exercise such rights and perform such obligations on behalf of the Rightsholders with respect to their respective Books and Inserts, including to enter into Library-Registry Agreements. In no event, however, may the Registry direct Google to change the classification of a Book, include or exclude a Book or Insert in or from any Display Use, or take any other action, that is contrary to such Book or Insert Rightsholder’s express direction with respect to such Book or Insert, as made pursuant to and in conformance with this Settlement Agreement.
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ARTICLE VII — FULLY PARTICIPATING LIBRARY AND COOPERATING LIBRARY RIGHTS AND OBLIGATIONS
7.1 Becoming a Fully Participating Library or a Cooperating Library. Google shall notify the Registry when it has identified a library that wishes to become a Fully Participating Library or a Cooperating Library. The Registry shall have approval rights as to whether a library may become a Fully Participating Library or a Cooperating Library; provided, however, that in all cases the Registry may only withhold its approval for a library to become a Fully Participating Library or a Cooperating Library due to (a) reasonable concerns as to whether the library can comply with the obligations imposed on a Fully Participating Library or a Cooperating Library by this Settlement Agreement or the applicable Library-Registry Agreement or (b) the library expressing its intent not to comply with the obligations imposed on a Fully Participating Library or a Cooperating Library by this Settlement Agreement or the applicable Library-Registry Agreement. The libraries identified on Attachment G (Approved Libraries) are approved to become Fully Participating Libraries and Cooperating Libraries upon execution of an applicable Library-Registry Agreement.
7.2 Fully Participating Library Uses.
(a) Making of Library Digital Copies.
(i) Fully Participating Library Collections. Google may provide each Fully Participating Library with (and each Fully Participating Library may receive and retain) a Library Digital Copy. Google may construct a Digital Copy of a Book from one or more physical books into a composite version of the Book, which may include alternative page images from different copies of the Book that Google obtains from sources other than the Fully Participating Library. Google may provide to a Fully Participating Library, as technology improves, a technologically updated Library Digital Copy of Books in that Fully Participating Library’s Collection.
(ii) Books Not Digitized From the Fully Participating Library’s Collection. Google may provide a Fully Participating Library with Digital Copies of Books in the Fully Participating Library’s Collection that Google did not Digitize from the Fully Participating Library’s Collection; provided, however, that a Fully Participating Library may receive an LDC of all of the Books in its Collection only if, for a Collection of nine hundred thousand (900,000) Books or more, Google Digitizes more than three hundred thousand (300,000) Books from that Fully Participating Library’s Collection or, for a Collection of fewer than nine hundred thousand (900,000) Books, Google Digitizes more than thirty percent (30%) of the Books from that Fully Participating Library’s Collection. Google will not provide a Fully Participating Library with a Digital Copy of any Book that is not held by that Fully Participating Library.
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(iii) Institutional Consortia. For any Institutional Consortium that (1) exists as of the Settlement Agreement Date, and (2) with which Google has a Digitization Agreement, Google may provide each Fully Participating Library that is a member of that Institutional Consortium with Digital Copies of Books in that Fully Participating Library’s Collection that Google did not Digitize from that Fully Participating Library’s Collection, provided, however, that a Fully Participating Library may receive an LDC of all of the Books in its Collection only if at least ten thousand (10,000) Books were Digitized from such Fully Participating Library’s Collection, and (a) if the sum of the Collections for all Fully Participating Libraries in the Institutional Consortium is two million (2,000,000) Books or more, Google Digitizes more than six hundred fifty thousand (650,000) Books from those Fully Participating Libraries’ Collections, or (b) if the sum of the Collections for all Fully Participating Libraries in the Institutional Consortium is fewer than two million (2,000,000) Books, Google Digitizes more than thirty percent (30%) of the Books in aggregate from those Fully Participating Libraries’ Collections. Google will not provide such a Fully Participating Library with a Digital Copy of any Book that is not held by that Fully Participating Library.
(iv) Limitation. Google shall not provide Digital Copies of Books Digitized in the United States to any Person other than a Fully Participating Library, except as authorized in this Settlement Agreement, or with prior Registry or Rightsholder approval.
(b) Use of Library Digital Copies. Each Fully Participating Library may make the following uses of its LDC:
(i) Technical Adaptations. The Fully Participating Library may reproduce and make technical adaptations to (but not adapt or alter the content of) its LDC as reasonably necessary to preserve, maintain, manage, and keep technologically current its LDC.
(ii) Users with Print Disabilities.
(1) Special Access. The Fully Participating Library may provide special access to Books in its LDC to a user who has provided written documentation that a Person having the credentials of a Competent Authority has certified that such user has a Print Disability. A professional librarian shall not be permitted to certify a user’s claimed Print Disability for purposes of this Section 7.2(b)(ii)(1) (Special Access) except in those circumstances in which the user affirms in writing to such librarian that no Competent Authority is available to the user for that purpose or in which the user has a Print Disability that is readily apparent upon physical observation of the user. A certified user may be permitted
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to access Books in the LDC in the form of electronic text used in conjunction with screen enlargement, voice output, or refreshable Braille displays. A Fully Participating Library will not provide a certified user with such special access to Books in its LDC in a manner that would make any copy ordinarily accessible to anyone other than such certified user, or ordinarily accessible to such certified user for a longer period than is reasonably necessary to facilitate such special access, except in circumstances in which the Fully Participating Library cannot otherwise provide the user with a reasonable accommodation for such user’s Print Disability.
(2) Certification. A Fully Participating Library that provides special access to certified users under this Section 7.2(b)(ii) (Users with Print Disabilities) shall require each such user to sign or otherwise personally acknowledge a standard form agreement (to be agreed upon by the Registry and such Fully Participating Library) that will evidence such user’s awareness and acceptance of terms of use that prohibit use, reproduction or distribution that is prohibited by the Copyright Act or by such terms and conditions of Books in the LDC, and that will provide for the loss of further special access to such Books through the LDC as a possible consequence of violating such terms. Each Fully Participating Library shall also maintain data about its provision of such access to each certified user that is sufficient to enable an auditor to annually certify the Fully Participating Library’s compliance with this Section 7.2(b)(ii) (Users with Print Disabilities) but does not disclose the identity of any certified user.
(3) Limitation. The provisions of this Section 7.2(b)(ii) (Users with Print Disabilities) apply to and authorize a Fully Participating Library’s use of Books in its LDC only for the purpose of reasonably accommodating the needs of certified users with Print Disabilities as required by applicable federal or state law and regulations, and do not authorize access to or use of Digital Copies in the LDC of such Books by other Persons for such purpose or any other purpose except for Persons assisting such certified users with Print Disabilities.
(4) Changes. When warranted by changes in disability laws, the Copyright Act, the nature of Print Disabilities, or the assistive technology available to reasonably accommodate Print Disabilities, the Registry will, upon request by a Fully Participating Library, grant such Fully Participating Library permission to provide a certified user with special access to Books in the LDC in a form or manner that is not permitted by the terms of this Section 7.2(b)(ii) (Users with Print
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Disabilities), but is deemed necessary to reasonably accommodate the Print Disability needs of that user. The Registry will not unreasonably withhold or delay its approval of these requests and will, where it can reasonably anticipate the receipt of the same request from other Fully Participating Libraries, extend the same permission to all Fully Participating Libraries through an appropriate process of written notice to the Designated Representative.
(iii) Replacements.
(1) Replacement Copy. The Fully Participating Library may use its LDC to create a print format replacement copy of a Book solely for the purpose of replacing a copy of such Book that is damaged, destroyed, deteriorating, lost, or stolen, or if the existing format in which the Book is stored has become obsolete, provided that the Fully Participating Library has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price. For these purposes an “unused replacement” for a copy in print format means an unused copy that is offered for sale in print format and does not derive from a copy Digitized from a Fully Participating Library.
(2) Replacement of Replacement Copies. Any replacement copy made by the Fully Participating Library under Section 7.2(b)(iii)(1) (Replacement Copy) that itself is damaged, destroyed, deteriorating, lost, or stolen may be replaced pursuant to this Section 7.2(b)(iii) (Replacements).
(3) Limitation. Notwithstanding anything herein to the contrary (including Section 7.2(d) (Research Corpus)), any use by a Fully Participating Library of a print format replacement copy made under Section 7.2(b)(iii) (Replacements) is not subject to the terms of this Settlement Agreement.
(iv) Finding Tools. The Fully Participating Library may develop or obtain and may deploy finding tools that allow its users to identify pertinent Books within its LDC or generate information from its LDC. Such tools or generated information will not permit users to read or view any material from the LDC that is Protected Expression, except that such users may read or view Front Matter Display and, in response to a search request, a limited number of Snippets for the purpose of enabling the user to verify which Book has been identified. For a No Display Book, if requested by a Rightsholder of that Book, Fully Participating Libraries will stop displaying Snippets as part of the finding tools. Such tools or generated information may not involve the creation of any additional copies of Protected Expression other than transitory copies for Non-
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Display Uses. For purpose of this provision, representations of Books in index form are not copies.
(v) Orphan Works. If the Copyright Act is amended after the Settlement Agreement Date to allow use of orphan works, the Fully Participating Library may use such works from its LDC in accordance with the statute.
(vi) Use for Non-Consumptive Research. Upon notice to the Registry in accordance with its Library-Registry (Fully Participating) Agreement, the Fully Participating Library may allow Qualified Users to conduct Non-Consumptive Research on its LDC, provided that such Fully Participating Library complies with the provisions of Section 7.2(d) (Research Corpus) as if such Fully Participating Library were a Host Site and as if the Fully Participating Library’s LDC were the Research Corpus.
(vii) Personal Scholarly Use and Classroom Use. The Fully Participating Library, if part of a Higher Education Institution, may allow faculty members and research staff of that Higher Education Institution to read, print, download or otherwise use up to five (5) pages of any Book from its LDC that is not Commercially Available for the following purposes: (1) personal scholarly use (for each Book, no more than once per person per term) and (2) classroom use in such Higher Education Institution that is limited to the instructors and students in the class and for the term in which the class is offered; provided that (a) the Fully Participating Library does not know at the time of such use that it is in material non-compliance with Section 8.2 (Security Standard, Security Implementation Plan and Security Audits) with respect to uses of the LDC authorized pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (b) the Fully Participating Library keeps track of and reports all such uses of Books to the Registry in the course of the audit conducted pursuant to Section 8.2(c) (Audits) or, otherwise, upon reasonable request of the Registry, provided that such requests may be made no more than semi-annually. The Registry may make information from such reports regarding the usage of an individual Book available to the Rightsholder of such Book upon request of the Rightsholder. A Fully Participating Library may not read, print, download or otherwise use a Book or Insert through its LDC pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) if such use is available through the Institutional Subscription and the Institutional Subscription service is offered or is available to the Fully Participating Library (whether for a fee or as a beta product) at the time such Fully Participating Library seeks to make such use.
(viii) Support Personnel. (i) The Fully Participating Library may allow the Fully Participating Library’s support personnel, archivists, information technology personnel and legal counsel to read, print, download, or otherwise use Books from its LDC as reasonably necessary to carry out their responsibilities
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with respect to the LDC. A Hosting Fully Participating Library’s support personnel, information technology personnel and legal counsel may have access to the LDC of a Requesting Fully Participating Library as reasonably necessary to carry out their responsibilities with respect to hosting such LDC.
(ix) Other Uses.
(1) Approval by Registry. If agreed by the Registry, a Fully Participating Library may, upon request, make lawful uses of its LDC other than the uses authorized by this Settlement Agreement, provided that such uses do not impair the rights of Rightsholders under this Settlement Agreement.
(2) Approval by Rightsholders. The Registry will forward requests from any Fully Participating Library for authorization from any Registered Rightsholder of a Book to make a use of its Digital Copy of that Book which use is otherwise prohibited or not authorized by this Settlement Agreement. The Registry will provide a response to such Fully Participating Library promptly in the event that the Registered Rightsholder provides a response to the Registry and, if agreed by the Registered Rightsholder, allow the Fully Participating Library to contact the Registered Rightsholder directly to discuss such request. A Fully Participating Library may make uses of its LDC authorized by such Registered Rightsholder and consistent with such Fully Participating Library’s Digitization Agreement with Google.
(x) Use of Contractors.
(1) Fully Participating Libraries Hosting for Other Fully Participating Libraries. Any Fully Participating Library (the “Requesting Fully Participating Library”) may authorize another Fully Participating Library or group of Fully Participating Libraries acting together (each such other Fully Participating Library, a “Hosting Fully Participating Library”) to host and store the Requesting Fully Participating Library’s LDC in a single repository, separately or together with other Requesting Fully Participating Libraries’ LDCs. The Hosting Fully Participating Library shall protect the security of the Requesting Fully Participating Library’s LDC from Prohibited Access and Third-Party Unauthorized Access in the same way that it is obligated to protect the security of its own LDC under Article VIII (Security and Breach). The Requesting Fully Participating Library may use its LDC as permitted under this Settlement Agreement. The Hosting Fully Participating Library, and not the Requesting Fully Participating Library, shall be liable for the Hosting Fully Participating Library’s compliance with Article VIII (Security and
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Breach) with respect to the Requesting Fully Participating Library’s LDC hosted by the Hosting Fully Participating Library; provided that the Requesting Fully Participating Library is responsible for any act of the Requesting Fully Participating Library that results in any Prohibited Access or any Third-Party Unauthorized Access to its LDC. The Hosting Fully Participating Library may not make any use of the Requesting Fully Participating Library’s LDC, except to the extent required to host the Requesting Fully Participating Library’s LDC and to enable the Requesting Fully Participating Library to use its LDC as permitted under this Settlement Agreement.
(2) Other Uses of Contractors. Any Fully Participating Library may authorize third parties to exercise rights on behalf of such Fully Participating Library or to perform any of its obligations under this Settlement Agreement, including the hosting and storage of such Fully Participating Library’s LDC, in which case such Fully Participating Library shall, at all times, be and remain responsible for ensuring that such parties act in accordance with this Settlement Agreement, except as set forth otherwise in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries). Such Fully Participating Library shall be liable for any such third party’s nonconformance with or breach of this Settlement Agreement, and such breaches shall be regarded as breaches by such Fully Participating Library for purposes of Article VIII (Security and Breach), except as set forth otherwise in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).
(c) Prohibited Uses of Library Digital Copies. Each Fully Participating Library is prohibited from making the following uses of its LDC unless authorized by (i) the Book Rightsholder pursuant to Section 7.2(b)(ix)(2) (Approval by Rightsholders) or otherwise or (ii) the Registry pursuant to Section 7.2(b)(ix)(1) (Approval by Registry):
(i) Directly or indirectly selling Books or access to Books;
(ii) Except as permitted pursuant to Section 7.2(b) (Use of Library Digital Copies), directly or indirectly providing access that enables any Person to read, print or download any Protected Expression from the LDC, provided, however, that if, at any time, an Institutional Subscription is neither offered by nor available from any of Google, an Additional Contemplated Rightsholder Services Provider or a Third-Party Required Library Services Provider, on the terms set forth in this Settlement Agreement, such Fully Participating Library may, if part of a Higher Education Institution, for faculty, staff and students of, or other users who would be entitled to use the Institutional Subscription in, that Higher Education Institution, make use of Books in its LDC that are not Commercially
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Available at such time, except as prohibited by any of Section 7.2(c)(i), (iii), (iv), (v), or (vi), if (A) such use is first approved by both (1) the University Librarian of such Fully Participating Library, his or her functional equivalent, or his or her designee, and (2) the General Counsel of such Fully Participating Library, his or her functional equivalent, or his or her designee; and (B) such Fully Participating Library maintains records of any such uses and submits reports of such uses to the Registry promptly upon request from the Registry, provided that such requests may be made no more than semi-annually;
(iii) For inter-library loan;
(iv) For e-reserves;
(v) In course management systems; and
(vi) Any other use not so authorized that would violate the U.S. copyright of the Rightsholder of such Book.
(d) Research Corpus.
(i) Creation and Use. The Research Corpus may be created and used for Non-Consumptive Research in accordance with this Section 7.2(d) (Research Corpus).
(ii) Host Sites. The Research Corpus may be hosted at up to two Host Sites at any given time. At the request of a Fully Participating Library or a Cooperating Library, Google may also become a Host Site (which would be a third Host Site if the Research Corpus is already hosted at two Host Sites) with the approval of the Registry, such approval not to be unreasonably withheld or delayed. Each Host Site must be located in the United States. The Host Sites will be chosen by the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, in consultation with Google. Google will inform the Registry of the identity of each Host Site. Any Host Site that is not a Fully Participating Library, a Cooperating Library or Google must be approved by the Registry, such approval not to be unreasonably withheld or delayed; provided, however, that in all cases the Registry may only withhold its approval for an institution to become a Host Site due to (1) reasonable concerns as to whether the Host Site can comply with the obligations imposed on a Host Site by this Settlement Agreement or the Host Site-Registry Agreement or (2) the Host Site expressing its intent not to comply with the obligations imposed on a Host Site by this Settlement Agreement or the Host Site-Registry Agreement. An institution becomes a Host Site upon execution of an agreement with the Registry (the “Host Site-Registry Agreement”) that incorporates the applicable provisions of this Section 7.2(d) (Research Corpus), Article VIII (Security and Breach), the
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Security Standard, the provisions of Article IX (Dispute Resolution) and other reasonable terms, and upon provision of a Security Implementation Plan under the procedures of Article VIII (Security and Breach); provided that Google is not required to execute a Host-Site Registry Agreement in order to become a Host Site; provided, further, that if Google becomes a Host Site, Google shall comply with this Section 7.2(d) (Research Corpus) and with the procedures of Article VIII (Security and Breach) applicable to a Host Site and any access by Google in breach of the terms of this Section 7.2(d) (Research Corpus) shall constitute Prohibited Access. The Host Site-Registry Agreement will authorize the Host Site to enter into agreements with Qualified Users, reviewers and challengers pursuant to Section 7.2(d)(xi)(2) (Research Agenda) and Section 7.2(d)(xi)(8) (Reviewers and Challengers) on behalf of the Registry, as the Registry’s agent. Any disputes between the Registry and the Host Site as to the terms to be included in the Host Site-Registry Agreement shall be resolved pursuant to Article IX (Dispute Resolution).
(iii) Qualified Users; Non-Consumptive Research. The Host Sites may provide both on-site and remote access to Qualified Users to use the Research Corpus for Non-Consumptive Research purposes only and to reviewers and challengers of such Non-Consumptive Research, subject to Section 7.2(d)(xi)(8) (Reviewers and Challengers). Only Qualified Users, reviewers and challengers, and the Host Site will have access to the Research Corpus, and only for the purposes set forth in this Section 7.2(d) (Research Corpus).
(iv) Right to Withdraw Library Scans. If a Library Work is Commercially Available as of the Notice Commencement Date or becomes Commercially Available at any time during the two (2)-year period after the Notice Commencement Date, a Rightsholder of such Library Work may, at any time during such two (2)-year period or thereafter, withdraw the Library Scan of that Library Work from the Research Corpus; provided that, if, at any time after the end of such two (2)-year period the Library Work ceases to be Commercially Available, then the Library Scan of that Library Work will be returned to the Research Corpus. If, as of the Notice Commencement Date, a Library Work for which Google uses a Library Scan is not Commercially Available but Google mistakenly determined it to be Commercially Available, and such Library Work does not become Commercially Available at any time during the two (2)-year period following the Notice Commencement Date, then upon determination that the Library Work is not Commercially Available after such two (2)-year period, the Rightsholder will not have any right to withdraw such Library Scan from the Research Corpus pursuant to this Section 7.2(d)(iv) (Right to Withdraw Library Scans). If, as of the Notice Commencement Date or at any time during the two (2)-year period following the Notice Commencement Date, a Library Work is Commercially Available but is mistakenly determined to be not Commercially
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Available, then, upon determination that such Library Work is Commercially Available, the Rightsholder will have the right to withdraw the Library Scan of that Library Work from the Research Corpus; provided, however, that, if, at any time after the end of such two (2)-year period the Library Work ceases to be Commercially Available, then, if the Library Scan of such Library Work had been previously withdrawn, such Library Scan will be returned to the Research Corpus. This Settlement Agreement does not restrict the addition of other books to the Research Corpus (e.g., Public Domain Books and Books obtained from the Google Partner Program Digitized with authorization from the Rightsholder).
(v) Identification of Works in Research Corpus. Google or the Host Site will make available to Qualified Users information about what Books are included in the Research Corpus.
(vi) Limitations on Non-Consumptive Research. The Host Site shall be responsible for oversight over research performed on the Research Corpus so that such research adheres to the following limitations:
(1) No Person may, in the course of conducting, reviewing or challenging the results of, Non-Consumptive Research use Protected material through the Research Corpus for purposes that involve reading portions of a Book to understand the intellectual content presented within a Book;
(2) It is permissible, however, for Qualified Users to read Protected material within the Research Corpus as reasonably necessary to carry out Non-Consumptive Research, and for reviewers or challengers of the results of Non-Consumptive Research to read Protected material as reasonably necessary to analyze or verify such results; and
(3) A Qualified User may extract from the Research Corpus and disclose to other Persons only a limited amount of Protected material as reasonably necessary to explain or discuss the Non-Consumptive Research and its results.
(vii) Publication of Results. Qualified Users are permitted to report the results of their Non-Consumptive Research in scholarly publications, which may constitute indirect commercial use (e.g., reporting results in journal articles or in books sold to the academic community or to the public).
(viii) No Commercial Use. Except with the express permission of the Registry and Google, direct, for profit, commercial use of information extracted from Books in the Research Corpus is prohibited.
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(ix) Use of Data. Use of data extracted from specific Books within the Research Corpus to provide services to the public or a third party that compete with services offered by the Rightsholder of those Books or by Google is prohibited. When requested by a Rightsholder or by the Registry on behalf of a Rightsholder, a Qualified User will be required to remove any and all data extracted from the Books of that Rightsholder from a service offered to the public or a third party by the Qualified User if that service competes with services offered by the Rightsholder of those Books. When requested by Google, a Qualified User will be required to remove any and all data extracted from Books from a service offered to the public or a third party by the Qualified User if that service can reasonably be construed as competing with services offered by Google at the time the Qualified User’s service is first made accessible.
(x) Use of Algorithms. Commercial exploitation of algorithms developed when performing Non-Consumptive Research on the Research Corpus is permitted.
(xi) Governance and Maintenance. Governance of the maintenance and use of the Research Corpus shall be as follows:
(1) Qualified Users Only. Only Qualified Users will be permitted to conduct Non-Consumptive Research using the Research Corpus.
(2) Research Agenda. Prior to engaging in Non-Consumptive Research, a Qualified User will file with the Host Site: (a) a Research Agenda, (b) an agreement between the Qualified User and the Host Site, as agent for the Registry, that prohibits access to and use of the Research Corpus except for permitted Non-Consumptive Research and that makes the Qualified User directly liable to the Registry for any breach of its terms, and (c) a letter from a Fully Participating Library, a Cooperating Library, the Registry, Google or the Host Site indicating that the submitting entity will accept responsibility for the Qualified User’s use of the Research Corpus. The Host Site shall maintain these documents on file and shall make them available to the auditors for review pursuant to Section 7.2(d)(xi)(6) (Audits). Except to the extent that disclosure is required by law or this Settlement Agreement, the Host Site, the Registry and auditors will treat all Research Agendas as confidential.
(3) Review of Research Agenda. Prior to allowing a Qualified User access to the Research Corpus, the Host Site will review each Research Agenda for the purpose of determining whether the agenda demonstrates that the research will be Non-Consumptive Research. Through the audit performed pursuant to Section 7.2(d)(xi)(6) (Audits),
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the Registry reserves the right to verify that the Host Site implements such review process.
(4) Reasonable Discretion. A Host Site may deny a Qualified User’s access to the Research Corpus at its reasonable discretion.
(5) Management. Each Host Site will manage the Research Corpus in adherence with the governance and maintenance provisions of this Section 7.2(d)(xi) (Governance and Maintenance).
(6) Audits. Regular audits of each Host Site will be performed by a qualified third party reasonably acceptable to the Registry and the Host Site to ensure compliance with the governance and use terms set forth in this Section 7.2(d)(xi) (Governance and Maintenance). The audit shall be subject to reasonable prior notice to the Host Site, shall be conducted during the Host Site’s normal business hours and shall be conducted no more than once in any twelve (12)-month period. The costs of the audit will be subject to the terms of Section 8.2(c) (Audits).
(7) Development. Each Host Site will have the ability to access the Research Corpus for purposes of developing, testing and maintaining the Host Site platform, creating back-up copies of the Research Corpus, and keeping the Research Corpus technologically current.
(8) Reviewers and Challengers. Prior to a Qualified User providing reviewers and challengers with access to Books within the Research Corpus, such reviewers and challengers shall execute an agreement with the Host Site, as agent for the Registry, limiting their use to reviewing and challenging the research conducted pursuant to Section 7.2(d)(xi)(2) (Research Agenda).
(xii) No Other Restrictions. None of the restrictions in this Section is intended to limit the right to access or use (1) any copyrighted material obtained from sources outside of the Research Corpus or (2) except as specifically set forth in Section 7.2(d)(viii) (No Commercial Use) and Section 7.2(d)(ix) (Use of Data), any material not Protected under the Copyright Act.
(xiii) Costs. The Registry is not responsible for any costs relating to the use of the Research Corpus, except as specifically set forth in Section 8.2(c) (Audits).
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(e) Required Library Services Requirement.
(i) Obligation. Google will provide the following services listed in clauses (1) and (2) below (together, “Required Library Services”) by no later than five (5) years from the Effective Date:
(1) For eighty-five percent (85%) of Library Scans other than (a) Not Counted Library Works and (b) Display Books, free search services Online through Google Products and Services (including Preview Use or Snippet Display if permitted under this Agreement) and a Library Link; and
(2) For eighty-five percent (85%) of Library Scans other than (a) Not Counted Library Works, (b) No Display Books, and (c) Library Scans that are not authorized to be included in Institutional Subscriptions pursuant to the terms of this Settlement Agreement, free search services Online through Google Products and Services (including Preview Use or Snippet Display if permitted under this Agreement), a Library Link, the Public Access Service, and Institutional Subscription for Higher Education Institutions.
(ii) Third-Party Required Library Services Provider. If Google fails to meet the Required Library Services Requirement, or if Google gives notice to the Registry, the Fully Participating Libraries and the Cooperating Libraries of its intent not to meet the Required Library Services Requirement at any time after the Effective Date, and does not cure this failure within ninety (90) days after notice from the Fully Participating Libraries and the Cooperating Libraries invoking this provision, acting through the Designated Representative, then the Fully Participating Libraries and the Cooperating Libraries, or the Registry, may seek to engage one or more third parties (each, a “Third-Party Required Library Services Provider”) to provide any or all of the Required Library Services (provided that, at a minimum, the Third-Party Required Library Services Provider provides at least one of the Required Library Services not provided by Google that caused the foregoing right to use a Third-Party Required Library Services Provider to be triggered) on substantially the same terms described in this Settlement Agreement. Any such arrangement will be subject to the consent of each of (1) the Registry and (2) the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, which consents shall not be unreasonably withheld or delayed. If a Third-Party Required Library Services Provider is identified and the foregoing required consents are obtained, then Google will provide such Third-Party Required Library Services Provider with a Digital Copy of Library Scans (excluding particular Library Scans that are restricted from further distribution under the Digitization Agreement between Google and a Fully Participating Library or a Cooperating Library) to be used
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solely to provide Required Library Services (as such Required Library Services may evolve over time) in accordance with the terms of this Settlement Agreement and the terms of Google’s Digitization Agreements with each of the Fully Participating Libraries and the Cooperating Libraries. If, within one hundred and twenty (120) days after the Fully Participating Libraries and the Cooperating Libraries invoke this provision following such failure by Google, a Third-Party Required Library Services Provider has not been agreed upon, then the Fully Participating Libraries and the Cooperating Libraries, if they wish, may continue to attempt to engage a Third-Party Required Library Services Provider in the manner described above or may elect to provide the Required Library Services themselves. Any such self-provision shall be subject to the applicable terms of this Settlement Agreement and to the Registry’s approval, which approval shall not be unreasonably withheld or delayed. In any event, the Fully Participating Libraries may continue to use their LDCs in accordance with Section 7.2(b) (Use of Library Digital Copies), Non-Consumptive Research may continue to be conducted using the Research Corpus in accordance with the provisions of Section 7.2(d) (Research Corpus), and the requirement that the Fully Participating Libraries and the Host Sites comply with the Security Standard in Article VIII (Security and Breach) will continue to be in effect. Any Third-Party Required Library Services Provider is, in connection with any Claim arising out of its providing any or all of the Required Library Services, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).
(iii) Reporting. Upon request by the Fully Participating Libraries and the Cooperating Libraries, Google will provide such libraries with reasonable information regarding the number of Library Scans and the Required Library Services being provided by Google to determine Google’s compliance with the standard set forth in Section 7.2(e)(i) (Obligation).
(iv) Exercise or Waiver of Rights. The Fully Participating Libraries and the Cooperating Libraries may exercise their rights under this Section 7.2(e) (Required Library Services Requirement) or may consent to any agreement between Google and the Registry to waive the Required Library Services Requirement as to all Library Scans, acting through the Designated Representative. Further, the Fully Participating Libraries and the Cooperating Libraries may exercise their rights under Section 3.7(c) (Additional Contemplated Rightsholder Services Provider) with respect to Contemplated Rightsholder Services or may consent to any agreement between Google and the Registry to waive Google’s obligation to provide Contemplated Rightsholder Services as to all Library Scans, acting through the Designated Representative.
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(f) Third-Party Beneficiary.
(i) Fully Participating Libraries. With respect to the use of Books and Inserts, the Library-Registry (Fully Participating) Agreement will bind a Fully Participating Library only with respect to the LDC. Plaintiffs and Google acknowledge and agree that each such Fully Participating Library is a third-party beneficiary of the following provisions of this Settlement Agreement, entitled to enforce such provisions directly, as if such Fully Participating Library were a party hereto: (i) Article X (Releases) (as applicable to Fully Participating Libraries) and (ii) the terms of Sections 1.28 (Commercially Available), 3.2(d)(iii) (Mistakes), 3.5(a)(ii) (Back-up Storage), 3.5(b)(i)(1) (Exclusion from Library Digital Copy), 3.5(b)(iii) (Coupling Requirement), 3.5(b)(v) (Waiver of Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e)(i) (Digital Copy of Excluded Books), 4.1(d) (Basic Features of Institutional Subscriptions), 4.1(e) (Institutional Subscription Terms and Conditions), 4.1(f) (Subscriber Experience), 6.2(a) (Not-For-Profit Entity), 6.3 (Unclaimed and Public Domain Funds), 6.5(b) (Data for Fully Participating Libraries) and 17.14 (No Liability for Consequential Damages) and Articles VII (Fully Participating Library and Cooperating Library Rights and Obligations) and VIII (Security and Breach). Any action to enforce any such provision that arises out of the same facts or breach brought by one or more Fully Participating Libraries and, pursuant to Section 7.2(f)(ii) (Cooperating Libraries), one or more Cooperating Libraries, must be brought by all such libraries as a single consolidated action, to the extent that such consolidation is permitted by the Court or Arbitrator, with one such Fully Participating Library or Cooperating Library, and/or one counsel for all the libraries bringing such action, having primary responsibility for communicating with the party or parties against which the action is brought.
(ii) Cooperating Libraries. Plaintiffs acknowledge and agree that each Cooperating Library is a third-party beneficiary of the following provisions of this Settlement Agreement, entitled to enforce such provisions directly, as if such Cooperating Library were a party hereto: (i) Article X (Releases) (as applicable to Cooperating Libraries) and (ii) the terms of Sections 1.28 (Commercially Available), 3.2(d)(iii) (Mistakes), 3.5(b)(iii) (Coupling Requirement), 3.5(b)(v) (Waiver of Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e)(i) (Digital Copy of Excluded Books), 4.1(d) (Basic Features of Institutional Subscriptions), 4.1(e) (Institutional Subscription Terms and Conditions), 4.1(f) (Subscriber Experience), 6.2(a) (NotFor-Profit Entity), 6.3 (Unclaimed Funds and Public Domain Funds), and 17.14 (No Liability for Consequential Damages) and Article VII (Fully Participating Library and Cooperating Library Rights and Obligations). Any action to enforce any such provision that arises out of the same facts or breach brought by one or more Cooperating Libraries and, pursuant to Section 7.2(f)(i) (Fully Participating
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Libraries), one or more Fully Participating Libraries, must be brought by all such libraries as a single consolidated action, to the extent such consolidation is permitted by the Court or Arbitrator, with one such Cooperating Library or Fully Participating Library, and/or one counsel for all the libraries bringing such action, having primary responsibility for communicating with the party or parties against which the action is brought.
(iii) Failure to Comply. No failure by a Fully Participating Library or a Cooperating Library to comply with its Library-Registry Agreement will affect such library’s third-party beneficiary rights specified in Section 7.2(f)(i) (Fully Participating Libraries) and Section 7.2(f)(ii) (Cooperating Libraries), respectively.
(iv) No Modification Without Consent. None of the provisions set forth in paragraphs (i) - (iii) above, this paragraph (iv), or the provisions referred to therein as to which the Fully Participating Libraries or the Cooperating Libraries, as applicable, are express third-party beneficiaries may be modified or amended in a way that negatively affects the interests of the Fully Participating Libraries or the Cooperating Libraries, as applicable, without their agreement, acting through the Designated Representative. In addition, the provisions of Sections 2.2 (Authorization of Google, Fully Participating Libraries and Cooperating Libraries), 3.1(a) (Non-Exclusive Digitization Rights), 4.1(a)(i) (Objectives) and 6.6 (d) (Claimed Books to be Public) may not be modified or amended in a way that negatively affects the interests of the Fully Participating Libraries or the Cooperating Libraries without the agreement of the Fully Participating Libraries and the Cooperating Libraries, as applicable, acting through the Designated Representative.
(v) Related Agreements with Google. Each Fully Participating Library and each Cooperating Library also may enter into a separate agreement with Google (or an amendment to its current Digitization Agreement with Google) setting forth other agreements between them relating to this Settlement Agreement, including agreements, if any, setting forth which provisions of this Settlement Agreement Google is required to enforce (which provisions may be publicized by Google and/or such Fully Participating Library or Cooperating Library); provided, however, that no such amendment or other agreement will permit any Fully Participating Library to make any uses of its LDC that are prohibited by its Library-Registry (Fully Participating) Agreement or by this Settlement Agreement.
(g) Accommodated Service.
(i) Definition. “Accommodated Service” means a service that offers the text of Books to users of Access Uses and other Revenue Models in the form
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of electronic text used in conjunction with screen enlargement, voice output, and refreshable Braille displays, or, at Google’s option and with the Registry’s approval, other technologies to reasonably accommodate Print Disabilities, at no greater charge than the charge to view Books in a similar manner to users of Access Uses and other Revenue Models without a Print Disability.
(ii) Google Intention. Google intends to make Digital Copies of Books and Inserts accessible to users with Print Disabilities consistent with Section 3.3(d) (Accommodation of Print Disabilities). To the extent that Google is unable to make Books and Inserts accessible as set out in Section 7.2(g)(ii)(1) (Offering of Accommodated Service), Google will reasonably cooperate to enable access to Books and Inserts pursuant to Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider).
(1) Offering of Accommodated Service. To satisfy the requirements of this Section 7.2(g) (Accommodated Service), Google must (a) use commercially reasonable efforts to enable an Accommodated Service for Books and Inserts for Access Uses and other Revenue Models as authorized under this Settlement Agreement; (b) for users of the Institutional Subscription with Print Disabilities, offer an Accommodated Service for all Books and Inserts in the Institutional Subscription Database for which Google’s automated OCR system is successful; and (c) not unreasonably withhold its consent to a request from a Fully Participating Library to work with particular third-party contractors to provide access to the full text of Books and Inserts as described in this Section 7.2(g) (Accommodated Service) and to improve the quality of such Books (e.g., OCR quality and structure extraction) for the purpose of providing such access. In order to develop the Accommodated Service, Google may work with any third parties to provide access to the full text of Books and Inserts as described in this Section 7.2(g)(ii)(1) (Offering of Accommodated Service), and to improve the quality of such Books (e.g., OCR quality and structure extraction) for the purpose of providing such access. The third-party contractors working with Google in such efforts shall not otherwise be permitted to use or distribute such Books or Inserts and, when such efforts are completed, shall return any such Books and Inserts to Google and delete all copies of any such Books and Inserts that have been provided by Google or created by any such third-party contractors in the course of such efforts.
(2) Alternative Accommodated Service Provider.
a) Identification of Alternative Accommodated Service Provider. If, within five (5) years from the Effective Date, Google has not complied with Section 7.2(g)(ii)(1) (Offering of
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Accommodated Service), or if, following such five (5)-year period, Google ceases to comply with Section 7.2(g)(ii)(1) (Offering of Accommodated Service), then, upon notice to Google and the Registry by the Fully Participating Libraries and the Cooperating Libraries acting through the Designated Representative, Google shall use commercially reasonable efforts to identify and work with an alternative provider (the “Alternative Accommodated Service Provider”) to readily provide copies of Books and Inserts requested by the Alternative Accommodated Service Provider solely for the purpose of the Alternative Accommodated Service Provider making Digital Copies of these Books and Inserts accessible to users with Print Disabilities.
b) Agreement With Alternative Accommodated Service Provider. The Alternative Accommodated Service Provider will enter into an agreement with Google and the Registry that includes terms protecting the security of the Books and Inserts, terms similar to those contained in Section 7.2(b)(ii) (Users with Print Disabilities) and terms that require the Alternative Accommodated Service Provider to make available to users with Print Disabilities the services of an “authorized entity” within the meaning of 17 U.S.C. § 121. The terms of any such agreements shall be made available to the Designated Representative.
7.3 Google’s Obligations.
(a) Notification of Libraries. Google will notify each library providing Books to Google as part of the GLP pursuant to a Digitization Agreement of the requirements to become a Fully Participating Library if it wishes to have a LDC, and will use commercially reasonable efforts to obtain such library’s agreement to enter into the Library-Registry (Fully Participating) Agreement and become a Fully Participating Library.
(b) Breach By Participating or Cooperating Libraries. Google will reasonably cooperate with the Rightsholders and/or the Registry in connection with any material breach by a Fully Participating Library or a Cooperating Library of its Library-Registry Agreement or the terms of this Settlement Agreement applicable to such Fully Participating Library or Cooperating Library; provided, however, that Google is not required to disclose confidential or personally identifiable information other than as required by law or valid legal process.
7.4 Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights.
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(a) Designated Representative and Security Representatives.
(i) Role. To the extent that Sections 3.5(b)(v) (Waiver of Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder Services Provider), 6.3(a) (Unclaimed Funds), 7.2(d)(ii) (Host Sites), 7.2(e)(ii) (Third-Party Required Library Services Provider), 7.2(e)(iv) (Exercise or Waiver of Rights), 7.2(f)(iv) (No Modification Without Consent), 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), 7.5 (Meetings to Discuss Library Uses) and 8.2(b) (Changes to Security Standard) contemplate that any Fully Participating Library or Cooperating Library may exercise rights or waive rights acting through the Designated Representative or Security Representatives, such library may do so only by acting through the Designated Representative or Security Representatives, as applicable. Google and the Registry, in dealing with the Fully Participating Libraries and the Cooperating Libraries, are obligated to accept instructions, decisions and positions only from such Designated Representative or Security Representatives, as applicable, regarding such matters. Google and the Registry may rely on instructions, decisions and positions provided to Google and the Registry by the Designated Representative or Security Representatives, as applicable. All Fully Participating Libraries and all Cooperating Libraries shall be bound by the instructions, decisions and positions conveyed to Google and the Registry by the Designated Representative or Security Representatives, as applicable, regarding all matters referenced in the Sections set forth in the first sentence of this Section 7.4(a) (Designated Representative and Security Representatives).
(ii) Selection and Failure to Select. The Fully Participating Libraries and the Cooperating Libraries shall select a Designated Representative within thirty (30) days after the Effective Date, and the Fully Participating Libraries shall select Security Representatives by the two (2)-year anniversary of the Effective Date. If, after the date set for the appointment of the initial Designated Representative or of the initial Security Representatives, as the case may be, the Registry or Google requests the consent, waiver or agreement of the Designated Representative or of the Security Representatives, as the case may be, and if the Designated Representative or Security Representatives, as the case may be, fail to respond (whether due to failure to have been appointed or otherwise) to such request within sixty (60) days, then the Registry or Google, as the case may be, may extend such sixty (60)-day period or, if not extended, may proceed as if such consent, waiver or agreement had been given; provided that, the Registry or Google, as the case may be, will give ten (10) days’ prior notice of its intent to proceed unless the Designated Representative or Security Representatives, as the case may be, respond within such ten (10)-day period. Any such request shall be made in writing by Google or the Registry to the Designated Representative or the Security Representatives, as the case may be, if so appointed at the time.
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However, if the Registry makes such a request of the Designated Representative or the Security Representatives, and no Designated Representative or Security Representatives, as the case may be, have been appointed at the time, then the Registry may direct such request to Google. Any such request directed to Google satisfies the foregoing expectation that the Registry will deal with the Designated Representative or Security Representatives, as the case may be. In addition, to the extent Google provides instructions, decisions or positions in response to such request, the Registry’s obligation to accept instructions, decisions and positions only from the Designated Representative or the Security Representatives, as the case may be, is fulfilled; provided that if Google fails to respond to such request within sixty (60) days, then the Registry may extend such sixty (60)-day period or, if not extended, may proceed as if such consent, waiver or agreement had been given.
(b) Notification of Identity. One of the Fully Participating Libraries or the Cooperating Libraries will notify Google and the Registry of the initial Designated Representative and one of the Fully Participating Libraries will notify Google and the Registry of the initial Security Representatives by written notice, which written notice shall be signed on behalf of (but not necessarily by) all Fully Participating Libraries and Cooperating Libraries in the case of the Designated Representative, or on behalf of (but not necessarily by) all Fully Participating Libraries in the case of the Security Representatives. Any changes in the identity of the Designated Representative or Security Representatives shall be communicated promptly to Google and the Registry by one of the Fully Participating Libraries, by one of the Cooperating Libraries or by the existing or previous Designated Representative or an existing or previous Security Representative, as applicable.
(c) Authority. The Designated Representative will not have independent authority to make decisions on behalf of the Fully Participating Libraries and/or the Cooperating Libraries, as the case may be, but will, instead, convey to Google and/or the Registry, as applicable, instructions, decisions and positions of the Fully Participating Libraries and the Cooperating Libraries on matters as referred to in Section 7.4(a) (Designated Representative and Security Representatives).
(d) Revocation of Instructions, Decisions and Positions. If any Fully Participating Library or Cooperating Library believes that the Designated Representative, or if any Fully Participating Library believes that the Security Representatives, have conveyed to Google and/or the Registry any instructions, decisions or positions of the Fully Participating Libraries and/or the Cooperating Libraries, as the case may be, that had not been agreed upon in accordance with the governance rules established pursuant to Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement and Attachment 1 to Exhibit C of the Library-Registry (Cooperating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of
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Governance Rules), then such Fully Participating Library or Cooperating Library in the case of instructions, decisions or positions of the Designated Representative, or such Fully Participating Library in the case of instructions, decisions or positions of the Security Representatives, may countermand such instruction, decision or position in writing to Google and/or the Registry, as applicable, and Google and/or the Registry, as applicable, will, only if it has not yet acted upon such instruction, decision or position, delay acting upon such instruction, decision or position unless and until the Designated Representative or Security Representatives, as applicable, re-affirms such instruction, decision or position to Google and/or the Registry, as applicable.
(e) Selection Process and Establishment of Governance Rules. Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement and Attachment 1 to Exhibit C of the Library-Registry (Cooperating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) establishes the process for selecting the Designated Representative and Security Representatives and for establishing governance rules among the Fully Participating Libraries and the Cooperating Libraries.
7.5 Meetings to Discuss Library Uses.
(a) Operational Matters. The Registry, Google and the Fully Participating Libraries will meet from time to time as mutually agreed to discuss operational matters regarding the applicable Library-Registry (Fully Participating) Agreements, and the provisions of this Settlement Agreement that are applicable to Fully Participating Libraries, including the communication of requests from Fully Participating Libraries to Rightsholders regarding uses of LDCs, communication of information to Fully Participating Libraries required for them to implement this Settlement Agreement and the applicable Library-Registry (Fully Participating) Agreements (e.g., the Commercial Availability status), and how the Fully Participating Libraries are using the LDC for personal scholarly and classroom purposes, as authorized by Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use).
(b) Establishing Standards. Within six (6) months after the Effective Date, the Registry and the Fully Participating Libraries, acting through the Designated Representative, will establish reasonable uniform standards for the Fully Participating Libraries’ maintenance of records, submissions to the auditor and reports to and notifications of the Registry of uses (i) authorized pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research), (ii) authorized pursuant to Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (iii) made pursuant to the proviso in Section 7.2(c)(ii), and for the auditing of such uses. Such standards will provide that the maintenance of records, the submissions to the auditor and reports to and notifications of the Registry include, at a minimum, the following information: (1) the name of the Fully Participating Library; (2) with respect to Section 7.1(b)(vi) (Use for Non-Consumptive Research), the same information that Host Sites are obligated to maintain and report to
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the auditor pursuant to Section 7.2(d) (Research Corpus); and (3) with respect to uses made pursuant to Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) and the proviso in Section 7.2(c)(ii), for each Book used by the Fully Participating Library, the title and author of the Book, a description of the type of use made of the Book, and the amount of pages of the Book used. Such standards, and any template used by the Fully Participating Libraries to maintain, submit to the auditor and report to and notify the Registry of such information, will be attached to each Library-Registry (Fully Participating) Agreement. Without limiting the foregoing, neither the Registry nor the Fully Participating Libraries, acting through the Designated Representative, shall unreasonably delay discussions on, or unreasonably withhold agreement to, such standards; provided, however, that if the Designated Representative unreasonably fails to discuss or agree to such standards, the Registry may establish such standards for the Fully Participating Libraries that are consistent with this Section 7.5(b) (Establishing Standards); provided, however, that the Fully Participating Libraries, acting through the Designated Representative, may, in lieu of complying with such standards established by the Registry, invoke an arbitration pursuant to Article IX (Dispute Resolution) in which the Arbitrator would establish, on a de novo basis, reasonable standards that are consistent with this Section 7.5(b) (Establishing Standards); pending the Arbitrator’s Decision, the Fully Participating Libraries will provide at least the minimum information set forth in the second sentence of this Section 7.5(b) (Establishing Standards).
7.6 When Fully Participating Libraries, Cooperating Libraries and Public Domain Libraries are Bound. Notwithstanding anything to the contrary in this Settlement Agreement, no Fully Participating Library, Cooperating Library or Public Domain Library is bound by any provision of this Settlement Agreement; rather, each Fully Participating Library’s, Cooperating Library’s and Public Domain Library’s rights and obligations are as set forth in the applicable Library-Registry Agreement and no library has any rights or obligations as a third-party beneficiary under this Settlement Agreement unless and until it enters into a Library-Registry Agreement and becomes a Fully Participating Library or a Cooperating Library.
ARTICLE VIII — SECURITY AND BREACH
8.1 Obligations of Google, the Fully Participating Libraries and the Host Sites. Google, each Fully Participating Library and each Host Site shall be responsible for the security of Digital Copies of Books and any LDC (and, in the case of a Host Site, the Research Corpus) in accordance with this Article VIII (Security and Breach) while any such Digital Copies and any LDC (and, in the case of a Host Site, the Research Corpus) are in the possession, custody or control of such entity.
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8.2 Security Standard, Security Implementation Plan and Security Audits.
(a) Security Implementation Plan.
(i) Compliance. At all times, Google, each Fully Participating Library and each Host Site shall comply with its own, then-in-effect Security Implementation Plan.
(ii) Initial Security Implementation Plan. Google, each Fully Participating Library and each Host Site shall formulate an initial Security Implementation Plan that meets the requirements of the Security Standard and shall implement such initial Security Implementation Plan promptly on or before the Effective Date. After the Effective Date, until it submits to the Registry and implements an initial Security Implementation Plan (a) Google shall not make any Display Uses, other than Snippet Display of a Display Book, except as authorized by the Rightsholder or the Registry, (b) a Fully Participating Library shall not make any uses of its LDC or receive an LDC from Google, and (c) Google shall not provide a Host Site with a Research Corpus.
(iii) Revised Security Implementation Plan. Google, each Fully Participating Library and each Host Site may revise its Security Implementation Plan from time to time and, if it does so, shall implement such revised Security Implementation Plan.
(iv) Approval of Security Implementation Plan. Google, each Fully Participating Library and each Host Site shall submit its initial and any revised Security Implementation Plan to the Registry. The Registry shall review such Security Implementation Plan. Within sixty (60) days after such submission, the Registry will (1) approve such Security Implementation Plan, (2) notify Google, the Fully Participating Library or the Host Site, as applicable, that the Registry reasonably believes that any such Security Implementation Plan does not meet the requirements of the Security Standard, citing specific reasons for such belief, or (3) notify Google, the Fully Participating Library or the Host Site, as applicable, that the Registry requires additional time for such review for good cause, the reason therefor, and the date by which the Registry will respond, which additional time shall, in any event, not exceed sixty (60) additional days; provided, however, that if the Registry does not provide such notice, the Security Implementation Plan shall be deemed to be approved. Google, the Fully Participating Library or the Host Site, as applicable, if it determines to implement a new or revised security plan, shall respond to any notice given under clause (2) above within sixty (60) days, either by amending its Security Implementation Plan or by explaining in writing how its Security Implementation Plan meets the requirements of the Security Standard. Any disputes related thereto shall be resolved pursuant to Article IX (Dispute Resolution).
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(b) Changes to Security Standard. Every two (2) years after the Effective Date during the term of this Settlement Agreement, upon the Registry’s written request, Google, the Registry and up to a total of four (4) representatives on behalf of the Fully Participating Libraries (which four (4) representatives may include a representative of the Host Sites, at the option of the Fully Participating Libraries acting through the Designated Representative, and shall be selected in the manner set forth in Attachment 1 (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) to Exhibit C of the Library-Registry (Fully Participating) Agreement and are defined therein as the “Security Representatives”) will review and, if necessary, revise the Security Standard to take account of technological developments, including new threats to security, and will agree on a schedule for implementation of any changes in the Security Standard. This procedure is not intended to alter the relative obligations of Google, the Registry, the Fully Participating Libraries and the Host Sites under this Settlement Agreement or analogous provisions incorporated into the Library-Registry (Fully Participating) Agreement or Host Site-Registry Agreement, as applicable, but to allow for changes in technology. To the extent possible, any such revisions to the Security Standard will not require drastic changes, substantial unreasonable additional costs, or new technology. If they are unable to agree upon changes, Google, the Registry and the Security Representatives shall resolve the dispute pursuant to Article IX (Dispute Resolution). The Fully Participating Libraries may change the Security Representatives for any reason, in the manner set forth in Attachment 1 to Exhibit C of the LibraryRegistry (Fully Participating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules). Notwithstanding the foregoing, if the Fully Participating Libraries fail to designate any representatives by the two (2)-year anniversary of the Effective Date, thereafter, if, and for so long as, the Fully Participating Libraries have failed to select Security Representatives, Google and the Registry may agree to revisions to the Security Standard or, if they are unable to agree, then Google and the Registry shall resolve the dispute pursuant to Article IX (Dispute Resolution).
(c) Audits.
(i) Audited Parties. Google, each Fully Participating Library and each Host Site (each, an “Audited Party”) will permit a mutually agreeable third party to conduct annual audits (or, if reasonably necessary, then semi-annual audits) of its security and usage to verify compliance with the Audited Party’s then-in-effect Security Implementation Plan. The auditor will be subject to a reasonable nondisclosure agreement (an “NDA”) provided by the Audited Party that protects the Audited Party’s confidential information. The auditor may provide a report of the audit to the Registry that the Audited Party is permitted to review in advance of its disclosure to ensure that no trade secrets or other proprietary information is disclosed by the auditors in the report. Such audit shall be conducted on reasonable prior notice on a date and at a time that is mutually agreed with the
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Audited Party and shall be conducted during the Audited Party’s normal business hours.
(ii) Share of Audit Costs. Google and the Registry will share equally the Registry’s out-of-pocket costs of conducting audits of the Audited Parties, subject to the following limits:
(1) If there are a total of twenty-five (25) or fewer Host Sites and Fully Participating Library locations at which LDCs are located, Google’s share will not exceed two hundred thousand United States dollars (U.S. $200,000) for such costs incurred during a calendar year;
(2) For every additional ten (10) locations that are Host Sites and at which LDCs are located, Google’s share shall increase by one hundred thousand United States dollars (U.S. $100,000) for such costs incurred during a calendar year. Google shall be obligated to pay such one hundred thousand United States dollars (U.S. $100,000) toward such incurred costs when the first Fully Participating Library or Host Site over the previous group of ten (10) Fully Participating Libraries and Host Sites signs a Library-Registry (Fully Participating) Agreement or Host SiteRegistry Agreement (i.e., the 26th, 36th, 46th, etc. Fully Participating Library or Host Site).
(iii) Adjustment to Audit Costs. The limits set forth in Section 8.2(c)(ii) (Share of Audit Costs) shall be adjusted as of January 1 of each year to that amount which is equal to the product obtained by multiplying (1) the amount specified, by (2) a fraction, the numerator of which is the Consumer Price Index published for the immediately preceding year and the denominator of which is the Consumer Price Index published for 2008. The term “Consumer Price Index” means the “Consumer Price Index, for All Urban Consumers, Subgroup “All Items” (Base Year 1982-84=100),” which is, as of the Settlement Agreement Date, published by the United States Department of Labor, Bureau of Labor Statistics. If, however, the Consumer Price Index is changed so that the base year is altered from that used as of the Settlement Agreement Date, then the Consumer Price Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics, to obtain the same results that would have been obtained had the base year not been changed. If no conversion factor is available or if the Consumer Price Index is otherwise changed, revised or discontinued for any reason, there shall be substituted in lieu thereof and the term “Consumer Price Index” as used in this Settlement Agreement shall thereafter refer to the most nearly comparable official price index of the United States Government to obtain substantially the same result as would have been obtained had the original Consumer Price Index not
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been changed, revised or discontinued, which alternative index shall be selected by Google and shall be subject to the Registry’s reasonable approval.
(iv) No Carry Forward. If Google’s share of the Registry’s out-ofpocket costs incurred in conducting audits for any calendar year does not exceed the limits set forth in Section 8.2(c)(ii) (Share of Audit Costs), then any difference between Google’s actual contribution toward such costs and such limits may not be carried forward to future years.
(v) Use of LDC for Non-Consumptive Research. If the use by one or more Fully Participating Libraries, other than any Fully Participating Libraries that are Host Sites, Hosting Fully Participating Libraries or Requesting Fully Participating Libraries, of its or their LDCs for Non-Consumptive Research pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research) results in any additional out-of-pocket costs to the Registry of conducting audits of such Fully Participating Libraries, beyond the costs of conducting audits at Fully Participating Libraries that do not make such use of their LDCs, then the Fully Participating Libraries that use their LDCs for such purposes shall bear all such additional costs to the extent reasonable.
8.3 Breaches – General Principles.
(a) Notification of Registry by Google, Fully Participating Library or Host Site; Cure. If Google, a Fully Participating Library or a Host Site becomes aware of (i) a breach of its then-in-effect Security Implementation Plan, other than an Inconsequential Breach, (ii) in the case of Google, a breach by it of any other provision of this Settlement Agreement resulting in Unauthorized Access, (iii) in the case of a Fully Participating Library or a Host Site, any Prohibited Access, or (iv) any Unauthorized Access by Google, any Prohibited Access by a Fully Participating Library or a Host Site or any Third-Party Unauthorized Access (even if Google, the Fully Participating Library or Host Site, as applicable, has complied with this Settlement Agreement and its then-in-effect Security Implementation Plan), it shall (1) promptly notify the Registry of any such breach, Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access; (2) promptly cure any such breach or block such Unauthorized Access (which may include, in the case of Google, temporary suspension of Display Uses of a Book), Prohibited Access or Third-Party Unauthorized Access, as applicable; (3) if such breach cannot be cured or such Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access blocked promptly, report to the Registry on an on-going basis the status of its efforts to do so; (4) promptly notify and confer with the Registry on ways to prevent any such breach or such Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, as applicable, from reoccurring; and (5) promptly negotiate with the Registry (in the case of a breach of its then-in-effect Security Implementation Plan) and with the Registry and/or affected Rightsholder(s) (in the case of an Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access), an appropriate monetary
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remedy, if any, in accordance with Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site), or 8.6 (Remedies for Security Violations by Third Parties), as applicable. Each Audited Party shall report to the auditor in connection with the audit described in Section 8.2(c) (Audits) all breaches of its thenin-effect Security Implementation Plan that pose a reasonable risk of compromising the security of Digital Copies or of proximately causing any other breaches that are not Inconsequential Breaches.
(b) Notification of Registry by Rightsholders. All Rightsholders who wish to make a claim against Google, a Fully Participating Library, and/or a Host Site shall first notify the Registry pursuant to this Settlement Agreement, the Library-Registry (Fully Participating) Agreement and the Host Site-Registry Agreement, respectively.
(c) Notification of Google, Fully Participating Library or Host Site by Registry. The Registry promptly shall provide notice to Google, the Fully Participating Library and/or the Host Site, as applicable, of the claimed breach.
(d) Consolidation of Claims. If the Registry or a Rightsholder has a claim against Google for breach of any provision of this Article VIII (Security and Breach) or against a Fully Participating Library or a Host Site for breach of the analogous provisions incorporated in the Library-Registry (Fully Participating) Agreement or the Host SiteRegistry Agreement, respectively, then, at the option of the allegedly breaching party or the Registry, such claims will be consolidated as set forth below:
(i) Rightsholder Notice. Upon the Registry’s receipt of a notice sent pursuant to Section 8.3(b) (Notification of Registry by Rightsholders), or if the Registry wishes to, on its own, make a claim against Google, a Fully Participating Library, and/or a Host Site, the Registry shall notify all affected Rightsholders whose Books may be subject to Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access of a claim arising out of a breach of a then-ineffect Security Implementation Plan and, in its discretion, of any other claim of Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access affecting more than one Rightsholder; provided, however, that, with respect to a claim against Google or a Fully Participating Library, for so long as the contents of such notification would reasonably be expected to result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, then the Registry, in its discretion, may, or at Google’s or, in the case of a Fully Participating Library, the Fully Participating Library’s request, or in the case of a Host Site, the Host Site’s request, shall, delay in providing such notice; and, provided further, that Google or the Fully Participating Library, as applicable, will promptly notify the Registry when notification under this Section 8.3(d)(i) (Rightsholder Notice)
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would no longer reasonably be expected to result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access.
(ii) Notification of Same Claims. Rightsholders will be required to notify the Registry of all claims arising out of the same claimed breach within ninety (90) days of the date of notice to Rightsholders under Section 8.3(d)(i) (Rightsholder Notice), and the Registry shall have ninety (90) days after the end of such ninety (90)-day period to investigate and pursue the claiming Rightsholders’ claims for breach, provided that the Registry cannot, absent the approval of an affected Rightsholder, settle such a claim, except that affirmative approval from every affected Rightsholder is not necessary so long as those Rightsholders are given prior notice and an opportunity to be heard if they wish.
(e) Claim Resolution. If the Registry does not pursue such claims for breach within the periods specified in Section 8.3(d)(ii) (Notification of Same Claims), a claiming Rightsholder will then have an additional sixty (60) days after the end of such periods to submit the claims for resolution pursuant to Article IX (Dispute Resolution). If the Registry does pursue such claims within such periods, the Registry shall inform Google, the Fully Participating Library or the Host Site, as applicable, of the responses of Rightsholders and, based on those responses, Google, the Fully Participating Library, or the Host Site, as applicable, shall have the opportunity to negotiate a settlement with the Registry. Following agreement on a settlement proposal, the Registry will notify the affected Rightsholders of the potential settlement of such claims, and each affected Rightsholder shall have the opportunity to accept or reject the Registry’s settlement proposal for such Rightsholder’s claim. Any Rightsholder that rejects the Registry’s settlement proposal for his, her or its claim shall have one hundred twenty (120) days after the date of such notice of potential settlement to submit such claim for resolution pursuant to Article IX (Dispute Resolution).
(f) Sole Means. The procedures set forth in this Section 8.3 (Breaches – General Principles) and in Article IX (Dispute Resolution) shall be the sole means for a Rightsholder to bring a claim arising out of this Article VIII (Security and Breach).
(g) Remedies. The monetary damages for any breach of any Security Implementation Plan, or for any breach of this Settlement Agreement resulting in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access would be difficult to approximate and, therefore, the amounts set forth in Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site) and 8.6 (Remedies for Security Violations by Third Parties), as such amounts may be modified by Section 8.7 (Adjustments to Liability Ranges and Caps), are deemed to be reasonable approximations of such damages and shall not be deemed to be penalties. Subject to the last sentence of this Section 8.3(g) (Remedies), such monetary remedies
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(whether or not any damages are awarded) shall be the sole remedy and Google’s, each Fully Participating Library’s and each Host Site’s sole obligation for any such breaches (in addition to injunctive relief to prevent a continuing breach which may be awarded by the Arbitrator pursuant to Article IX (Dispute Resolution)), unless any Fully Participating Library or Host Site elects otherwise pursuant to Section 8.4(d) (Election of Remedies). With respect to all of the monetary remedies set forth in such Section, the monetary remedies applicable to Host Sites are the same as the monetary remedies applicable to the Fully Participating Libraries for Host Sites that are, or are similar to, Fully Participating Libraries, and the same as the monetary remedies applicable to Google for any other Host Sites (e.g., for any commercial enterprises). A Host Site’s Host Site-Registry Agreement shall specify the monetary remedies applicable to such Host Site. If a Fully Participating Library uses its LDC for Non-Consumptive Research pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research) and either (i) breaches its obligation to notify the Registry of such use pursuant to such Section or (ii) an Arbitrator determines, pursuant to Article IX (Dispute Resolution), that such Fully Participating Library has materially breached its obligation, as set forth in such Section, to comply with the provisions of Section 7.2(d) (Research Corpus) as if such Fully Participating Library were a Host Site and as if the Fully Participating Library’s LDC were the Research Corpus, then the Arbitrator may, as a further remedy, if appropriate under the circumstances, determine that such Fully Participating Library may not use its LDC for Non-Consumptive Research; provided, however, that if, to the Registry’s or the Arbitrator’s reasonable satisfaction, the Fully Participating Library demonstrates subsequently that it is able and intends to so comply, then such Fully Participating Library may use its LDC for NonConsumptive Research.
8.4 Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access. Monetary remedies for Google’s, a Fully Participating Library’s or a Host Site’s breach of its Security Implementation Plan that does not result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, are as follows:
(a) Inconsequential Breach. If Google, a Fully Participating Library and/or a Host Site has breached its then-in-effect Security Implementation Plan, but such breach constitutes an Inconsequential Breach, then Google, such Fully Participating Library and/or such Host Site, as applicable, will not be responsible for any damages to the Rightsholder or Registry.
(b) Single or Non-Willful/Intentional Breach of Security Implementation Plan. If Google, a Fully Participating Library and/or a Host Site has breached its then-ineffect Security Implementation Plan, and such breach is not an Inconsequential Breach and the breaching conduct is not willful or intentional misconduct, then the Registry and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, that will be, subject to Section 8.7

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(Adjustments to Liability Ranges and Caps), within the range of zero to twenty-five thousand United States dollars (U.S. $0 - $25,000) in the case of Google and zero to twelve thousand five hundred United States dollars (U.S. $0 –$12,500) in the case of a Fully Participating Library, which amounts may depend, among other things, on the type of breach and whether the breaching conduct was reckless conduct. The breaching party shall pay all such amounts to the Registry. There will be no monetary remedy for the foregoing breaches described in this Section 8.4(b) (Single or Non-Willful/Intentional Breach of Security Implementation Plan), however, if the breaching party (i) promptly and fully reports the breach to the Registry upon discovery and (ii) cures the breach as expeditiously as practical.
(c) Repeated or Willful/Intentional Breaches of Security Implementation Plan. If Google, a Fully Participating Library or a Host Site has breached its then-in-effect Security Implementation Plan, and such breach is not an Inconsequential Breach and either is the second (or more) of the same breach (i.e., the second or more breach with the same root cause) within a six (6)-month period or the breaching conduct is willful or intentional misconduct, then the Registry and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, that will be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), within the range of zero to fifty thousand United States Dollars (U.S. $0 –$50,000) in the case of Google and zero to twenty-five thousand United States dollars (U.S. $0 –$25,000) in the case of a Fully Participating Library, which amounts may depend, among other things, on the number and type of breach and whether the breaching conduct was willful or intentional misconduct. The breaching party shall pay all such amounts to the Registry.
(d) Election of Remedies. Each Fully Participating Library, in its LibraryRegistry (Fully Participating) Agreement, and each Host Site, in its Host Site-Registry Agreement, must, for all breaches that are subject to this Section 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access), make an election to either (i) agree to the monetary remedies specified in Section 8.4(b) (Single or Non-Willful/Intentional Breach of Security Implementation Plan) or 8.4(c) (Repeated or Willful/Intentional Breaches of Security Implementation Plan), or (ii) subject itself to a judicial action or an arbitration pursuant to Article IX (Dispute Resolution) (at the Registry’s election) allowing the Registry to seek all available remedies in equity and at law.
8.5 Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site. Monetary remedies for breaches of this Settlement Agreement by Google, a Fully Participating Library or a Host Site, or the Library-Registry (Fully Participating) Agreement or Host Site-Registry Agreement, as applicable, including breaches of its then-in-effect Security Implementation Plan that result in Unauthorized Access (in the case of Google) or

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Prohibited Access (in the case of a Fully Participating Library or a Host Site) are as follows; provided, however, that if such then-in-effect Security Implementation Plan was not yet approved by the Registry and such Unauthorized Access or Prohibited Access is a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the provisions of Section 8.5(b) (Reckless, Willful or Intentional Misconduct) shall apply and not the provisions of Section 8.5(a) (Inadvertent and Negligent Conduct), unless Google, the Fully Participating Library, or the Host Site, as applicable, demonstrates to the Arbitrator that its implementing of such then-in-effect Security Implementation Plan, including the element in issue, was not reckless.
(a) Inadvertent and Negligent Conduct. If Google, a Fully Participating Library or a Host Site has inadvertently or negligently breached this Settlement Agreement resulting in Unauthorized Access (in the case of Google) or breached this Settlement Agreement, the Library-Registry (Participating) Agreement or the Host SiteRegistry Agreement resulting in Prohibited Access (in the case of a Fully Participating Library or a Host Site), then the Registry and/or the affected Rightsholders, in accordance with Section 8.3(d) (Consolidation of Claims), and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, that will be limited to actual damages. Notwithstanding the foregoing, neither Google, nor a Fully Participating Library nor any Host Site will be responsible for any damages from such Unauthorized Access or Prohibited Access, as applicable, if (i) Google has complied with the process for determining whether a book is in the public domain under the Copyright Act in the United States under Section 3.2(d)(v) (Safe Harbor Public Domain Determination) and, despite such compliance, has mistakenly identified one or more Books as being in the public domain under the Copyright Act in the United States, resulting in such Unauthorized Access or Prohibited Access, as applicable, (ii) Google, a Fully Participating Library or a Host Site has relied on incorrect or incomplete information provided by the Registry and that incorrect or incomplete information caused the Unauthorized Access or Prohibited Access, as applicable, or (iii) the Unauthorized Access or Prohibited Access occurred as a result of reasons beyond the control of Google, the Fully Participating Library or the Host Site, as applicable. In any of the cases set forth in clauses (i)-(iii) above, each breaching party shall cure the breach as expeditiously as practical. Aggregate damages recoverable by Rightsholders for all claims under this Section 8.5(a) (Inadvertent and Negligent Conduct) from a single incident of such breach (i.e., all breaches resulting from the same root cause) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, ten million United States dollars (U.S. $10 million) and, in the case of a Fully Participating Library, three hundred thousand United States dollars (U.S. $300,000).
(b) Reckless, Willful or Intentional Misconduct. If Google, a Fully Participating Library or a Host Site has breached this Settlement Agreement resulting in Unauthorized Access (in the case of Google) or Prohibited Access (in the case of a Fully

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Participating Library or a Host Site), and the breaching conduct was reckless or was willful or intentional misconduct, then the Registry and/or the affected Rightsholders, in accordance with Section 8.3(d) (Consolidation of Claims), and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, which will attempt to approximate actual damages for such breach. Such damages may be in the range beginning with zero and up to the statutory damages available to the affected Rightsholders under Section 504 of the Copyright Act. Aggregate damages recoverable by Rightsholders for all claims resulting from a single incident of such breach (i.e., all breaches resulting from the same root cause) described in this Section 8.5(b) (Reckless, Willful or Intentional Misconduct) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, forty million United States dollars (U.S. $40 million) if the breaching conduct was reckless, and fifty million United States dollars (U.S. $50 million) if the breaching conduct was willful or intentional misconduct, and, in the case of a Fully Participating Library, five million United States dollars (U.S. $5 million) if the breaching conduct was reckless and seven and one-half million United States dollars (U.S. $7.5 million) if the breaching conduct was willful or intentional misconduct.
8.6 Remedies for Security Violations by Third Parties. Remedies for security violations by a third party are as follows:
(a) Compliance with Security Implementation Plan. If, due to a security failure, a third party violates Google’s, a Fully Participating Library’s or a Host Site’s security and obtains Third-Party Unauthorized Access, and such Third-Party Unauthorized Access does not result from the failure of Google, such Fully Participating Library, or such Host Site, as applicable, to comply with its then-in-effect Security Implementation Plan, then neither Google, nor the Fully Participating Library, nor the Host Site, as applicable, will be responsible for any damages to a Rightsholder or the Registry; provided, however, that if such then-in-effect Security Implementation Plan was not yet approved by the Registry and such access is a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the provisions of Section 8.6(b) (Breach of Security Implementation Plan) shall apply and not the provisions of this Section 8.6(a) (Compliance with Security Implementation Plan); provided, further, that a Fully Participating Library is not considered to be a third party when accessing its own LDC, a Host Site is not considered to be a third party when accessing the Research Corpus and a Hosting Fully Participating Library is not considered to be a third party when hosting an LDC of a Requesting Fully Participating Library. Google, the Fully Participating Library and the Host Site will reasonably assist the Registry in seeking remedies against the third party; provided, further, that, in no event shall Google, the Fully Participating Library or the Host Site be required to disclose confidential or personally identifiable information except as compelled by law or valid legal process. Conduct by Google, a Fully Participating Library or a Host Site in compliance with a Security Implementation Plan

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approved by the Registry will not in any event be deemed to be or constitute negligence, recklessness or intentional misconduct.
(b) Breach of Security Implementation Plan. If Google, a Fully Participating Library or a Host Site has breached its then-in-effect Security Implementation Plan and a third party violates Google’s, such Fully Participating Library’s or such Host Site’s security and obtains Third-Party Unauthorized Access as a proximate result of such breach, or if Google, a Fully Participating Library or a Host Site had complied with its then-in-effect Security Implementation Plan but its then-in-effect Security Implementation Plan was not yet approved by the Registry and the access was a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the Registry and/or affected Rightsholders, in accordance with Section 8.3(d) (Consolidation of Claims), and each breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, which will attempt to approximate actual damages for such breach of the Security Implementation Plan, provided that a Fully Participating Library is not considered to be a third party when accessing its own LDC, a Host Site is not considered to be a third party when accessing the Research Corpus and a Hosting Fully Participating Library is not considered to be a third party when hosting an LDC of a Requesting Fully Participating Library. Such damages may be in the range beginning with zero and up to the statutory damages available to the affected Rightsholders under Section 504 of the Copyright Act. Aggregate damages recoverable by Rightsholders for all claims resulting from a single incident of such breach (i.e., all breaches resulting from the same root cause) described in this Section 8.6(b) (Breach of Security Implementation Plan) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, fifteen million United States dollars (U.S. $15 million) if the breaching conduct was negligent, twenty million United States dollars (U.S. $20 million) if the breaching conduct was reckless and twenty-five million United States dollars (U.S. $25 million) if the breaching conduct was willful or intentional misconduct, and, in the case of a Fully Participating Library, two million United States dollars (U.S. $2 million) if the breaching conduct was negligent, three million United States dollars (U.S. $3 million) if the breaching conduct was reckless and five million United States dollars (U.S. $5 million) if the breaching conduct was intentional or willful misconduct.
(c) No Multiple Damages. If the Registry and/or affected Rightsholders recover damages from a third party who has obtained Third-Party Unauthorized Access to one or more Books or Inserts, then any amounts recoverable by the Registry and/or such Rightsholders against Google, a Fully Participating Library or a Host Site under this Section 8.6 (Remedies for Security Violations by Third Parties) for any claim arising out of such Unauthorized Access shall be reduced by the amount of such damages.

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8.7 Adjustments to Liability Ranges and Caps. The liability ranges and caps set forth in Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result In Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site) and 8.6 (Remedies for Security Violations by Third Parties) shall be adjusted on the tenth (10th) anniversary of the Effective Date and every tenth (10th) anniversary thereafter during the term of this Settlement Agreement to that amount which is equal to the product obtained by multiplying (a) the amount specified in each such section, by (b) a fraction, the numerator of which is the Consumer Price Index published for the year immediately preceding the year in which the calculation is made and the denominator of which is the Consumer Price Index published for 2008.
ARTICLE IX — DISPUTE RESOLUTION
9.1 Arbitration of Disputes and Exceptions.
(a) General Rules. Unless otherwise set forth in this Section 9.1 (Arbitration of Disputes and Exceptions), all disputes between and among Google, Rightsholders, the Registry and Participating Libraries arising out of this Settlement Agreement, and disputes pursuant to Section 13.2(d) (Claims for Content that is Neither a Book nor an Insert), shall be subject to this Article IX (Dispute Resolution), including disputes involving Rightsholders of Inserts; provided that disputes relating to Books between member(s) of the Author Sub-Class on the one hand and member(s) of the Publisher SubClass on the other hand shall be subject to this Article IX (Dispute Resolution) only to the extent provided in the Author-Publisher Procedures, and disputes between and among members of the Publisher Sub-Class relating to Books shall not be subject to this Article IX (Dispute Resolution) unless otherwise agreed between such members.
(b) Exceptions. This Article IX (Dispute Resolution) shall not apply to disputes regarding:
(i) Breaches of this Settlement Agreement that occur prior to the Effective Date;
(ii) Google’s obligation to provide Digital Copies to an Additional Contemplated Rightsholder Services Provider pursuant to Section 3.7(c) (Additional Contemplated Rightsholder Services Provider);
(iii) Section 4.7 (New Revenue Models);
(iv) Section 7.2(a)(iv) (Limitation);

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(v) Google’s obligation not to make certain assertions in any proceeding outside the United States pursuant to the last sentence of Section 10.2(b) (Limitations on Releases); or
(vi) Section 17.19 (Destruction).
9.2 Executive Escalation. With respect to all disputes subject to this Article IX (Dispute Resolution), Google, any Plaintiff, any Rightsholder, the Registry, any Fully Participating Library, any Cooperating Library, and/or any Host Site, as applicable, shall immediately submit such disputes to a contact provided by each party to the dispute (“Contact”) for resolution. For thirty (30) days after the submission, or such other period of time as the parties to the dispute may mutually agree (the “Resolution Period”), the Contacts shall meet in person or by telephone and attempt to resolve such dispute. The Contacts must be personnel who have the proper authorizations, from each of their respective parties, to resolve the dispute in a final and binding fashion. The Contact for Google is its General Counsel, or his or her designee. The Registry will appoint a Contact. Any party other than Google and the Registry that is subject to this Article IX (Dispute Resolution) must identify a Contact at the time that a dispute involving such party is first raised or within ten (10) Business Days of receiving notice of a dispute.
9.3 Arbitration.
(a) AAA Arbitration. With respect to all disputes subject to this Article IX (Dispute Resolution) that have not been resolved within the Resolution Period, each of the parties to the dispute shall compile a specific list of the matters relating to the dispute to which it believes the parties to the dispute have not reached agreement, in each case setting forth its respective position in as succinct a manner as reasonably possible (collectively, the “Matters in Dispute”). The parties to the dispute shall, upon expiration of the Resolution Period, agree upon and appoint one or more arbitrators from the pool of potential arbitrators selected in accordance with Section 9.3(c) (Pool of Potential Arbitrators). The selected arbitrator(s) (the “Arbitrator”) shall decide the Matters in Dispute, and only the Matters in Dispute. If the disputing parties fail to select the Arbitrator within fifteen (15) days after the expiration of the Resolution Period, either party may immediately file a petition for arbitration before the American Arbitration Association (the “AAA”). The place of arbitration shall be New York, New York unless the parties to the dispute agree otherwise. If the AAA ceases to operate in New York, New York, then the Court shall, upon the consent of Google and the Registry, appoint another entity to administer the dispute resolution procedures. The arbitrators shall apply New York law to the merits of any dispute or claim, without reference to rules of conflict of law.
(b) Arbitrator. The Arbitrator shall be drawn from a special pool of arbitrators who will be familiar with the area of the dispute (e.g., the publishing industry, security, the Internet) as well as this Settlement Agreement.

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(c) Pool of Potential Arbitrators. Google and the Registry will create the pool of arbitrators in conjunction with the AAA; provided, however, that, for disputes involving any Fully Participating Library, Cooperating Library or Public Domain Library, the arbitrators need not be selected from such pool. The pool will be drawn from one or more of the following:
(i) Current AAA arbitrators;
(ii) Individuals recommended by Google and the Plaintiffs; and
(iii) Individuals identified through a search in conjunction with (or conducted by) AAA.
(d) Expedited Procedures. Except for disputes listed in Section 9.3(e) (Other Disputes), all disputes subject to this Article IX (Dispute Resolution) shall be arbitrated before a single Arbitrator under the Expedited Procedures of the AAA Commercial Arbitration Rules; provided, however, that a party may petition the Arbitrator for discovery, if reasonably necessary for resolution of the dispute and the parties may mutually agree on other procedures.
(e) Other Disputes. Any disputes arising under the following Sections shall be arbitrated under the AAA Commercial Arbitration Rules, unless the parties agree to the procedures set forth in Section 9.3(d) (Expedited Procedures), and the Arbitrator shall be a panel of three (3) arbitrators:
(i) Sections 3.7(a) (Obligation) and (b) (Failure to Provide Contemplated Rightsholder Services);
(ii) Section 3.8 (Effect of Other Agreements and Changes in Law);
(iii) Section 4.1 (Institutional Subscriptions);
(iv) Section 4.2 (Consumer Purchases);
(v) Section 4.5(b) (Discounting and Subsidies);
(vi) Section 4.9 (Economic Terms Renegotiation);
(vii) Section 6.3 (Unclaimed Funds and Public Domain Funds);
(viii) Section 7.2 (Fully Participating Library Uses);
(ix) Section 8.2 (Security Standard, Security Implementation Plan and Security Audits); and

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(x) Any breach of Article VIII (Security and Breach) related to a Security Implementation Plan or claims related to the security of Digital Copies of Books, the Research Corpus or any LDC.
9.4 Notice to Rightsholders. The Registry will provide notice to Registered Rightsholders as required pursuant to Section 8.3(d) (Consolidation of Claims) and concerning the disputes identified in Sections 9.3(e)(i)-(vi) (Other Disputes).
9.5 Notice to Registry; Consolidation. Notice of all disputes subject to this Article IX (Dispute Resolution) will be provided to the Registry as well as AAA. If the Registry believes that multiple disputes raise common issues, the Registry may request the parties to consolidate them; however, certain disputes are subject to mandatory consolidation pursuant to Section 7.2(f)(i) (Fully Participating Libraries), Section 7.2(f)(ii) (Cooperating Libraries) and Section 8.3(d) (Consolidation of Claims).
9.6 Precedential Effect. The AAA or the Registry shall maintain a database of Decisions rendered pursuant to this Article IX (Dispute Resolution) for purposes of this Settlement Agreement only. The Arbitrators may rely on or be guided by such precedent, as appropriate, but stare decisis will not apply. In any dispute between Google and the Registry and/or a Rightsholder subject to this Article IX (Dispute Resolution), however, no such party to such dispute shall seek to admit into evidence, or otherwise refer to, the fact that Google has entered into or concluded any negotiation or arbitration with a Participating Library.
9.7 Decision. The Arbitrator shall decide the Matters in Dispute by written opinion with clear and express language (the “Decision”). The Decision shall be final, binding and nonappealable, and judgment on the Decision may be entered only in the Court. Upon receipt of the Decision, the parties shall immediately effect the resolution in accordance with the Decision.
9.8 Confidentiality. The entire contents of all papers and records related to the arbitration, and, except as provided in Section 8.3(d) (Consolidation of Claims) and Section 9.4 (Notice to Rightsholders) or as agreed by the parties to the arbitration, the fact of the arbitration, shall be deemed to be confidential information of the parties to the arbitration; provided, however, that (a) the Registry may be permitted to disclose the existence and costs of arbitrations to which it is a party in connection with required financial disclosures; and (b) all Registered Rightsholders and parties to an arbitration will have access to all Decisions; provided, further, (i) such Rightsholders and/or parties shall have executed an agreement obligating the Rightsholders and/or parties to use the Decisions only for the prosecution or defense of a claim and not to make the Decisions public; and (ii) names, other personally identifiable information and any confidential information will be redacted from the Decisions before the Decisions are made available to such Rightsholders and/or parties.

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9.9 Fees and Costs. Any Arbitrator’s fees and any costs payable to the Arbitrator shall be shared equally by the parties to the arbitration, unless otherwise agreed under this Settlement Agreement (including the Author-Publisher Procedures). Each party to the arbitration will bear his, her or its own legal fees and expenses, unless otherwise provided under this Settlement Agreement.
9.10 Joinder. Joinder is permissible if required for complete resolution of claim.
9.11 Injunctive Relief. If a party would be prejudiced or irreparably harmed by delay (e.g., the party has need for emergency or temporary injunctive relief, which could be in the form of specific performance), a party has repeatedly, willfully or intentionally not complied with its obligations under this Settlement Agreement, or a party is claiming a breach of Section 15.2 (Obligations), the party claiming a breach of this Settlement Agreement may apply to any court of competent jurisdiction (or, if the dispute involves a Fully Participating Library, the Court) for a temporary restraining order, preliminary injunction, other interim or conservatory relief or injunctive relief, as necessary, without breach of this Article IX (Dispute Resolution) and without any abridgment of the powers of the Arbitrator, while simultaneously following the process set forth in Section 9.2 (Executive Escalation) and, if unsuccessful, the arbitration procedure set forth in this Article IX (Dispute Resolution).
9.12 Continuing Jurisdiction. This Article IX (Dispute Resolution) is subject to Section 17.23 (Court’s Continuing Jurisdiction).
ARTICLE X — RELEASES
10.1 Definitions.
(a) “Claim” means any claim (including any claim relating to any right, contract, obligation, debt, dues, sum of money, or attorneys’ fees), action, cause of action, proceeding, adjustment, execution, offset, judgment, suit, accounting, reckoning, bond, bill, trespass, damage, demand (whether written or oral), liability, controversy, expense, and loss whatsoever, whether arising in law or in equity, based on United States federal, state, territorial or common law, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, existing now or arising in the future.
(b) “Cooperating Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Cooperating Library Releasee that arises out of, with respect to Books and Inserts held by such Cooperating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Cooperating Library Releasee’s provision of Books and Inserts (or Books and Inserts in a

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form Digitized by such Cooperating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Cooperating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or permitted by the applicable Library-Registry (Cooperating) Agreement, as if the Cooperating Library had been a Cooperating Library at the time of such use, and (v) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Settlement Agreement or the Library-Registry (Cooperating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this Settlement Agreement or such Library-Registry (Cooperating) Agreement.
(c) “Cooperating Library Releasees” means each Cooperating Library and all of such Cooperating Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors, and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, students, members, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.
(d) “Fully Participating Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Fully Participating Library Releasee that arises out of, with respect to Books and Inserts held by such Fully Participating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Fully Participating Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Fully Participating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry (Fully Participating) Agreement, as if the Fully Participating Library had been a Fully Participating Library at the time of such use, and (v) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Settlement Agreement or the

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Library-Registry (Fully Participating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this Settlement Agreement or such Library-Registry (Fully Participating) Agreement.
(e) “Fully Participating Library Releasees” means each Fully Participating Library and all of such Fully Participating Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, students, members, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.
(f) “Google Released Claims” means each and every Claim of every Rightsholder that has been or could have been asserted in the Action against any Google Releasee (including all Claims of copyright infringement, trademark infringement, or moral rights violation) that arises out of: (A) any of the following actions taken on or before the Effective Date, (i) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s, Public Domain Library Releasee’s or Other Library Releasee’s provision of Books and Inserts (or the provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Library Releasee or Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of Books and Inserts for Google’s use in Google Products and Services other than such uses that are based on authorizations granted to Google under separate agreements entered into directly with the Rightsholder, (iii) the distribution to each Fully Participating Library, Cooperating Library and Public Domain Library of Digital Copies of Books and Inserts held by such library, (iv) any use by a Fully Participating Library, a Cooperating Library or a Public Domain Library of such Digital Copies, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry Agreement, as if such Fully Participating Library, Cooperating Library or Public Domain Library had been a Fully Participating Library, Cooperating Library or Public Domain Library at the time of such use, and (v) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s or Public Domain Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Settlement Agreement, or a Library-Registry Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this Settlement Agreement or such Library-Registry Agreement; and (C) on or before sixty (60) days after the Settlement Agreement Date, the distribution to each Other Library of Digital Copies of Books and Inserts held by such library.

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(g) “Google Releasees” means Google and all of its past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, owners, partners, governors, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives, provided, however, that the Google Releasees do not include any library or any other Person providing a Book or Insert to Google for purposes of Digitization by Google or providing Books and Inserts to Google in a Digitized form, except to the extent such library acts as a contractor to Google as contemplated by Section 3.1 (Digitization, Identification and Use of Books).
(h) “Other Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Other Library Releasee that arises out of, with respect to Books and Inserts held by such Other Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Other Library Releasee’s provision of such Books and Inserts (or Books and Inserts in a form Digitized by such Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, and (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for use in Google Products and Services; and (B) on or before sixty (60) days after the Settlement Agreement Date, such Other Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts (but, for purposes of clarification, not such Other Library Releasee’s use of such Digital Copies).
(i) “Other Library Releasees” means each Other Library, and all of such Other Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, members, students, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.
(j) “Public Domain Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Public Domain Library Releasee that arises out of, with respect to Books and Inserts held by such Public Domain Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Public Domain Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Public Domain Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Public Domain Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, and (iv) such Public Domain Library

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Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Settlement Agreement or the Library-Registry (Public Domain) Agreement when that act or omission is undertaken by a Person who is authorized to undertake under this Settlement Agreement or such Library-Registry (Public Domain) Agreement.
(k) “Public Domain Library Releasees” means each Public Domain Library and all of such Public Domain Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, members, students, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.
(l) “Releases” means the releases set forth in Section 10.2 (Releases) by all of the Rightsholder Releasors and by all of the Google Releasees.
(m) “Rightsholder Releasors” means Plaintiffs, any and all Rightsholders, and each Plaintiff’s and Rightsholder’s heirs, executors, administrators, beneficiaries, predecessors, successors, assigns, employees, and agents, any person claiming by or through any Rightsholder and any Person representing any or all Plaintiffs and/or Rightsholders.
(n) Scope of Release. Where, in this Article X (Releases), Claims are released, such release includes the reproduction, distribution, transmission, display, and preparation of derivative works of such Books or Inserts undertaken for the purpose of, and only to the extent reasonably required for, making the released use, by whatever means and technology.
10.2 Releases.
(a) Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees. Without further action by anyone, as of the Effective Date, the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged (i) the Google Released Claims against each and every one of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (ii) the Fully Participating Library Released Claims against each and every one of the Fully Participating Library Releasees, (iii) the Cooperating Library Released Claims against each and every one of the Cooperating Library Releasees, (iv) the Public Domain Library Released Claims against each and every one of the Public Domain Library Releasees, (v) the Other Library Released Claims against each and every one of the Other Library Releasees, provided that no Other Library Released Claims are

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released, relinquished, settled or discharged against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, (vi) all Claims against the Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees, Class Counsel and Plaintiffs that relate in any way to the commencement, prosecution, defense or settlement of the Action or to the negotiation or execution of this Settlement Agreement, the Library-Registry Agreements or the Supplemental Agreement Regarding Right to Terminate, and (vii) any and all Claims for attorneys’ fees, costs or disbursements incurred by Class Counsel or other counsel representing Plaintiffs in connection with or related in any manner to the Action, the settlement of the Action, including the negotiation and execution of this Settlement Agreement, the Author-Publisher Procedures, the Library-Registry Agreements or the Supplemental Agreement Regarding Right to Terminate, or the administration of the Action provided that in the case of this clause (vii) Google meets its payment obligations under Section 5.5 (Attorneys’ Fees).
(b) Limitations on Releases. The Releases are subject to the following: (i) nothing in this Settlement Agreement releases or adversely affects any Claims of any Settlement Class members who opt out of the Settlement by the Opt-Out Deadline, (ii) no Claims are released with respect to any Digitization or any other form of copying or use of Books or Inserts outside the United States (e.g., making a copy of, or using, a Book in Finland), (iii) no Claims are released with respect to any acts or omissions after the Settlement Agreement Date that, if occurring after the Effective Date, would not be authorized by this Settlement Agreement, (iv) no Claims are released with respect to breaches of this Settlement Agreement after the Effective Date, and (v) no Claims are released with respect to any acts of copying, transmission or distribution of a Book or Insert that Google undertakes in response to a search or other request of a user outside of the United States that results in displaying parts or all of such Book or Insert in such user’s jurisdiction, except if such display is lawful in such jurisdiction or Google has the appropriate permission for such display in such jurisdiction. Google agrees that, in asserting or responding to any legal claim outside the United States for copyright infringement arising from any use of Books or Inserts outside the United States, it will not in any way assert, including by way of defense, that, based on the fact that this Settlement Agreement or the Final Judgment and Order of Dismissal authorizes, or releases Claims relating to, the making of copies or uses of Books and Inserts in the United States, either applicable non-United States law or a Rightsholder authorized such use of Books or Inserts outside the United States.
(c) Effect of Dismissal. The Final Judgment and Order of Dismissal shall have the effect of a dismissal with prejudice of all Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims and Other Library Released Claims as though each Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Releasee and Other Library Releasee had been named a defendant in the Action, and the Final Judgment and Order of Dismissal

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shall bar all such Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims and Other Library Released Claims by any Rightsholder Releasor, provided that the Final Judgment and Order of Dismissal shall have no such effect with respect to, and shall not bar, any Other Library Released Claims against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy.
(d) Bar Order. The Final Judgment and Order of Dismissal shall forever bar (a) all Rightsholder Releasors from instituting, maintaining, prosecuting, assigning or collecting on any and all (i) Claims against any Google Releasee, Fully Participating Library Releasee, Cooperating Library Releasee, and Public Domain Library Releasee that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or to the negotiation or execution of this Settlement Agreement or the Library-Registry Agreements, (ii) Google Released Claims against any of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (iii) Fully Participating Library Released Claims against any of the Fully Participating Library Releasees, (iv) the Cooperating Library Released Claims against any of the Cooperating Library Releasees, (v) the Public Domain Library Released Claims against any of the Public Domain Library Releasees, and (vi) Other Library Released Claims against any of the Other Library Releasees, provided that no Rightsholder Releasor is barred from instituting, maintaining, prosecuting, assigning or collecting on any Other Library Released Claim against an Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, including without limitation, by participating in, or recovering as a result of, any class or representative action, whether under United States federal or state law, in which any such Google Released Claims, Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims, or Other Library Released Claims have been or may be brought, and (b) all Google Releasees, all Cooperating Library Releasees, all Fully Participating Library Releasees, all Public Domain Library Releasees and all Other Library Releasees from instituting, maintaining, prosecuting, assigning or collecting on, any and all Claims against any Rightsholder Releasor or Class Counsel that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or the negotiation and execution of this Settlement Agreement or the Library-Registry Agreements.
(e) Release of Rightsholder Releasors and Class Counsel. Without further action by anyone, as of the Effective Date, each of the Google Releasees, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement,

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prosecution or settlement of the Action, or the negotiation and execution of this Settlement Agreement.
(f) Mutual Releases by Insert/Book Rightsholder Releasors. Without further action by anyone, as of the Effective Date, each of the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged Claims arising out of the inclusion, removal or exclusion of a Book or an Insert in or from Google Products and Services by (i) any Rightsholder Releasor that has a Copyright Interest in an Insert against each and every Rightsholder Releasor that has a Copyright Interest in a Book that contains such Insert and (ii) any Rightsholder Releasor that has a Copyright Interest in a Book against each and every Rightsholder Releasor that has a Copyright Interest in an Insert contained in such Book.
(g) Waiver of Section 1542. With respect to any and all of the Releases, upon the Effective Date and without further action, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, all Rightsholder Releasors and Google Releasees shall be deemed to have, and by operation of the Final Judgment and Order of Dismissal shall have, fully, finally, and forever expressly waived and relinquished, to the fullest extent permitted by law, any and all provisions, rights, and benefits of Section 1542 of the California Civil Code and any and all provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation or principle of common law that is similar, comparable, equivalent or identical to Section 1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Each Rightsholder Releasor and Google Releasee may hereafter discover facts other than or different from those that he, she, or it knows or believes to be true with respect to the Claims released by the Releases, but, notwithstanding Section 1542 and any similar provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation or common law principle, each such Person hereby expressly waives and fully, finally, and forever settles and releases, upon the Effective Date, any known or unknown, suspected or unsuspected, contingent or non-contingent Claim that is released by the Releases, without regard to the subsequent discovery or existence of such different or additional facts.
(h) Foreign Claims. No Rightsholder releases any Claim for the reproduction, distribution, transmission, display, adaptation or preparation of derivative works of any Book or Insert in any jurisdiction outside the United States.

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ARTICLE XI — PRELIMINARY SETTLEMENT APPROVAL
As soon as practicable after the Settlement Agreement Date, Plaintiffs shall file a Motion For Preliminary Settlement Approval, together with a Proposed Order For Preliminary Settlement Approval substantially in a form attached hereto as Attachment H ([Proposed] Order Granting Preliminary Settlement Approval).
ARTICLE XII — CLASS NOTICE PROGRAM
In connection with the motion filed pursuant to Article XI (Preliminary Settlement Approval), Class Counsel will submit to the Court a proposed Notice of Class Action Settlement (“Notice”) and a Summary Notice of Class Action Settlement (“Summary Notice”) substantially in the forms attached hereto, respectively, as Attachment I (Notice of Class Action Settlement) and Attachment J (Summary Notice of Class Action Settlement). Class Counsel will recommend to the Court that the Class Notice Program provide notice to the widest practicable group of Settlement Class members inside and outside the United States, and that the Class Notice Program will consist of the following: (a) Direct Notice – sending the Notice (translated from English whenever appropriate) by email or first class mail, postage prepaid, to those Settlement Class members that can be identified by any reasonable means, with notice by email used whenever possible, and postal notice limited to those Settlement Class members whose email addresses are unavailable; (b) Paid Media – publishing the Summary Notice (translated from English whenever appropriate) in the publications listed on the Paid Media Schedule attached hereto as Attachment K (Paid Media Schedule), or reasonable substitutes, if necessary (e.g., if certain publications decline to publish the Summary Notice), that will provide the same level of coverage to the intended audience, as well as using online advertising directing users to the Settlement Website; (c) Earned Media – utilizing press coverage, including the issuance by Google and the Plaintiffs of joint press releases and convening of a joint press conference, which will, among other things, provide the press with the address of the website dedicated to the Settlement as referenced below and contact information for Settlement Class members to learn about the Settlement and how to obtain the Notice; (d) Additional Outreach – providing notice materials to websites and organizations whose constituencies may include Settlement Class members and encouraging them to direct interested parties to the Settlement Administrator or the Settlement Website; and (e) Settlement Website – maintenance of a website dedicated to the Settlement and through which the Notice, this Settlement Agreement, and other relevant information (translated from English whenever appropriate) will be made available (the “Settlement Website”). In connection with clause (d), from the Settlement Agreement Date to the Opt-Out Deadline, Google prominently will display a statement on the Google Book Search home page (http://books.google.com/) informing users that an agreement has been reached with authors and publishers and linking to a user information page. At the top of such user information page immediately beneath its title, Google will display a statement directing

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authors, publishers and copyright holders to visit the Settlement Website and linking to the Settlement Website. All Administrative Costs, including the costs of the Class Notice Program, shall be paid solely out of the Settlement Fund.
ARTICLE XIII — SETTLEMENT ADMINISTRATION PROGRAM
13.1 Registration and Completing Claims. To receive the benefits of the Settlement, a Person claiming to be a Rightsholder or acting on behalf of a Rightsholder (a “Claimant”) must provide to the Registry the information set forth below on a claim form that Plaintiffs and Google will submit to the Court for its approval prior to the Notice Commencement Date (“Claim Form”); provided that, if a Publisher Sub-Class Claimant selects Section 13.1(c)(ii)(2)(B) rather than Section 13.1(c)(ii)(2)(A) for a Book, then Claimant may not make a claim for a Cash Payment for that Book and may not Remove that Book, but Claimant’s rights under the Settlement Agreement (including the right to exclude a Book from Display Uses) will not otherwise be affected by such selection. Claimants will be able to complete and submit their Claim Forms on the Settlement Website, by postal mail, and otherwise as the Registry may determine in order to maximize Rightsholder efficiency in completing the Claim Forms.
(a) General Information. A Claimant must provide the following:
(i) his, her or its name and contact information, including postal address, telephone number and, if available, email address, and if the Claimant is, or is acting on behalf of, a U.S. Person, that Person’s social security number or other tax identification number; and
(ii) an attestation that (1) all of the information submitted on the Claim Form is true to the best of his, her or its knowledge, information and belief, and (2) the Claimant has a good faith belief that he, she or it holds a Copyright Interest in the Book or the Insert that is the subject of the claim, or that the Person who holds such a Copyright Interest has authorized the Claimant to act on such Person’s behalf.
(b) Pre-Population of Claim Forms. Based on a Claimant’s identification of Books, Google, through a search and selection interface, will pre-populate information regarding those Books in the Settlement Website’s Claim Form for Books.
(c) Books. To claim a Book (not including its Inserts), a Claimant must:
(i) identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Book;
(ii) indicate on the Claim Form, to the best of Claimant’s knowledge, whether such Book:

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(1) is or is not a work for hire, and
(2) for a Publisher Sub-Class member Claimant, whether (A) such Publisher Sub-Class member is highly confident that the Book is not reverted (based, e.g., on the individual Book or contract for the Book) or (B) such Publisher Sub-Class member is confident that the Book is not reverted (based, e.g., on the type of Book or type of contract for the Book), or
(3) for an Author Sub-Class member Claimant, whether (A) such Book is or is not reverted or (B) Claimant does not know whether such Book is reverted;
(iii) provide information sufficient to identify such Book, including, at a minimum, either the (1) title of the Book and the name(s) of the author(s) and/or editors of the Book or (2) ISBN (if the Book has an ISBN); and
(iv) state either (1) that such Claimant believes that such Book is not a “United States work,” as defined in 17 U.S.C. § 101 or (2) that such Claimant believes that such Book was registered with the U.S. Copyright Office by the Notice Commencement Date. A Claimant may provide information through a data feed, an electronic spreadsheet or such other means as the Registry may specify in order to maximize Rightsholder efficiency in completing the claim forms.
(d) Inserts. To claim an Insert, a Claimant must identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Insert and must provide information sufficient to identify such Insert, which information shall include:
(i) identification or a description of the content of the Insert, and identification of the Book, Public Domain Book or Government Work in which the Insert appears;
(ii) a statement that, although the Claimant believes such permission was required, (1) the Claimant did not give permission for Online use of the Insert as part of the work in which the Insert appears, or (2) if such permission was granted, it was no longer in effect on or after June 1, 2003; and
(iii) a statement either (1) that such Claimant believes that the Insert is not part of a work that was first published in the United States or (2) that such Claimant believes that such Insert, either alone or as part of another work, was registered with the U.S. Copyright Office by the Notice Commencement Date.

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13.2 Validating and Challenging Claims.
(a) Registry Claim Review. The Registry may review claim forms to verify that the information provided by a Claimant is accurate and supports the claim that the Claimant, or the Person on whose behalf the Claimant is acting, is a Rightsholder of a Book or an Insert. Google may also provide to the Registry any information that Google may have regarding the validity of claims. The Registry may challenge the validity of a claim either on its own accord or based on a dispute between or among Rightsholders under the Author-Publisher Procedures. If the Registry reasonably requests that a Claimant provide additional information to validate such claim, the Claimant shall provide such information if it is within his, her or its possession or control. The Registry may consider such information and, in its discretion, consult with the Claimant to validate the claim. The Registry will advise the Claimant whether the Registry has validated or rejected its claims.
(b) Claimant-Registry Challenges. The Claim Form will provide that the Claimant may challenge, pursuant to Article IX (Dispute Resolution), any Registry decision not to validate his, her or its claim.
(c) Google-Claimant Challenges.
(i) As set forth in this Section 13.2(c) (Google-Claimant Challenges), to deter and discover fraud, mistake, intentional misconduct or negligence by Claimants in submitting Claim Forms, Google may challenge whether a Claimant is a Rightsholder of the Book or Insert that he, she or it has claimed only in the case that the Claimant has requested Cash Payments or Removal.
(ii) Google may only make such a challenge under the following conditions:
(1) in the case of requests for Cash Payments, Google may only make such a challenge if the total amount of all claims for Cash Payments exceeds forty-five million United States dollars (U.S. $45 million), and
(2) in the case of requests for Removal of Books that are not Commercially Available, Google may only make such a challenge if the total number of Books that are not Commercially Available that Claimants have directed to be Removed exceeds two hundred thousand (200,000).
(iii) Further, Google may only make such a challenge if:
(1) (A) such Claimant has filed such claims for more than (I) a number of Books or Inserts agreed between Google and the Plaintiffs in

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the case of a challenge brought pursuant to clause (ii)(1) above, or (II) another number of Books agreed between Google and the Plaintiffs in the case of a challenge brought pursuant to clause (ii)(2) above, in a confidential letter agreement, such numbers not disclosed herein for the purpose of fraud prevention, or (B) Google believes that such Claimant is a Person that has registered multiple claims under one or more aliases, and
(2) no dispute between such Claimant and any other Claimants for the Book was, or is being, resolved pursuant to the Author-Publisher Procedures.
(iv) Any challenge in the case of:
(1) clause (ii)(1) above may be made no later than ninety (90) days after the later of (A) the date Google receives the Registry’s final report under Section 13.5 (Final Report Regarding Cash Payments) or (B) the Effective Date, or
(2) clause (ii)(2) above may be made no later than ninety (90) days after the later of (A) the condition in clause (ii)(2) has been met, (B) the Effective Date or (C) the date the request for Removal was made.
(v) Any challenge brought pursuant to this Section 13.2(c) (GoogleClaimant Challenges) must be based on Google’s good faith belief, supported by evidence, that the Claimant’s claim may be invalid. Google shall not challenge claims in an effort to deter Claimants from submitting valid claims.
(vi) Google will initiate challenges by providing notice to the Registry, and the Registry will forward such notice to the Claimant. Google will attempt to resolve the challenge with the Registry, or another representative chosen by the Claimant, on behalf of the Claimant. If Google is unable to resolve the challenge with the Registry or such other representative on behalf of the Claimant and continues to have a good faith belief, supported by evidence, that the Claimant’s claim may be invalid, then Google may initiate dispute resolution pursuant to Article IX (Dispute Resolution). Provided that the Claimant completes the Claim Form as required, including providing all required attestations, Google will bear the burden of providing clear and convincing evidence, including significant evidence specific to the Books or Inserts that are the subject of the claim, which evidence is reviewed by an individual such as a Google attorney, that a reasonable number of the Claimant’s claims within a set of claims identified by Google are invalid; provided that information about Books other than those that are the subject of Claimant’s claims will only be used by Google to challenge the Claimant’s claims for an imprint if Google shows that such information is relevant to such claims; provided, further that evidence of industry-wide baseline

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error rates in claims filed with the Registry is not clear and convincing evidence. (For purposes of this Section 13.2(c)(vi), a “set of claims,” means, with respect to claims of a member of the Publisher Sub-Class, claims of Books published by such member’s imprint, that are similar with respect to such evidence and that share other characteristics, such as genre and date of publication.) If Google meets this burden, the Claimant will bear the burden of proving the validity of the claims within such set. If Google does not meet this burden, Google will bear the burden of proving the invalidity of the challenged claims.
(vii) A claim for a Commercially Available Book shall not be subject to any challenge under this Section 13.2(c) (Google-Claimant Challenges) unless, upon review of the Claim Form and other information that Google may reasonably consult, there is no apparent link between the Claimant and the publisher of the Book. In any challenge with respect to a Commercially Available Book where Google asserts that the claim is invalid because rights in the Book have reverted, Google shall provide clear and convincing evidence specific to such Book.
(d) Claims for Content that is Neither a Book nor an Insert. Nothing in this Settlement Agreement obligates Google to take directions for which this Settlement Agreement provides, or to make Cash Payments, with respect to content that is not a Book or an Insert. Any Claimant may dispute a determination by Google or the Registry that the content that such Claimant has claimed is not a Book or an Insert only pursuant to Article IX (Dispute Resolution).
13.3 Time for Filing Deadline for Registration/Claim Forms. Rightsholders may register to participate in the Settlement at any time, provided that a Rightsholder who may be eligible for a Cash Payment pursuant to Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) shall be required to complete and submit the portion of the Claim Form relating to the claim for such Cash Payment within one year of the Notice Commencement Date or such other time as the Court may order.
13.4 Registry Determination of Rightsholder. The Registry will maintain a database of Rightsholders and their respective rights under, and directions made pursuant to, this Settlement Agreement. Except as provided in Section 13.2 (Validating and Challenging Claims), in the event of a dispute as to such rights and directions, the Registry will determine the appropriate Rightsholder(s) (for Books, pursuant to the Author-Publisher Procedures) or, if the Registry cannot resolve any such dispute, such dispute will be resolved as provided in Article IX (Dispute Resolution). Until such determination is made, the Registry shall not make any Cash Payment or other payment, or implement any direction for Removal, exclusion, inclusion, or pricing, or any other directions with respect to the matters that are the subject of such dispute.

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13.5 Final Report Regarding Cash Payments.
(a) Draft Final Report. Within a reasonable time after the period set forth in Section 13.3 (Time for Filing Deadline for Registration/Claim Forms) for a Rightsholder to submit a Claim Form for a Cash Payment, the Registry shall issue a draft final report to Google and Class Counsel setting forth: (i) the number of valid Claim Forms requesting such Cash Payment, (ii) a list of the Books claimed, (iii) a list of the Inserts claimed and the Books, Government Works or Public Domain Works in which they appear, and (iv) the amount of the Supplemental Deposit, if any, that Google is required to make pursuant to Article V (Other Settlement Benefits) based on the information in such draft final report.
(b) Further Information. Based on the draft final report, Google will provide the following information:
(i) any Book for which a Cash Payment has been requested (1) that has the same Principal Work as another Book for which a Cash Payment has also been requested and (2) where the soft cover Book does not contain additional or different Protected Expression as compared to the hard cover Book but a Cash Payment has been requested for both,
(ii) any Insert for which a Cash Payment has been requested (1) for appearance of the Insert in more than one Book, Principal Work or Government Work, and (2) for the Book in which such Insert appeared as content that was not an Insert, and
(iii) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an Insert.
(c) Final Report. The Registry will issue a final report setting forth the information in Section 13.5(a) (Draft Final Report), as amended to take into account the further information provided by Google pursuant to Section 13.5(b) (Further Information) and to be consistent with Google’s obligations under Section 5.1(a) (Cash Payments).
(d) Disputes. Any disputes regarding the final report shall be resolved pursuant to Article IX (Dispute Resolution).
13.6 No Liability For Settlement or Registry Administration. No Person will have any claim against Plaintiffs, Class Counsel, Google, the Registry, the Settlement Administrator or any agent of any such Person for (a) any decision with respect to any Cash Payment or (b) actions taken with respect to any Cash Payments or other disbursements from the Settlement Fund. Except as expressly set forth herein, this Settlement Agreement is not intended to, nor shall it in any way be construed or

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interpreted to, create or support any cause of action or any claim for damages or injunctive relief against Plaintiffs, Class Counsel, the Registry, Settlement Administrator or other agents designated by Class Counsel, Google or its counsel, or any third party.
ARTICLE XIV — FINAL FAIRNESS HEARING
Plaintiffs shall, at least one week prior to the hearing for final approval of this Settlement Agreement (the “Final Fairness Hearing”), as set by the Court, or some other time as the Court may order, file a Motion for Final Judgment and Order of Dismissal substantially in the form attached hereto as Attachment L ([Proposed] Final Judgment and Order of Dismissal).
ARTICLE XV — CONFIDENTIALITY
15.1 Confidential Information. “Confidential Information” means any information relating to or disclosed in the course of implementing this Settlement Agreement by any Plaintiff or Google, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, including the content of negotiations between any of Plaintiffs and Google, information about any customers, resellers and advertisers, technical processes and algorithms, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data or pricing of any Plaintiff or Google, including information that may be disclosed by an auditor under Sections 4.6(e) (Audit Rights), 6.3(d) (Audit Rights) and 8.2(c) (Audits). “Confidential Information” shall not include information (a) that members of the Settlement Class reasonably have the right to know as Settlement Class members represented in the Action, (b) already lawfully known by the receiving party without an obligation of confidentiality, (c) independently developed by the receiving party at any time without use of or reference to Confidential Information, (d) disclosed in published materials, (e) generally known to the public, or (f) lawfully obtained from any third party without breach of such third party’s obligations of confidentiality.
15.2 Obligations. Confidential Information shall be governed by the Settlement Discussions Confidentiality Agreement and such agreement shall continue to be in effect according to its terms. The Registry and Google will enter into a non-disclosure agreement that will supersede the Settlement Discussions Confidentiality Agreement on a going forward basis.
15.3 Confidentiality of Rightsholder Information. Google shall maintain and keep in strict confidence, and shall not use or disclose for any purpose other than to effectuate this Settlement Agreement, any Rightsholder’s personally identifiable information (i.e., any information that can be used to uniquely identify, contact or locate a single person, including the Rightsholder’s computer’s unique identifier information) that Google receives in connection with the process by which Rightsholders register with

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the Registry, claim Books and Inserts or otherwise participate under this Settlement Agreement, whether such information is received from the Registry or from the Rightsholder. These restrictions, however, do not apply to Rightsholder information that is publicly available or obtained by Google from other sources, and shall not limit any uses by Google that are authorized by the Rightsholder.
15.4 Disclosures Required by Law. In the event disclosure of Confidential Information is required of any party under the laws, rules or regulations of any applicable governing body, the party requested to make the disclosure (the “Disclosing Party”) will (a) only disclose that portion of the Confidential Information of the other party (the “Other Party”) reasonably required to be disclosed, (b) submit a request to such governing body that the Confidential Information or portions thereof receive confidential treatment under the laws, rules and regulations of such governing body or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body, (c) provide notice to the Other Party in advance of the disclosure so the Other Party may, at its election, seek confidential treatment for the Confidential Information, a protective order or other appropriate remedy, relief or assurances, and (d) co-operate with the Other Party to obtain such confidential treatment, orders or other remedies, relief or reliable assurances that confidential treatment will be afforded the Confidential Information so disclosed. Disclosure under this Section 15.4 (Disclosures Required by Law) shall not relieve the Disclosing Party of its obligations of confidentiality generally under this Settlement Agreement. In no event shall the Disclosing Party oppose an action by the Other Party to obtain a protective order or other relief requiring that Confidential Information to be disclosed under this Section 15.4 (Disclosures Required by Law) be treated confidentially.
ARTICLE XVI — RIGHT TO TERMINATE AGREEMENT
Google, the Author Sub-Class, and the Publisher Sub-Class each will have the right but not the obligation to terminate this Settlement Agreement if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met. Any decision by Google, the Author SubClass or the Publisher Sub-Class to terminate this Settlement Agreement pursuant to this Article XVI (Right to Terminate Agreement) will be in accordance with the procedures set forth in the Supplemental Agreement Regarding Right to Terminate. The Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffs and Google, and will not be filed with the Court except as provided therein.
ARTICLE XVII — MISCELLANEOUS PROVISIONS
17.1 Good Faith Efforts. Google and Plaintiffs shall cooperate in good faith to effectuate this Settlement Agreement as soon as practicable, including cooperating as set forth herein in seeking the Court’s certification of the Settlement Class, the Court’s

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preliminary and final approval of the Settlement, and the Court’s approval of procedures to secure the prompt, complete and final dismissal with prejudice of the Action. Further, Google and the Registry shall at all times perform their respective obligations under this Settlement Agreement in good faith and with fair dealing.
17.2 Plaintiffs’ Participation in Settlement. None of the Representative Plaintiffs or Associational Plaintiffs will opt out of or object to the Settlement.
17.3 Final if Not Terminated. This Settlement Agreement, if not terminated pursuant to any provision hereof, shall become final on the Effective Date and shall expire on the date on which the last U.S. copyright in any Book or Insert terminates.
17.4 Dismissal of Action. Upon the Final Approval Date, Plaintiffs and Rightsholders shall be deemed to have stipulated that the Action shall be dismissed with prejudice.
17.5 Effect of Termination. In the event this Settlement Agreement does not become final for any reason, this Settlement Agreement shall be null and void (except for the second sentence of Section 5.3(h) (Google Rights and Obligations), the first sentence of Section 15.2 (Obligations) and Section 17.6 (Reimbursement if Terminated), which will remain in full force and effect) and of no force and effect (unless all Plaintiffs and Google agree to proceed with the Settlement as they may agree to modify it (subject to Section 7.2(f)(iv) (No Modification Without Consent)), in which event Plaintiffs and Google shall proceed with this Settlement Agreement as so modified), and this Settlement Agreement and all negotiations and proceedings connected with it shall be without prejudice to the rights of either Google or any of the Plaintiffs, shall not be deemed or construed to be an admission by Google or any of the Plaintiffs of any fact or matter, and shall not be used in any way in the Action or in any other action or proceedings, and all parties shall have the same legal rights and obligations as they had before the Settlement Agreement Date with respect to the matters covered by this Settlement Agreement, except with respect to payments of Administrative Costs. In addition, the Settlement Discussions Confidentiality Agreement shall continue to be in effect according to its terms.
17.6 Reimbursement if Terminated. Subject to Article XVI (Right to Terminate Agreement), if this Settlement Agreement becomes null and void pursuant to Section 17.5 (Effect of Termination), within five (5) Business Days of notice by Google to Plaintiffs of such event, the balance of the Settlement Fund, including interest, shall be disbursed to Google by wire transfer into an account designated by Google, less all Administrative Costs incurred or owing for the Settlement Administration Program. For purposes of the disbursement made pursuant to this Section 17.6 (Reimbursement if Terminated), no deduction shall be made for fees of Class Counsel for the Author SubClass or for any costs other than those Administrative Costs already incurred. Class

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Counsel shall not be responsible for any losses, principal or otherwise, of the Settlement Fund.
17.7 Jurisdiction.
(a) Use Outside the United States.
(i) No Other Authorizations. This Settlement Agreement does not authorize the Digitization or any other form of copying, Display Use, NonDisplay Use, or any other use of Books and Inserts outside the United States.
(ii) Foreign Public Domain Works. Further, with respect to Books that are not in the public domain under the Copyright Act in the United States, but are in the public domain in any jurisdiction outside the United States, this Settlement Agreement neither authorizes nor prohibits Google from exploiting those Books in such jurisdiction; provided, however, that, in countries that do not have a copyright law that provides for a copyright term of at least the life of the author and fifty (50) years after the author’s death for literary works that are not anonymous or pseudonymous where copyright is granted to natural persons, then Google will not treat Books as in the public domain in such jurisdiction.
(iii) Notification of Foreign Use. Google agrees to notify the Registry if and when Google commences any use of Books or (to Google’s knowledge) Inserts outside of the United States that displays Protected material other than material that is allowed to be displayed in Snippet Display.
(b) Public Domain. Except as specifically set forth in Section 17.7(a)(ii) (Foreign Public Domain Works), nothing herein restricts Google’s use of public domain material, nor are any authorizations given with respect to such material.
17.8 Contact with Rightsholders. Google may contact Rightsholders through the Registry with announcements related to uses of their Books and Inserts authorized by this Settlement Agreement or the Registry, provided that such announcements are no more than quarterly in frequency and provided that any Rightsholder may opt out of receiving such announcements. Google shall notify Rightsholders of the existence of the Registry and the means by which Rightsholders can register and/or submit claims with the Registry, for example, through a link to the Registry on a page soliciting participation in the Google Partner Program, before initiating communication concerning the Settlement with Rightsholders with whom Google is not already in communication.
17.9 Separate Agreements with Settlement Class Members. Google may already have, and may in the future enter into, separate agreements directly with individual members of the Settlement Class regarding their Books, e.g., through the Google Partner Program. Nothing herein restricts or affects Google’s and such members’

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right to enter into or maintain such separate agreements; however, except with respect to any member of the Settlement Class with whom Google has such separate agreements as of the Settlement Agreement Date, at the outset of any initial communication with such a member regarding matters under this Settlement Agreement, Google shall inform such member (a) of the reason for the communication, (b) that such member’s interests are affected by the terms of this Settlement Agreement and are represented by the Registry, together with a brief explanation of both, (c) that such member is free to continue to have his, her or its interests so represented, as opposed to dealing directly with Google, and (d) if such member remains interested in dealing directly with Google, Google is prepared to do so. The non-exclusive rights of Google under this Settlement Agreement are in addition to any rights granted to Google by any Rightsholder in any such separate agreement; provided, however, that any specific prohibitions imposed upon Google by a Rightsholder in any such other agreement shall apply during the term of such other agreement. In cases in which Google has, on or after the Settlement Agreement Date, a direct agreement with a Rightsholder with respect to that Rightsholder’s Books (through the Google Partner Program or otherwise), then the payments required to be paid to the Registry set forth in Article IV (Economic Terms for Google’s Use of Books) shall not apply to those Books and the payments set forth in the applicable direct agreement will apply; provided, however, that Google shall comply with the procedures in Section 3.5(c) (Take-Down or Transfer Requests).
17.10 Scan Quality. Google will strive to detect and eliminate errors in the Digitization quality or Metadata. Google makes no guarantees, however, regarding the Digitization quality or Metadata quality of any Book or Insert and, accordingly, Google will not be deemed in breach of the authorizations under this Settlement Agreement due to omissions of text that may occur unintentionally due to technical limitations.
17.11 Use of Contractors. If and to the extent that Google uses third parties to exercise its rights, including to Digitize Books or Inserts, or to perform any of its obligations, as set forth in this Settlement Agreement, Google shall, at all times, be and remain responsible for ensuring that such parties act in accordance with Google’s obligations under this Settlement Agreement. Google shall be liable for any such third party’s nonconformance with or breach of this Settlement Agreement, and such breaches shall be regarded as breaches by Google for purposes of Article VIII (Security and Breach).
17.12 Effect of Right to Exclude. Google shall not base its determination of whether to sell a Book through Consumer Purchase or Institutional Subscriptions solely on the decision of the Rightsholder to exclude that Book from a particular Display Use, unless Google demonstrates that its inability to make Preview Use or Snippet Display, as applicable, results in economic harm to Google in selling that Book or that type of Book. In the event that Google makes a determination not to sell through Consumer Purchase or Institutional Subscription a Book that the Rightsholder has excluded from Preview Use or

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Snippet Display, then Google will notify the Registry thereof and will state its reasons for that determination and, if the determination was based on the decision of the Rightsholder to exclude the Book from Preview Use or Snippet Display, Google will, with such notice, provide the Registry with data and information demonstrating that Google’s inability to make Preview Use or Snippet Display, as applicable, results in economic harm to Google in selling that Book or that type of Book. All disputes under this provision shall be resolved pursuant to Article IX (Dispute Resolution); provided, however, that until the Arbitrator renders a Decision in favor of Google, Google shall not refrain from selling such Book through Consumer Purchase or Institutional Subscriptions.
17.13 Patent Indemnity. Google, at its own expense, shall defend or, at its option settle, any claim, suit or proceeding brought against the Registry or its directors, officers, employees and agents by a third party arising out of a claim that Google’s Digitization of Books or Inserts, Google’s use of Books or Inserts in Google Products and Services under this Settlement Agreement or any other acts of Google undertaken pursuant to or in furtherance of this Settlement Agreement infringe any such third party’s United States patents, or that the Registry induced any such infringement. Google shall indemnify and hold harmless the Registry and any and all of its directors, officers, employees and agents from any liabilities, damages and costs awarded in any such claim, suit or proceeding or agreed to by Google in settlement thereof, or otherwise incurred by Google or by the Registry at Google’s direction in connection therewith. The foregoing obligations are subject to the Registry providing Google with: (a) prompt written notice of such claim, suit or proceeding, (b) exclusive control over the defense and settlement of such claim, suit or proceeding and (c) proper and full information and assistance, at Google’s expense, to settle or defend any such claim, suit or proceeding. Notwithstanding the foregoing, in no event shall Google have any obligations or liability under this Section 17.13 (Patent Indemnity) to the extent that any such claim, suit or proceeding arises out of any content, information or data provided to Google by the Registry or any Rightsholder. The Registry may, at its own expense, assist in the defense of any claim, suit or proceeding for which Google indemnifies the Registry under this Section 17.13 (Patent Indemnity) if the Registry so chooses.
17.14 No Liability for Consequential Damages. In no event will Google, a Fully Participating Library, a Cooperating Library, Plaintiffs, Class Counsel, or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Settlement Agreement, whether based on breach of contract (including breach of the Security Standard or any Security Implementation Plan), tort (including negligence), or otherwise, and whether or not Google, a Fully Participating Library, a Cooperating Library, Plaintiffs, Class Counsel or the Registry has been advised of the possibility of such damage.

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17.15 Notices.
(a) Legal Notices. All notices and demands concerning (i) any breach or alleged breach of this Settlement Agreement, (ii) any dispute under this Settlement Agreement, (iii) any exercise of audit rights under this Settlement Agreement, (iv) pricing of Institutional Subscriptions, Consumer Purchases, additional Public Access Service and other Revenue Models under this Settlement Agreement, (v) payment of any amounts under any provision of this Settlement Agreement, (vi) any Alternative Accommodated Service Provider, (vii) any Third-Party Required Library Services Provider, and (viii) any matter under Articles XI (Preliminary Settlement Approval), XII (Class Notice Program), XIII (Settlement Administration Program), XIV (Final Fairness Hearing), and XVI (Right to Terminate Agreement) and Section 17.6 (Reimbursement if Terminated) shall be sent (1) before the Effective Date, to counsel for the Author Sub-Class, counsel for the Publisher Sub-Class, and Google’s General Counsel, and (2) after the Effective Date, to the chief executive officer of the Registry and Google’s General Counsel.
(b) Other Notices. All other notices, demands, and requests for which the recipient is not specified in this Settlement Agreement shall be sent (i) before the Effective Date, to counsel for the Author Sub-Class, counsel for the Publisher Sub-Class, and Google’s General Counsel, and (ii) after the Effective Date, to Google’s Vice President, Content Partnerships and, until such time as the Registry designates other counsel, to counsel for the Author Sub-Class and counsel for the Publisher Sub-Class.
(c) Delivery. All notices, demands and requests as specified herein shall be in writing and shall be sent by e-mail (if practicable) and either by overnight courier or by such other delivery methods as provide the sender with proof of the recipient’s receipt and actual notice or, alternatively, with respect to notices under Section 17.15(b) (Other Notices) only, through a mode of electronic communication agreed between Google and the Registry. Notice shall be deemed received upon written verification from overnight courier or such other delivery methods of the recipient’s receipt. Contact information shall be updated in writing as necessary to ensure that each such party has current information regarding all such contacts. In no event shall the time period for taking any action under this Settlement Agreement be extended by reason of Rule 6(d) of the Federal Rules of Civil Procedure.
17.16 Time Periods. All time periods set forth herein shall be computed in calendar days unless otherwise provided. In computing any period of time prescribed or allowed by this Settlement Agreement or by order of the Court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be so included, unless it is a Saturday, Sunday or otherwise not a Business Day, or, when the act to be done is the filing of a paper in Court, a day on which weather or other conditions have made the office of the Clerk of the Court inaccessible, in which event the period shall run until the end of the next day that is not one of the aforementioned days.

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17.17 Public Statements. Any party may make public statements about the Action, the Settlement and this Settlement Agreement, including statements to the press, subject to the limitations regarding confidentiality set forth in Article XV (Confidentiality).
17.18 Tax Consequences. No opinion or advice concerning the tax consequences of this Settlement Agreement to individual members of the Settlement Class is being given or will be given by Class Counsel. No representation or warranty in such regard is made by virtue of this Settlement Agreement. The Notice will direct members of the Settlement Class to consult their own tax advisors regarding the tax consequences of the Settlement and any tax reporting obligations they may have with respect thereto. Each such member’s tax obligations, and the determination thereof, are the sole responsibility of such member, and it is understood that the tax consequences may vary depending on the particular circumstances of each individual member of the Settlement Class.
17.19 Destruction. Within thirty (30) days after the Effective Date, counsel for the Author Sub-Class, counsel for the Publisher Sub-Class and counsel for Google will destroy all copies of, and erase from computer memory, all documents produced to them pursuant to the Action, except for documents that the producing party agrees in writing are necessary for the Registry and/or the claims administration process. Counsel for the Author Sub-Class and counsel for the Publisher Sub-Class will notify Google, and Google will notify counsel for the Author Sub-Class class and Counsel for the Publisher Sub-Class, that such destruction has occurred.
17.20 Attachments. All of the Attachments to this Settlement Agreement are material and integral parts hereof, and are incorporated in this Settlement Agreement by reference herein.
17.21 No Other Representations. Other than as set forth in this Settlement Agreement, the Supplemental Agreement Regarding Right to Terminate, and the separate settlement agreement between the Representative Plaintiffs that represent the Publisher Sub-Class and Google in The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (JES) (which settlement agreement is attached hereto as Attachment M (Settlement Agreement Between Publishers and Google)), no party to this Settlement Agreement has relied on any representation of another party in entering into this Settlement Agreement.
17.22 Governing Law. This Settlement Agreement, including the AuthorPublisher Procedures, shall be governed by and construed in accordance with the laws of the State of New York, without reference to principles of conflicts of laws.
17.23 Court’s Continuing Jurisdiction. The Court shall retain jurisdiction over the interpretation and implementation of this Settlement Agreement. Except as provided in Article IX (Dispute Resolution), any claims, disputes or actions arising under or to

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enforce this Settlement Agreement shall be commenced and maintained only in the Court.
17.24 Extensions of Time. Plaintiffs and Google reserve the right, subject to the Court’s approval, to make any reasonable extensions of time that might be necessary to carry out any of the provisions of this Settlement Agreement, subject to Section 7.2(f)(iv) (No Modification Without Consent).
17.25 Complete Defense. This Settlement Agreement may be pleaded as a full and complete defense to, and may be used as the basis for an injunction against, any action, suit, or other proceeding that may be instituted, prosecuted, maintained, or attempted in breach of this Settlement Agreement.
17.26 Entire Agreement. This Settlement Agreement, including all of the Attachments hereto, together with the Supplemental Agreement Regarding Right to Terminate and the letter agreement referred to in Section 13.2(c)(iii)(1)(A), contain the entire, complete, and integrated statement of each and every term and provision agreed to by and among Plaintiffs and Google; set forth the entire agreement among Plaintiffs and Google with respect to their subject matter; and are not subject to any condition not provided for in this Settlement Agreement and the Supplemental Agreement Regarding Right to Terminate. Plaintiffs and Google shall not, in any proceeding or otherwise, use or refer to any parol evidence with regard to the interpretation or meaning of this Settlement Agreement.
17.27 Amendments. Prior to the Final Approval Date, Plaintiffs and Google may, by written agreement, amend this Settlement Agreement, subject to Court approval. At any time on or after the Final Approval Date but prior to the Effective Date, Plaintiffs and Google may, by written agreement, amend this Settlement Agreement, without notice to or approval of the Court, only if such amendment is not materially inconsistent with the Court’s Final Judgment and Order of Dismissal and does not impair the rights of the Settlement Class under this Settlement Agreement. After the Effective Date, the Registry and Google may, by written agreement, amend this Settlement Agreement, without notice to or approval of the Court, only if such amendment does not impair the rights of the Settlement Class under this Settlement Agreement. This Section 17.27 (Amendments) is subject to any approvals of any Fully Participating Libraries and any Cooperating Libraries required by Section 7.2(f)(iv) (No Modification Without Consent).
17.28 No Party Is the Drafter. Neither Google nor any of the Plaintiffs shall be considered the drafter of this Settlement Agreement or any provisions hereof for the purpose of any statute, case law or rule of interpretation or construction that might cause any provision to be construed against the drafter hereof.
17.29 No Prevailing Party. Neither Google nor any of the Plaintiffs is a “prevailing party” in the Action.

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17.30 Assignment. Google Inc. may assign its rights and delegate its duties under this Settlement Agreement to a division or an Affiliate of Google Inc., provided that such division or Affiliate agrees to be bound by all of the terms hereof and, provided further, Google Inc. may assign this Settlement Agreement without consent to a successor-in-interest in connection with a merger or the sale of all or substantially all of its assets to which this Settlement Agreement relates. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Settlement Agreement shall be binding upon the heirs, successors, and permitted assigns of each of Plaintiffs, of Rightsholders and of Google.
17.31 Counterparts. This Settlement Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a party.
17.32 Interpretation. In this Settlement Agreement, except as otherwise provided,
(a) the headings in this Settlement Agreement are inserted for convenience only and do not form a part of this Settlement Agreement and are not intended to interpret, define or limit the scope, extent or intent of this Settlement Agreement or any provision hereof;
(b) the terms “include,” “including,” “such as,” and “e.g.,” when following any general statement or term, are not to be construed as limiting the general statement or term to the specific items or matters set forth, but rather as permitting the general statement or term to refer to all other items or matters that could reasonably fall therein;
(c) where in this Settlement Agreement, Rightsholders are deemed to have authorized Google or a Fully Participating Library to make a specified use of Books or Inserts in specified ways, such authorization includes:
(i) the right to reproduce, distribute, display, and make technical adaptations to (but not to adapt or alter the content of) such Books or Inserts for the purposes of making, and to the extent reasonably required to make, such authorized use, using any means and any technology, whether now known or hereafter devised; and
(ii) use of a Book without (1) its Inserts or any portions that have been excluded by any Insert Rightsholder or the Book Rightsholder, and pages of the Book on which such Inserts or portions appear, (2) Inserts of a member of the Settlement Class who has opted out of the Settlement and (3) other Expression in that Book that is not an Insert, e.g., because it is an image;

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(d) all accounting terms not otherwise defined herein have the meanings assigned to them by, and all calculations to be made hereunder are to be made in accordance with, United States generally accepted accounting principles, as applied on a consistent basis; and
(e) a reference to a required agreement, approval, authorization or consent means written agreement, approval, authorization or consent, as the case may be.
17.33 Effect of Opt-Out. If all of the members of the Settlement Class who have a Copyright Interest in a particular Book or Insert opt out of the Settlement by the OptOut Deadline, then neither this Settlement Agreement nor any Library-Registry Agreement authorizes or prohibits the use of such Book or Insert, no Claims with respect to such Book or Insert are released by this Settlement Agreement or the Final Judgment and Order of Dismissal or any Library-Registry Agreement, and this Settlement Agreement will, after the Opt-Out Deadline, no longer apply to such Book or Insert.
17.34 Compliance with Law. Notwithstanding any other provision of this Settlement Agreement, nothing in this Settlement Agreement requires Google, a Rightsholder, a Participating Library, the Registry or any Plaintiff to take any action that would violate any applicable law and none of them shall be held to have breached this Settlement Agreement by omitting to take any action that, if taken, would violate any applicable law.
This Settlement Agreement is dated October 28, 2008.

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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 144 of 323
Attachments: A— Procedures Governing Author Sub-Class and Publisher Sub-Class Under the Settlement Agreement B—Form of Library-Registry Agreements
B-1—Form of Library-Registry (Fully Participating) Agreement B-2—Form of Library-Registry (Cooperating) Agreement B-3—Form of Library-Registry (Public Domain) Agreement C—Plan of Allocation D—Security Standard E—Public Domain F—Preview Uses G—Approved Libraries H—[Proposed] Order Granting Preliminary Settlement Approval I—Notice of Class Action Settlement J—Summary Notice of Class Action Settlement K—Paid Media Schedule L—[Proposed] Final Judgment and Order of Dismissal M— Settlement Agreement Between Publishers and Google
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Attachment A to Settlement Agreement
PROCEDURES GOVERNING AUTHOR SUB-CLASS AND PUBLISHER SUB-CLASS UNDER THE SETTLEMENT AGREEMENT
Publishers and Authors recognize that they may have legitimate and overlapping rights to authorize use of and receive compensation for Books. Accordingly, in the course of settling the Action, Publishers and Authors have established procedures for determining their respective rights with respect to Books, the Settlement Fund and revenues earned from Books under the Settlement Agreement.
ARTICLE I. Definitions; Cross-References
1.1 A capitalized term in these Author-Publisher Procedures shall have the same meaning as set forth in the Settlement Agreement, unless otherwise provided.
1.2 Author means a member of the Author Sub-Class.
1.3 Educational Books means Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs.
1.4 Other Google Program means a Google program other than, but similar to, the Revenue Models, including, but not limited to, the Google Partner Program.
1.5 Publisher means a member of the Publisher Sub-Class.
1.6 Unless otherwise stated, all references herein to Articles and Sections refer to Articles and Sections of these Author-Publisher Procedures.
ARTICLE II. Scope of Procedures
2.1 Scope. Except as set forth in Article X, the terms of these AuthorPublisher Procedures apply only to the rights and obligations under this Settlement Agreement with respect to Rightsholders’ Books.
2.2 Effective Date. The Author-Publisher Procedures are effective as of the Effective Date, provided, however, that if the Registry is operational prior to that date, an Author and a Publisher may, by mutual agreement, invoke the procedures set forth in these Author-Publisher Procedures.
ARTICLE III. Classification of Books
3.1 Initial Classification of a Book. Books that are initially classified as Commercially Available under the Settlement Agreement on the Notice Commencement
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Date will be classified under these Procedures as In-Print Books, subject to Sections 3.2 and 3.3. Books that are initially classified under the Settlement Agreement on the Notice Commencement Date as not Commercially Available will be classified under these Procedures as Out-of-Print Books, subject to Sections 3.2 and 3.3.
3.2 Tests for Determining Classification of Books. Either an Author (or the Author directors of the Board of Directors of the Registry) (other than for a work-for-hire Book) or a Publisher (or the Publisher directors of the Board of Directors Registry) (other than for a reverted or Author-Controlled (defined in Article IV) Book) can challenge the classification of its Book or a group of its Books as In-Print or as Out-of-Print based on the following tests.
(a) A Book shall be classified as In-Print if it meets either of the following tests:
(i) Test 1:
The author-publisher contract for the Book does not provide for reversion to the Author of rights in the Book under any circumstances, or the Book is “inprint” under the author-publisher contract. For this purpose, the Book may be “in-print” even if the contract does not use the term “in-print,” provided, however:
(1) If the contract measures “in-print” by reference to revenues and more than fifty percent (50%) of the revenues paid to a Publisher from exploitation of a Book are earned from the Revenue Models, then those revenues shall not be considered in determining whether this Test 1 has been met.
(2) If the contract measures “in-print” by units sold or measures other than revenues, then an equivalent principle will be applied in determining whether this Test 1 has been met. The fact that a Book or information about a Book is included in a database or that information about the Book is provided in search engine results does not, by itself, mean that the Book is “in-print.”
(3) A Book is not “in-print” if the author-publisher contract provides for reversion to the Author of rights in the Book and all of the criteria for reversion have been met (except that the Author need not have sent a request for reversion to the Publisher).
(ii) Test 2:
To the extent consistent with any rights in the Book that it may have under the author-publisher contract, the Publisher publicly has announced to the trade that it has undertaken concrete steps to publish an existing or new edition of the Book, and such edition is published within twelve (12) months of the announcement.
(b) If neither of the Tests in Section 3.2(a)(i) or (ii) is met, then the Book shall be classified as Out-of-Print.
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3.3 Procedures for Changing Classification of a Book.

(a) An In-Print Book shall be reclassified as an Out-of-Print Book if, pursuant to Section 3.2(d)(i) (Basis for Determination) of the Settlement Agreement such Book is determined to be not Commercially Available unless, pursuant to Article III, an Author or Publisher of such Book (or the Author directors or Publisher directors of the Board of Directors of the Registry, respectively) demonstrates to the Registry, and the Registry finds, that such Book meets either Test 1 or Test 2.

(b) An Author or Publisher of a Book, or the Author directors or Publisher directors of the Board of Directors of the Registry, respectively, challenging the classification of such Book as In-Print or Out-of-Print shall file a notice with the Registry with evidence (such as contracts, royalty statements, or trade announcements) sufficient to establish whether that Book meets either Test 1 or Test 2 (such evidence may, if no documentary evidence is reasonably available, include an affidavit).

(c) The Registry shall notify the other party of such challenge and evidence. If the other party, upon receipt of such notice, does not object and provide evidence rebutting the challenge within one hundred twenty (120) days from the time such notice is sent by the Registry, and the Registry finds that the evidence is sufficient to establish whether or not the Book meets either Test 1 or Test 2, then the Registry will deem the challenger’s evidence dispositive and will promptly change the status of the Book from In-Print to Out-of-Print, or vice versa, as appropriate.

(d) If the parties have each timely submitted evidence and have not resolved the matter between them within sixty (60) days from the date such evidence is submitted to the Registry, the Registry will determine whether the evidence submitted establishes that the Book should be classified as In-Print or Out-of-Print under Section 3.2 by reviewing each party’s documentary submissions, as well as any other relevant evidence submitted by the parties, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.

however:

(e) Any such determination by the Registry shall be final, provided,

(i) A determination by the Registry that a Book classified as In-Print should actually be classified as Out-of-Print shall not preclude the Publisher of that Book from subsequently publishing the Book that would result in a further reclassification of the Book as In-Print, provided doing so is consistent with the terms of the author-publisher contract.

(ii) Nothing precludes the Author of a Book from at any time challenging the status of that Book as In-Print on the ground that the Book fails to meet either Test 1 or Test 2.

(f) If (i) a challenge to the classification of a Book or group of Books is brought by the Author directors or the Publisher directors of the Board of Directors of
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the Registry pursuant to Section 3.2, (ii) such challenge is brought before the Board of Directors and (iii) the Board of Directors is unable to make any determination pursuant to Section 3.3(b), then the matter shall be submitted to dispute resolution pursuant to Article IX (Dispute Resolution) of the Settlement Agreement.

ARTICLE IV. Author-Controlled Determination

4.1 Procedures. The following procedure shall apply in determining whether any Book for which the rights have not reverted to the Author (other than a Book that is a work-for-hire or for which the author-publisher contract does not provide for reversion of rights to the Author in any circumstances) shall be classified as Author-Controlled solely for purposes of the Revenue Models and other Registry-brokered licenses:

(a) An Author shall send or shall have previously sent to the Publisher (either before or after the Effective Date) a request for reversion to the Author of rights in such Book, in accordance with the author-publisher contract.

(b) If the Publisher does not respond or did not previously respond in writing to such request within (i) ninety (90) days or (ii) the applicable written response period specified in the author-publisher contract, if any (whichever period is longer) (the “Response Period”), then the Author may send a “Change Status Notice” to the Registry (with a copy to the Publisher). The Change Status Notice must:

(i) affirm that the Author believes that the Book is no longer “in-print,” as defined in Test 1 and that the Response Period has expired, and request that the Book be deemed to be Author-Controlled;

(ii) include a copy of the request for reversion previously sent to the Publisher; and

the Author has it.

(iii) include a copy of the applicable author-publisher contract if

(c) Upon receipt of a Change Status Notice for a Book, the Registry shall escrow all revenues from Revenue Models thereafter owed to an Author and Publisher of the Book.

(d) If, within one hundred twenty (120) days of the date of the Change Status Notice, the Publisher does not respond in writing to the Registry and the Author to dispute the Change Status Notice, the Registry shall deem the Book to be AuthorControlled. Such Author-Controlled Book shall be subject to Section 6.1(b) and escrowed revenues shall be distributed according to Section 6.2(a).

(e) If, within one hundred twenty (120) days of the date of the Change Status Notice, the Publisher disputes the Change Status Notice, the parties shall submit the issues in dispute to the Registry for decision.

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(i) At either party’s request, the Registry shall review both parties’ documentary submissions, as well as any other relevant evidence, to determine whether the Book should be classified as In-Print or as Out-of-Print pursuant to the procedures and tests in Article III.
(ii) The Registry shall review both parties’ documentary submissions, as well as any other relevant evidence, to determine whether rights in the Book are subject to reversion to the Author according to the terms of the author-publisher contract.
(iii) If the Registry determines that the conditions in the authorpublisher contract for reversion to the Author of rights in the Book have been met, the Registry shall deem the Book to be Out-of-Print and Author-Controlled, the Book shall be subject to Section 6.1(b), and all escrowed revenues shall be distributed according to Section 6.2(a).
(iv) If the Registry determines that the conditions in the authorpublisher contract for reversion to the Author of rights in the Book have not been met and that the Book is Out-of-Print, then the Out-of-Print Book shall be subject to Section 6.1(a) or 6.1(c), as applicable, and all escrowed revenues shall be distributed pursuant to Section 6.2(b) or 6.2(c), as applicable.
(v) If the Registry determines an Out-of-Print Book should be reclassified as an In-Print Book, then the In-Print Book shall be subject to Article V.
4.2 Notification of Procedures. If a Publisher claims or registers a Book pursuant to Section 13.1(c)(ii)(2)(B) of the Settlement Agreement and an Author claims or registers the same Book pursuant to Section 13.1(c)(ii)(3)(B) of the Settlement Agreement, the Registry will notify both the Author and Publisher of such claims and of the procedures available under this Article IV.
ARTICLE V. In-Print Books
5.1 Permitted Uses. Both an Author (other than a work-for-hire Author) and the Publisher of an In-Print Book will be considered a Rightsholder for purposes of Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement. Except for Books that are works-for-hire, for an In-Print Book, both the Author and the Publisher of such Book must agree, in accordance with the following procedure, that Google may make one or more Display Uses of the Book:
(a) The Publisher shall initially notify the Registry and the Author of the Book as to any and all Display Uses the Publisher wishes to authorize (e.g., whether or not to allow Preview Use for a Book). The Author shall have the right, within thirty (30) days from the provision of such notice by the Publisher, to notify the Publisher and the Registry that the Author does not authorize some or all of the requested Display Uses. The Display Uses requested by the Publisher shall commence after such thirty (30)-day period absent notice from the Author that it does not authorize one or more of the
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requested Display Uses. If the Author objects to one or more Display Uses, then only the mutually authorized Display Uses shall commence.
(b) After the thirty (30)-day period in Section 5.1(a), each of the Author and the Publisher for an In-Print Book shall continue to be considered a Rightsholder for purposes of Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement (i.e., for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model) and Section 5.2 will apply.
(c) Nothing herein precludes an Author from informing the Publisher and the Registry at any time that the Author wants the Book made available for one or more Display Uses.
5.2 Removal; Exclusion; Changes in Display Uses. Subject to Section 5.3, either the Author or the Publisher may direct the Registry to Remove or exclude, or change Display Uses of, an In-Print Book pursuant to Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement, and, upon such direction, the Registry will notify Google and either the Author or the Publisher of the Book, as appropriate.
5.3 Conflicting Directions. If, at any time, the Author and the Publisher of a Book issue conflicting directions to the Registry for an In-Print Book pursuant to Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement, the more restrictive directions as to Removal, exclusions, changes in Display Uses or levels of access will control (i.e., the Registry shall act in accordance with the request authorizing the fewest or most limited uses of the In-Print Book).
5.4 Control of Pricing. If, either by the procedure set forth in Section 5.1 or pursuant to a Transfer Request under Article X for an In-Print Book in an Other Google Program, the Publisher and Author agree to authorize one or more Display Uses for a Book, then the Publisher has the right to determine the pricing of the Book for Consumer Purchase, provided, however, that an Author will continue to be considered a Rightsholder pursuant to Section 3.5 (Right to Remove or Exclude) of the Settlement Agreement with rights to Remove or exclude the Book if the Author objects to the pricing.
5.5 Distribution of Payments/Revenues. All payments under Section 5.1 (Cash Payments to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement and all revenues from Revenue Models for In-Print Books shall be remitted by the Registry to the Publisher and flow through the royalty statements of the Publisher. The Publisher shall provide to the Author the appropriate splits or royalties as may be specified in the author-publisher contract for the Book or as the parties may otherwise agree. If an Author wishes to dispute the split or royalty rate paid by the Publisher on such revenues, Article VII shall apply, provided, however, that Article VII shall not apply to Educational Books.
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ARTICLE VI. Out-of-Print Books
6.1 Permitted Uses and Pricing. The following terms shall apply with respect to uses of Out-of-Print Books:
(a) For all Out-of-Print Books that are works-for-hire, only the Publisher of such Books shall be considered the Rightsholder for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model. The Publisher will control the pricing for Consumer Purchase of any such Books.
(b) For all Out-of-Print Books for which the rights have reverted to the Author or are determined to be Author-Controlled, only an Author of such Books shall be considered a Rightsholder for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model. The Author will control the pricing for Consumer Purchase of such Books.
(c) For all Out-of-Print Books for which the rights have not reverted to the Author and that are neither works-for-hire nor Author-Controlled, both (i) the Author and (ii) the Publisher shall be considered the Rightsholder for purposes of directing Removal, exclusion, changes in Display Uses and/or levels of access for any Revenue Model, provided, however, that any such direction by the Publisher must be for good reason articulated (e.g., for the Publisher’s legal, technical, editorial, policy, commercial or economic reasons), provided, further that, for purposes of the foregoing proviso, Removing, excluding or restricting Display Uses and/or levels of access for any Revenue Model for the purpose of benefiting any other book with which such Out-of-Print Book might compete is not a “good reason.” If, at any time, an Author and the Publisher of a Book issue conflicting directions to the Registry regarding the uses authorized for such Out-of-Print Book, the more restrictive directions as to levels of access will control (i.e., the Registry shall act in accordance with the request authorizing the fewest or most limited uses of the Out-of-Print Book). Either an Author or the Publisher may set the price for Consumer Purchase of any such Books, provided, however:
(i) upon receipt of a request to change the price for Consumer Purchase of such Book, the Registry shall notify the other party, if such a party has been identified; and
(ii) in the case of a timely objection by the other party, the Registry will maintain the higher of the prices specified until the parties can agree on a new price for Consumer Purchase.
6.2 Distribution of Payments/Revenues. All payments under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement and revenues earned from Revenue Models shall be distributed by the Registry as follows:
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(a) For Out-of-Print Books for which the rights have reverted to the Author or are Author-Controlled, the Registry will remit one hundred percent (100%) of such revenues to the Author.
(b) For Out-of-Print Books that are solely works-for-hire, the Registry will remit one hundred percent (100%) of such revenues to the Publisher.
(c) For Out-of-Print Books other than those described in Sections 6.2(a) and 6.2(b), the Registry will separately remit payment to both the Author and the Publisher as follows:
(i) For such Out-of-Print Books with a Publication Year prior to 1987, the Registry will pay out sixty-five percent (65%) of such revenues to the Author and thirty-five percent (35%) to the Publisher.
(ii) For such Out-of-Print Books with a Publication Year during or after 1987, the Registry will pay out fifty percent (50%) of such revenues to the Author and fifty percent (50%) to the Publisher.
(iii) For purposes of this Section 6.2(c), “Publication Year” means the earliest copyright year that appears in or on the Book, or if no copyright year appears in or on the Book, the year of initial publication set forth in a copyright registration for the Book.
(iv) The Publisher will not owe splits or royalties to the Author on the revenues remitted to the Publisher by the Registry under this Section 6.2.
6.3 Author Claim of Reversion. If an Author in claiming or registering an Out-of-Print Book pursuant to Section 13.1(c)(ii) of the Settlement Agreement indicates that, to the best of the Author’s knowledge, such Book is not a work-for-hire and is reverted, and a Publisher claims or registers the same Book pursuant to Section 13.1(c)(ii)(2)(B) of the Settlement Agreement, then such Book will be presumed reverted for purposes of this Article VI and solely for purposes of the Revenue Models and exercising rights under the Settlement Agreement and other Registry-brokered licenses. The Registry shall notify such Publisher of such indication by the Author. If, within a reasonable time after such notification, the Publisher comes forward with evidence that the Author is not a Rightsholder of the Book and/or the Book is not reverted, the Registry will notify the Author as to such evidence and give the Author an opportunity to submit his or her own evidence. If there is a dispute based on the evidence submitted to the Registry by the Author and the Publisher, the dispute will be resolved pursuant to Article IX (Dispute Resolution) of the Settlement Agreement based on all the evidence presented. In each such dispute, the Arbitrator will determine who shall bear the burden of proof under the circumstances.
6.4 Resolving Conflicting Claims. Except where otherwise specifically provided in these Author-Publisher Procedures, if both an Author and a Publisher claim or register an Out-of-Print Book other than an Educational Book and there is a conflict
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between their Claim Forms with respect to their asserted rights in the Book, the Author and the Publisher shall follow the procedures in this Section 6.4. First, the parties shall attempt to resolve the matter informally. If they are unable to do so, either party may submit the dispute to the Registry for resolution. After a decision by the Registry, either party may thereafter submit the dispute for resolution pursuant to Article IX (Dispute Resolution) of the Settlement Agreement. In reaching a decision, the Registry or the Arbitrator will give primary consideration to the terms of the written contract and amendments thereto, if any, between the parties. If the contract has no conclusive or determinative wording, the Registry or the Arbitrator may consider extrinsic evidence, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.
ARTICLE VII. Disputes
7.1 Scope. This Article VII shall apply to disputes:
(a) Between an Author and a Publisher referenced in Section 5.5, except if the dispute regards an Educational Book, provided, however that if the dispute concerns whether a Book is an Educational Book, then that dispute shall be subject to Article IX (Dispute Resolution) of the Settlement Agreement;
(b) Between and among non-Publisher Rightsholders (e.g., co-authors and heirs and assignees of an Author) with respect to pricing, Removal, inclusion or exclusion of a Book, or authorization of one or more Display Uses of a Book, under the Settlement Agreement.
7.2 Procedures. The following procedures shall apply to disputes described in Section 7.1:
(a) The Rightsholder will notify the Registry of a dispute; the Registry will not pay any Rightsholder for the Book until after a final decision according to the oprocedures in this Article VII.
(b) After notification to the Registry of a dispute, the parties will attempt to resolve the dispute amicably. If no such resolution is reached within ninety (90) days from the date the Registry was notified of such dispute (which period can be extended by agreement of the parties), any party can submit the dispute for resolution under the procedures of Section 9.3 (Arbitration) of the Settlement Agreement, subject to the additional terms of this Article VII, and all parties to the dispute will then be bound to follow such procedures to resolve such dispute.
(c) All decisions of the Arbitrator will be binding. In reaching a decision, the Arbitrator will give primary consideration to the terms of the written contract and amendments thereto, if any, between the parties. If the contract has no conclusive or determinative wording, the Arbitrator may consider extrinsic evidence, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.
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7.3 Fees. The Registry shall set filing fees for disputes taking into account the objectives of facilitating dispute resolution, deterring frivolous filings and defraying the Registry’s expenses, such that the dispute resolution process benefits Rightsholders but does not unduly financially burden the Registry.
(a) In cases of disputes brought pursuant to Section 7.1(a), the party submitting the dispute to the Arbitrator shall pay a filing fee to the Registry of $300 (subject to adjustment by the Registry), and if such party is the prevailing party, half of such filing fee will be refunded at the conclusion of the arbitration.
(b) The Registry will adopt fees and rules for disputes brought pursuant to Section 7.1(b), which may differ from those adopted for disputes brought pursuant to Section 7.1(a).
(c) Except as provided in this Section 7.3, all costs of the dispute resolution process will be borne by the Registry.
ARTICLE VIII. Unclaimed Funds
8.1 Unclaimed Authors’ Funds. If revenues earned by an Out-of-Print Book are owed to the Author pursuant to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the Settlement Agreement but the Author fails to register with the Registry, the revenues to which the Author otherwise is entitled shall be designated Unclaimed Authors’ Funds. All such Unclaimed Authors’ Funds shall be subject to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the Settlement Agreement and, if distributed by the Registry to Rightsholders pursuant to that section, shall be distributed to Registered Rightsholders who are Authors.
8.2 Unclaimed Publishers’ Funds. If revenues earned by an Out-of-Print Book are owed to the Publisher pursuant to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the Settlement Agreement but the Publisher fails to register with the Registry, the revenues to which the Publisher otherwise is entitled shall be designated Unclaimed Publishers’ Funds. All such Unclaimed Publishers’ Funds shall be subject to Section 6.3(a) (Unclaimed Funds and Public Domain Funds) of the Settlement Agreement and, if distributed by the Registry to Rightsholders pursuant to that section, shall be distributed to Registered Rightsholders who are Publishers.
8.3 Allocation of Unclaimed Funds. All revenues earned by Books that neither an Author nor a Publisher claims within five (5) years after the end of the reporting period during which such revenues were earned will be allocated between the Unclaimed Authors’ Fund and the Unclaimed Publishers’ Fund pursuant to Section 6.2(c), based on the Publication Year of such Books.
8.4 Timing of Payments. No payments under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement or revenues from the Revenue Models shall be paid or distributed to Authors or Publishers until the Effective Date or one (1) year after the Final Approval Date,
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whichever is later, so that Authors or Publishers or their representatives may submit challenges, pursuant to Article III, to the initial classifications of Books. With respect to Books for which the initial classifications are challenged in that time period, payments under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement and revenues from the Revenue Models shall not be paid to Authors or Publishers until the challenges are resolved pursuant to Article III.
ARTICLE IX. Releases and Precedential Effect
9.1 Releases. Except as set forth in Sections 9.2 and 10.3, nothing herein shall constitute a release of any claim by an Author against a Publisher or by a Publisher against an Author, and all rights to bring such claims are expressly reserved by Authors and Publishers.
9.2 All Claims Governed. The provisions of these Author-Publisher Procedures shall govern all claims and disputes between Authors and Publishers regarding the inclusion and exploitation of any Book in the Revenue Models, and (except for Educational Books) the royalty splits for revenue derived from the Revenue Models.
9.3 No Precedential Effect. Any decisions of the Registry (or of an Arbitrator pursuant to Article IX (Dispute Resolution) of the Settlement Agreement) with respect to any dispute brought pursuant to these Author-Publisher Procedures will be final. Except as expressly provided in Article X, any such decision, including but not limited to decisions made pursuant to Articles III, IV, VI, VII or X, shall apply solely with respect to and for purposes of the Settlement Agreement, the Revenue Models, and any other Registry-brokered licenses. Neither a Publisher nor an Author, nor either’s agent or associational representative, may rely on or cite the Registry’s determination with respect to an individual Book, or any group or pattern of determinations, as legal or other precedent or authority, “course of dealing,” “industry practice,” or otherwise, as an aid or support in the negotiation, enforcement, interpretation and/or construction of an authorpublisher contract, nor with respect to any other Books or any programs other than the Revenue Models or other Registry-brokered licenses.
ARTICLE X. Other Google Programs
10.1 Application of Decisions. For each In-Print Book published under an author-publisher contract executed prior to 1992 that has not been amended thereafter to expressly grant or retain all electronic rights pertinent to the Revenue Models or any Other Google Program, any decision in a dispute initiated pursuant to Section 5.5 regarding the royalty split for a Display Use of that Book will also apply to all royalty splits for uses of that Book in any Other Google Programs that are the same as or substantially identical to that Display Use.
10.2 Take Down and Transfer Requests. The following procedures will apply to each In-Print Book (except for Educational Books) that is the subject of an authorpublisher contract executed prior to 1992 that has not been amended thereafter to
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expressly grant or retain all electronic rights pertinent to an Other Google Program if such Book is displayed in an Other Google Program:
(a) A Rightsholder who has a good faith belief that Google is exploiting such Book in an Other Google Program without the necessary authorization from such Rightsholder (the “Notifying Rightsholder”), may, by using the form of notice described in Section 10.2(b) (the “Notice”), request, through the Registry, that Google either remove such Book from such Other Google Program (a “Take Down Request”) or transfer such Book from the Other Google Program to one or more Display Uses in one or more of the Revenue Models (a “Transfer Request”).
(b) The form of Notice is Exhibit A hereto, and will be available online (including through the Registry’s website).
(c) The Notifying Rightsholder shall submit the Notice to the Registry. Upon receipt, the Registry shall forward a copy of the Notice to Google, and the person who had given Google permission to use such Book (the “Initial Authorizing Rightsholder”) will be sent a copy of the Notice by Google pursuant to Section 3.5.(c)(ii)(1) of the Settlement Agreement.
(d) The Initial Authorizing Rightsholder shall have thirty (30) days to respond to the Notice, as set forth in Sections 10.2(e) or 10.2(h). If Google, pursuant to Section 3.5(c)(ii)(2) of the Settlement Agreement, transfers such Book into the Revenue Models, such Book shall become subject to these Author-Publisher Procedures, as applicable.
(e) If the Notice is a Take Down Request, the Initial Authorizing Rightsholder may respond, at its election, by:
(i) Not objecting to the Take Down Request; or
(ii) Objecting to the Take Down Request by filing with the Registry a counter notice that states, under penalty of perjury, that the Initial Authorizing Rightsholder has the good faith belief that he, she or it has rights in such Book necessary to authorize Google to exploit such Book as it is being exploited in such Other Google Program (the “Counter-Notice”). The Counter Notice shall include documentation supporting such belief.
(f) The form of Counter-Notice is Exhibit B, and will be available online (including through the Registry’s website).
(g) The Registry shall forward the Counter-Notice to Google and the Notifying Rightsholder. If the Counter-Notice requirements are complied with, then:
(i) If, pursuant to Section 3.5(c)(ii)(3) of the Settlement Agreement, Google does not maintain or restore access to such Book in the Other Google Program, then the Initial Authorizing Rightsholder may file a lawsuit against the
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Notifying Rightsholder (or follow the dispute resolution procedures in the authorpublisher contract) to determine who has the right to authorize Google to exploit such Book in the Other Google Program; or

(ii) If Google does maintain or restore access, then the Notifying Rightsholder may file a lawsuit against the Initial Authorizing Rightsholder (or follow the dispute resolution procedures in the author-publisher contract) to determine who has the right to authorize Google to exploit such Book in the Other Google Program.

(h) If the Notice is a Transfer Request, the Initial Authorizing Rightsholder may respond, at its election, by:

Models; or

(i) Not objecting to such Book being moved into the Revenue

(ii) Objecting to the Transfer Request by filing a notice of objection with the Registry.

(i) If the Initial Authorizing Rightsholder objects to the Transfer Request pursuant to Section 10.2(h)(ii), then:

(i) The provisions of Section 3.5(c)(ii)(4) and (5) of the Settlement Agreement will apply; and

(ii) Either the Notifying Rightsholder or the Initial Authorizing Rightsholder may file a lawsuit against the other (or otherwise follow the dispute resolution procedures in the author-publisher contract) to assert that it has the rights to exploit such Book in either the Revenue Models or Other Google Programs, and nothing in these Author-Publisher Procedures or the Settlement Agreement may be read to release or waive any such claims.

(j) To the extent that any provision of this Article X conflicts with any other provision of these Author-Publisher Procedures, the provision of this Article X shall control.

10.3 Retention of Rights. All Rightsholders will retain any and all rights that they have under 17 U.S.C. § 512 with respect to all Books in Other Google Programs, except that Rightsholders will instead follow the procedures in this Article X for all Books covered by this Article X.

ARTICLE XI. Miscellaneous

11.1 Delegation. The Registry may delegate one or more of the functions specified in Articles III, IV or VI to an Arbitrator designated pursuant to Article IX (Dispute Resolution) of the Settlement Agreement.

11.2 Notice. All notices, demands and requests as specified herein shall be given to the parties specified herein and not pursuant to Sections 17.15(a) (Legal Notices)
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and 17.15(b) (Other Notices) of the Settlement Agreement, and shall be in writing. Such notices, demands and requests shall be sent by e-mail (if practicable), postal mail, or other delivery methods. Notice shall be deemed received upon proof of receipt.
11.3 Assistance. Publishers and Authors shall use commercially reasonable efforts to provide author-publisher contracts to assist the Registry (or Arbitrator) in classifying Books as In-Print or Out-of-Print and in resolving disputes brought pursuant to these Author-Publisher Procedures, subject to an appropriate confidentiality agreement that will be executed by each party.
11.4 Amendments. The Registry may amend the terms of these AuthorPublisher Procedures pursuant to Section 17.27 (Amendments) or otherwise; provided, however, that no amendment may impair the rights of the Settlement Class, or, without Google’s consent, Google’s rights, under the Settlement Agreement. The Registry shall not make any such amendment except with a vote of the Board of the Directors of the Registry, in accordance with is By-Laws.
11.5 No Liability For Settlement or Registry Administration. No Rightsholder will have any claim against any Plaintiff, Class Counsel, Google or the Registry for (i) any decision with respect to payment of any Cash Payment under Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement or (ii) actions taken in good faith for payments or other disbursements from the Settlement Fund. Except as expressly set forth herein, these Author-Publisher Procedures are not intended to, nor shall they in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against any Plaintiff, Class Counsel, Google or the Registry.
11.6 Plan of Allocation. All distributions under these Author-Publisher Procedures will be made in accordance with the Plan of Allocation.
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ATTACHMENT A (EXHIBIT A)

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 1E61XHofI3B2IT3 A: TAKE-DOWN/TRANSFER REQUEST
NOTICE OF TAKE DOWN/TRANSFER REQUEST The undersigned holds a Copyright Interest in the following Book:
Title: Author: Publication Date: Publisher: ISBN: Other Identifying Information: The undersigned has a good faith belief that such Book is included in a Google program without the necessary authorization from the undersigned. The undersigned hereby requests that (check one): [ ] Google cease using the Book (“Take Down Request”). [ ] Google transfer the Book to the Google Library Project, subject to the terms and conditions of the Settlement Agreement (“Transfer Request”).
________________________________ Name: Title: Date:

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 162 of 323
ATTACHMENT A (EXHIBIT B)

Case 1:05-cv-08136-DC Document 56 FiEleXdH1I0B/I2T8/B08: CPOaUgNeT1E63R-oNf O32T3ICE
COUNTER-NOTICE The undersigned has a good faith belief that he, she or it has the rights in the Book that is the subject of the Notice attached hereto that are necessary to authorize Google to use such Book in the Google Partner Program or [other Google program]. Documentation supporting such good faith belief is attached hereto. Signed under penalty of perjury.
________________________________ Name: Title: Date:

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 164 of 323 ATTACHMENT B1

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 165 of 323
Attachment B-1 to Settlement Agreement
FORM OF LIBRARY-REGISTRY (FULLY PARTICIPATING) AGREEMENT
This LIBRARY-REGISTRY (FULLY PARTICIPATING) AGREEMENT (with all of the exhibits hereto, the “Library Agreement”) is entered into by and between ______________, a ___________ with its principal offices at _____________________ (the “Registry”), on behalf of itself and all Rightsholders, and _____________________, with its principal offices at ____________________________________ (“Library”), is entered into as of _________________ and is effective on the later of such date or the Effective Date of the Settlement Agreement (the “Library Agreement Effective Date”). The Registry and Library are sometimes referred to hereinafter individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to a Settlement Agreement between Google and Plaintiffs dated as of October 28, 2008, the Registry has been established as a clearinghouse for the administration of the rights of Rightsholders under the Settlement Agreement; and
WHEREAS, all of the Rightsholders, through the Settlement embodied in the Settlement Agreement, are deemed to have authorized the Registry to enter into this Library Agreement on their behalf; and
WHEREAS, Library desires to becom e a Fully Participating Library under the Settlem ent Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Library Agreement, Registry and Library hereby agree as follows:
1. Definitions. Capitalized terms have the meanings ascribed to them in Exhibit A (Settlement Agreement Definitions).
2. Settlement Agreement Terms.
(a) Authorizations of Library. As of the Effective Date, the Registry authorizes Library to (i) use its Library Digital Copy in accordance with the terms and conditions of this Library Agreement and (ii) engage in the activities, and only the activities, set forth in this Library Agreement, and only in accordance with such terms and conditions as are applicable to those activities; provided that the remedy for any breach of a term or condition of this Library Agreement shall not be termination of such authorizations except as provided in Section 8.3(g) (Remedies) of Exhibit E (Security and Breach). This Library Agreement does not authorize Library to make any
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Attachment B-1 to Settlement Agreement
uses of Books and Inserts other than those uses that are authorized under this Library Agreement. This Library Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (1) the use of any work or material that is in the public domain under the Copyright Act in the United States, (2) the use of books in hard copy (including microform) format other than the creation and use of Digital Copies of Books and Inserts, or (3) Library’s Digitization of Books if the resulting Digitized Books are neither provided to Google pursuant to the Settlement Agreement nor included in the Library Digital Copy provided to Library by Google, or the use of any such Digitized Books that are neither provided to Google pursuant to the Settlement Agreement nor included in such LDC.
(b) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States, (i) Library may provide Books and Inserts to Google in hard copy (including microform) format to be Digitized (or in a form Digitized by or for Library), and (ii) Library may use such Books and Inserts as provided in this Library Agreement. The authorizations to use Books and Inserts provided for by this Library Agreement are not transfers of copyright ownership to such Books or Inserts, and nothing in this Library Agreement shall operate to transfer any copyright ownership in Books or Inserts.
(c) Library Digital Copy. The obligations and restrictions set forth in this Library Agreement regarding Digital Copies of Books apply only to the Library Digital Copy provided to Library by Google. If, pursuant to Section 3.5(a) (Right to Remove) of the Settlement Agreement, a Rightsholder exercises its right to have its Book Removed, then Library agrees to also Remove such Book from its Library Digital Copy; provided that, pursuant to such section, the right to Remove is limited to requests made within twenty-seven (27) months from the Notice Commencement Date. Library may maintain Books on back-up tapes or on any other back-up storage media in accordance with Section 2(g) (Security of Library Digital Copy) below. If any back-up tape or other back-up storage media containing any Book that has been Removed is restored by Library, then such Book shall also be Removed from the copy made from the back-up tape or other back-up storage media. Library will implement a Rightsholder’s Removal direction within ninety (90) days after notice from the Registry.
(d) Use of Library Digital Copy. The Registry, on behalf of the Rightsholders, and Library agree to the terms and conditions set forth in Exhibit B (Fully Participating Library Uses).
(e) Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights. In each case in which the Fully Participating Libraries and the Cooperating Libraries have the right as a group to exercise or waive a right or grant or withhold consent under certain sections of the Settlement Agreement, as set forth in Exhibit C (Exercise of Collective Rights), Library agrees to the terms of such Exhibit C (Exercise of Collective Rights) and to the terms of Attachment 1 (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) thereto.
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Attachment B-1 to Settlement Agreement
(f) Meetings to Discuss Library Uses. The Registry, Google, Library and other Fully Participating Libraries will meet from time to time as mutually agreed to discuss operational matters regarding the Library-Registry (Fully Participating) Agreements and the provisions of the Settlement Agreement that are applicable to Fully Participating Libraries, as set forth in Exhibit D (Meetings to Discuss Library Uses).
(g) Security of Library Digital Copy. Library and the Registry agree to the terms and conditions set forth in Exhibit E (Security and Breach). Library shall implement an initial Security Implementation Plan prior to using the LDC after the Effective Date. For all breaches of its Security Implementation Plan that are subject to Section 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access) of Exhibit E (Security and Breach), Library and the Registry agree either [ ] that the monetary remedies specified in Sections 8.4(b) (Single or Non-Willful/Intentional Breach of Security Implementation Plan) or 8.4(c) (Repeated or Willful/Intentional Breaches of Security Implementation Plan), as applicable, of such Exhibit apply to Library or [ ] Library will be subject to a judicial action or an arbitration under Section 8 (Dispute Resolution) of this Library Agreement (at the Registry’s election) allowing the Registry to seek all available remedies in equity and at law. [Library to check one of the two alternatives in the preceding sentence.]
(h) Hosting by Fully Participating Libraries. The Hosting Addendum attached hereto indicates whether Library will host an LDC for another Fully Participating Library, or whether another Fully Participating Library will host Library’s LDC for Library, and the applicable terms therefor. Library promptly will provide a revised Hosting Addendum to Registry in the event that, if Library is a Hosting Fully Participating Library, Library terminates its hosting arrangement with a Requesting Fully Participating Library or, if Library is a Requesting Fully Participating Library, Library terminates its hosting arrangement with one Hosting Fully Participating Library or enters into another hosting arrangement with a different Hosting Fully Participating Library for hosting of Library’s LDC.
3. Digital Copy of Excluded Books. In the event that Google excludes a Book from one or more Display Uses for editorial reasons, and provides to the Registry a Digital Copy of such Book pursuant to Section 3.7(e)(i) (Digital Copy of Excluded Books) of the Settlement Agreement, then the Registry may, subject to Section 3.5 (Right to Remove and Exclude) of the Settlement Agreement, engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating Library Collections) of the Settlement Agreement from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available
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Attachment B-1 to Settlement Agreement
the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement) of the Settlement Agreement) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees) of the Settlement Agreement.
4. Term And Termination.
(a) Effective Date. This Library Agreement, if not terminated pursuant to any provision hereof, shall become effective on the Library Agreement Effective Date.
(b) Term. This Library Agreement shall continue in full force and effect until the last to expire of the U.S. copyright in each Book and Insert, unless otherwise terminated at an earlier date pursuant to Section 4(c) (Termination if Settlement Agreement Not Final) or Section 4(d) (Termination by Library).
(c) Termination if Settlement Agreement Not Final. In the event that the Registry and Library agree that the Effective Date will never occur, this Library Agreement shall be null and void.
(d) Termination by Library. Library may terminate this Library Agreement at any time for any reason or for no reason, upon thirty (30) days’ notice to the Registry. In the event of such termination, Library shall delete or permanently render unusable its LDC, and shall certify to the Registry in writing that it has done so. This obligation shall survive termination pursuant to this Section 4(d) (Termination by Library).
5. Representations, Disclaimer And Limitation Of Liability.
(a) Mutual Warranties. Each Party represents and warrants to the other that (i) it has full power and authority to enter into this Library Agreement and to perform its obligations hereunder; and (ii) this Library Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms.
(b) Disclaimer. The warranties explicitly set forth above are the only warranties provided herein and are in lieu of all other warranties by the Parties, express or implied, with respect to the subject matter of this Library Agreement.
(c) Limitation of Liability. In no event will Library or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any
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Attachment B-1 to Settlement Agreement
character from any claims arising out of this Library Agreement, whether based on breach of contract (including, without limitation, breach of the Security Standard referred to in Exhibit E (Security and Breach)), tort (including negligence), or otherwise, and whether or not such Party has been advised of the possibility of such damage.
6. Releases.
(a) Use of Digital Copies by Library. Pursuant to Section 10.2(a) (Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees) of the Settlement Agreement, as of the Effective Date, Library is released by Rightsholder Releasors from the Fully Participating Library Released Claims. Such section is set forth in Exhibit F (Fully Participating Library Releases).
(b) Library Releases of Rightsholders. Without further action by anyone, as of the Effective Date, Library, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation or execution of this Library Agreement.
7. Third-Party Beneficiary.
(a) Library. The Registry, on behalf of Rightsholders, acknowledges and agrees that Library is a third-party beneficiary of certain provisions of the Settlement Agreement, as set forth in and according to the terms of Exhibit G (Third-Party Beneficiary).
(b) Rightsholders. Library acknowledges and agrees that each Rightsholder is a third-party beneficiary of this Library Agreement, entitled to enforce it in accordance with Section 8.3 (Breaches – General Principles) of the Settlement Agreement and Section 8.3 (Breaches – General Principles) of Exhibit E (Security and Breach) as if such Rightsholder were a party hereto.
8. Dispute Resolution. Library hereby agrees that all disputes arising under this Library Agreement shall be subject to Exhibit H (Dispute Resolution). Except as provided in Exhibit H (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Library Agreement shall be commenced and maintained only in the U.S. District Court for the Southern District of New York, and all actions regarding the interpretation, implementation and enforcement of this Library Agreement shall be brought exclusively in such Court, with the Registry and Library submitting to the personal jurisdiction thereof, unless venue in the state in which Library is located is required by the law of such state.
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Attachment B-1 to Settlement Agreement
9. Miscellaneous Provisions.
(a) Notices. Unless provided for to the contrary in this Library Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Library Agreement shall be in writing and sent to the Parties at their addresses identified above (or as otherwise provided by notice given pursuant to this Section 9(a) (Notices)). Notice shall be deemed received (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via facsimile or electronic mail, provided that such notice is also sent simultaneously via first class mail. Contact information shall be updated in writing as necessary to ensure that each Party has current information regarding all such contacts.
(b) Governing Law. This Library Agreement shall be governed by and construed in accordance with the law of the State of _______________, without reference to principles of conflicts of laws. [Governing law to be specified in each Library-Registry Agreement. Governing law will be New York or the state in which Library is located if required by the law of such state.]
(c) Entire Agreement. This Library Agreement, including exhibits, sets forth the entire agreement between the Registry and Library with respect to its subject matter.
(d) Amendment. This Library Agreement may be amended by a written agreement signed by both Parties, only if such amendment does not impair the rights of Rightsholders under this Library Agreement.
(e) Assignment. Except with respect to the use of contractors pursuant to Section 9(h) (Use of Contractors), neither Party may assign any of its rights or delegate any of its duties under this Library Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Library Agreement shall be binding upon the successors and permitted assigns of both Parties.
(f) Severability. If any provision of this Library Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Library Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties.
(g) No Waiver. The failure of either Party to act in the event of a breach of this Library Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 171 of 323

Attachment B-1 to Settlement Agreement
(h) Use of Contractors. Library may use third parties to exercise its rights or to perform any of its obligations under this Library Agreement, including the hosting and storage of Library’s LDC. If and to the extent that Library uses third parties to exercise its rights or to perform any of its obligations as set forth in this Library Agreement, Library shall, at all times, be and remain responsible for ensuring that such third parties act in accordance with this Library Agreement. Library shall be liable for any such third party’s nonconformance with or breach of this Library Agreement, and such breaches shall be regarded as breaches by Library for purposes of Exhibit E (Security and Breach), except as otherwise set forth in the Hosting Addendum.
(i) Interpretation. The interpretive provisions of Section 17.32 (Interpretation) of the Settlement Agreement apply to this Library Agreement.
(j) Compliance with Law. Notwithstanding any other provision of this Library Agreement, nothing in this Library Agreement requires Library or the Registry to take any action that would violate any applicable law and neither of them shall be held to have breached this Library Agreement by omitting to take any action that, if taken, would violate any applicable law.
(k) Counterparts. This Library Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a Party.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned duly authorized representative of each Party.

Registry: By: Print Name: Title: Date:

Library: By: Print Name: Title: Date:

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Attachment B-1-Form of Library-Registry (Fully Participating) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 172 of 323
Attachment B-1 to Settlement Agreement Exhibits [The Exhibits of each Library-Registry (Fully Participating) Agreement will attach, or incorporate by reference, the following sections from the Settlement Agreement.] Exhibit A: Settlement Agreement Definitions [Relevant definitions from the Settlement Agreement] Exhibit B: Fully Participating Library Uses [Section 7.2 (Fully Participating Library Uses)] Exhibit C: Exercise of Collective Rights [Section 7.4 (Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights) and Attachment 1 hereto] Exhibit D: Meetings to Discuss Library Uses [Section 7.5 (Meetings to Discuss Library Uses)] Exhibit E: Security and Breach [Article VIII (Security and Breach)] Exhibit F: Fully Participating Library Releases [Fully Participating Library releases from Section 10.2 (Releases) and the related definitions from 10.1 (Definitions)] Exhibit G: Third-Party Beneficiary [Section 7.2(f)(i) and the sections to which it refers] Exhibit H: Dispute Resolution [Article IX (Dispute Resolution)] Hosting Addendum
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 173 of 323
Attachment B-1 to Settlement Agreement
Hosting Addendum Check here if Library is a Hosting Fully Participating Library: __
List Requesting Fully Participating Library(ies) for which Library will host: _________________________________________________________________ Check here if Library is a Requesting Fully Participating Library: __
List Hosting Fully Participating Library that will host for Library: _________________________________________________________________
If Library is a Hosting Fully Participating Library, Library shall protect the security of all of the LDCs of all of the Requesting Fully Participating Library(ies) from Prohibited Access and ThirdParty Unauthorized Access in the same way that it is obligated to protect the security of its own LDC as described in Exhibit E (Security and Breach). If Library is a Hosting Fully Participating Library, then Library, and not any of the Requesting Fully Participating Library(ies), shall be liable for Library’s compliance with Exhibit E (Security and Breach) with respect to any of the LDCs of Requesting Fully Participating Library(ies) hosted by Library; provided that any Requesting Fully Participating Library is responsible for any act of such Requesting Fully Participating Library that results in any Prohibited Access or any Third-Party Unauthorized Access to its LDC. If Library is a Requesting Fully Participating Library, then Library shall not be liable for its Hosting Fully Participating Library's compliance with Exhibit E (Security and Breach) with respect to Library's LDC, provided that Library is responsible for any act of Library that results in any Prohibited Access or any Third-Party Unauthorized Access to its LDC. If Library is a Hosting Fully Participating Library, it may not make any use of the LDCs of any of the Requesting Fully Participating Library(ies) except to the extent required to host such LDCs and to enable the Requesting Fully
9
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 174 of 323
Attachment B-1 to Settlement Agreement Participating Library(ies) to use its or their LDCs pursuant to its or their respective LibraryRegistry (Fully Participating) Agreement(s). Library: By: Print Name: Title: Date:
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 175 of 323
Attachment B-1 to Settlement Agreement
Attachment 1 Selection of the Designated Representative and Security Representatives, and Establishment of
Governance Rules
1. Designated Representative.
a. Selection. The initial Designated Representative shall be selected by a majority of the votes (expressed in writing or at a meeting (which may include one or more (including all) libraries participating by telephone conference)) of the Fully Participating Libraries and the Cooperating Libraries (voting together as a single class), with each of them having one vote per Book Digitized from such Fully Participating Library’s or Cooperating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). If no candidate succeeds in garnering such majority, then, at the request of any group of Fully Participating Libraries and Cooperating Libraries constituting not less than 10% of the votes as aforesaid, a meeting will be held upon not less than fourteen (14) days’ written notice from such group in order to select the initial Designated Representative. At any such meeting, libraries will be entitled to participate by telephone conference. At any such meeting, the initial Designated Representative shall be selected by a plurality of votes as aforesaid. Following the selection of the initial Designated Representative, the Designated Representative may be removed at any time by a majority vote as aforesaid. The election of any successor Designated Representative will be carried out pursuant to such governance rules as may be established pursuant to Section 1(b) (Governance Rules) below; provided, however, in the absence of creation of relevant governance rules, then the process for determining a successor Designated Representative will be the same process as employed pursuant to this Section 1(a) (Selection) for selection of the initial Designated Representative.
b. Governance Rules. The rules for how the Fully Participating Libraries and the Cooperating Libraries will share the expenses of the Designated Representative, designate a successor Designated Representative, and make decisions regarding the instructions, decisions, and positions to be communicated by the Designated Representative to Google and/or the Registry, as applicable, initially shall be determined by a majority of the votes of the Fully Participating Libraries and the Cooperating Libraries (voting as a single class), with each such library having one vote per Book Digitized from such Fully Participating Library’s or Cooperating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). For each of the instructions, decisions and positions to be communicated by the Designated Representative pursuant to Section 7.4(a) (Designated Representative and Security Representatives) of the Settlement Agreement, such governance rules will include the voting rule by which the Fully Participating Libraries and
11
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 176 of 323
Attachment B-1 to Settlement Agreement
Cooperating Libraries will determine such instructions, decisions and positions (i.e., whether a majority, super-majority, unanimous or other vote is required for each particular instruction, decision and position); provided, however, that (i) such governance rules shall require the affirmative vote of a Fully Participating Library or a Cooperating Library on any matter that would require that Fully Participating Library or Cooperating Library to take any action (as opposed to consenting as a group to a matter not requiring action by that Fully Participating Library or Cooperating Library) other than to pay its share of the routine expenses of the Designated Representative as determined by the governance rules, (ii) such governance rules shall require the consent of all of the Fully Participating Libraries and all of the Cooperating Libraries with respect to an instruction, decision or position regarding any modification or amendment of the Settlement Agreement specified by Section 7.2(f)(iv) (No Modification Without Consent), (iii) for any governance rule that requires a supermajority or unanimous vote, changing such governance rule will also require the same supermajority or unanimous vote, as the case may be, and (iv) in no event shall any of the Cooperating Libraries have any right to consent or vote with respect to any instruction to the Designated Representative regarding any matters under Article VIII (Security and Breach).
2. Security Representatives.
a. Selection. Each of the initial four (4) representatives of the Fully Participating Libraries described in Section 8.2(b) (Changes to Security Standard) of the Settlement Agreement (each a “Security Representative”) shall be selected by a majority of the votes (expressed in writing or at a meeting (which may include one or more (including all) libraries participating by telephone conference) of the Fully Participating Libraries, with each of them having one vote per Book Digitized from such Fully Participating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). If four (4) candidates do not succeed in garnering such a majority approval, then, at the request of any group of Fully Participating Libraries constituting not less than 10% of the votes as aforesaid, a meeting will be held upon not less than fourteen (14) days written notice from such group in order to select such of the initial four (4) Security Representatives that were not previously approved by majority vote. At any such meeting, libraries will be entitled to participate by telephone. At any such meeting, such initial Security Representatives shall be selected by a plurality of votes as aforesaid. Following the selection of the initial Security Representatives, any Security Representative may be removed at any time by a majority vote as aforesaid. The election of any successor Security Representative will be carried out pursuant to such governance rules as may be established pursuant to Section 2(b) (Governance Rules) below; provided, however, in the absence of creation of relevant governance rules, then the process for determining a successor Security Representative will be the same process as employed pursuant to this Section 2(a) (Selection) for selection of the initial Security Representatives.
b. Governance Rules. The rules for how the Fully Participating Libraries will share the expenses of the Security Representatives, designate successor Security Representatives,
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 177 of 323
Attachment B-1 to Settlement Agreement
and make decisions regarding the instructions, decisions, and positions to be communicated by the Security Representatives to Google and/or the Registry (including as to their freedom to operate independently of such instructions), initially shall be determined by a majority of the votes of the Fully Participating Libraries, with each such library having one vote per Book Digitized from such Fully Participating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). For each of the instructions, decisions and positions to be communicated by the Security Representatives pursuant to Article VIII (Security and Breach) of the Settlement Agreement, such governance rules will include the voting rule by which the Fully Participating Libraries will determine such instructions, decisions and positions (i.e., whether a majority, super-majority, unanimous or other vote is required for each particular instruction, decision and position), including as to their freedom to operate independently of such instructions; provided, however, that (i) such governance rules shall require the affirmative vote of a Fully Participating Library on any matter that would require that Fully Participating Library to take any action (as opposed to consenting as a group to a matter not requiring action by that Fully Participating Library) other than to pay its share of the routine expenses of the Security Representatives as determined by the governance rules, (ii) for any governance rule that requires a super-majority or unanimous vote, changing such governance rule will also require the same super-majority or unanimous vote, as the case may be, and (iii) in no event shall any of the Cooperating Libraries have any right to consent or vote with respect to any instruction to the Security Representatives regarding any matters under Article VIII (Security and Breach).
c. Limitation on Authority. Prior to communicating any instruction, decision or position to Google or the Registry, the Security Representatives must (i) notify each Fully Participating Library of each such instruction, decision or position, (ii) confirm (which confirmation will be deemed to have been given if a Fully Participating Library fails to respond to expressly deny such confirmation within thirty (30) days after such notification) with each Fully Participating Library that such instruction, decision or position will not require such Fully Participating Library to take any action that would constitute a violation of any policy of such Fully Participating Library adopted in good faith prior to such Fully Participating Library’s notice of such instruction, decision, or position.
3. Designated Representative and Security Representative Representations.
In communicating any instruction, decision or position to Google or the Registry, the Designated Representative and the Security Representatives, as applicable, shall confirm to Google or the Registry that the Fully Participating Libraries and the Cooperating Libraries have authorized the Designated Representative and the Security Representatives to do so, in accordance with the procedures set forth on this Attachment 1.
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Attachment B-1-Form of Library-Registry (Fully Participating) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 178 of 323 ATTACHMENT B2

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 179 of 323
Attachment B-2 to Settlement Agreement
FORM OF LIBRARY-REGISTRY (COOPERATING) AGREEMENT
This LIBRARY-REGISTRY (COOPERATING) AGREEMENT (with all of the exhibits hereto, the “Library Agreement”) is entered into by and between ______________, a ___________ with its principal offices at _____________________ (the “Registry”), on behalf of itself and all Rightsholders, and _____________________, with its principal offices at ____________________________________ (“Library”), is entered into as of _________________ and is effective on the later of such date or the Effective Date of the Settlement Agreement (the “Library Agreement Effective Date”). The Registry and Library are sometimes referred to hereinafter individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to a Settlement Agreement between Google and Plaintiffs dated as of October 28, 2008, the Registry has been established as a clearinghouse for the administration of the rights of Rightsholders under the Settlement Agreement; and
WHEREAS, all of the Rightshol ders, through the Settlem ent embodied in the Settlem ent Agreement, are deemed to have authorized the Registry to enter into this Library Agreement on their behalf; and
WHEREAS, Library desires to becom e a Cooperating Library under the Settlem ent Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Library Agreement, Registry and Library hereby agree as follows:
1. Definitions. Capitalized terms have the meanings ascribed to them Exhibit A (Settlement Agreement Definitions).
2. Settlement Agreement Terms.
(a) Authorizations of Library. As of the Effective Date, the Registry authorizes Library to engage in the activities, and only the activities, set forth in this Library Agreement, and only in accordance with such terms and conditions as are applicable to those activities.
(b) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States, Library may provide Books and Inserts to Google in hard copy (including microform) format to be Digitized (or in a form Digitized by or for Library).
Attachment B-2- Form Of Library-Registry (Cooperating) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 180 of 323
Attachment B-2 to Settlement Agreement
(c) No Digital Copies Returned. Library has a Digitization Agreement with Google and provides Books subject to the Settlement Agreement to Google for Digitization but agrees that Google will not provide to Library any Digital Copies of Books subject to the Settlement Agreement, unless authorized by the Rightsholder.
(d) Obligation to Delete. As of the Library Agreement Effective Date, Library hereby certifies that it has deleted or permanently rendered unusable any Digital Copies of Books provided by Google to Library prior to the Library Agreement Effective Date. If, after the Library Agreement Effective Date, Library discovers any such Digital Copies of Books or Google provides any Digital Copies of Books to Library, Library will delete or permanently render such Digital Copies unusable promptly upon discovery or receipt.
(e) Use of Research Corpus. The Registry, on behalf of itself and all Rightsholders, and Library agree to the terms and conditions set forth in Exhibit B (Research Corpus).
(f) Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights. In each case in which the Fully Participating Libraries and the Cooperating Libraries have the right as a group to exercise or waive a right or grant or withhold consent under certain sections of the Settlement Agreement, as set forth in Exhibit C (Exercise of Collective Rights), Library agrees to the terms of such Exhibit C (Exercise of Collective Rights) and to the terms of Attachment 1 (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) thereto.
3. Digital Copy of Excluded Books. In the event that Google excludes a Book from one or more Display Uses for editorial reasons, and provides to the Registry a Digital Copy of such Book pursuant to Section 3.7(e)(i) (Digital Copy of Excluded Books) of the Settlement Agreement, then the Registry may, subject to Section 3.5 (Right to Remove and Exclude) of the Settlement Agreement, engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating Library Collections) of the Settlement Agreement from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement) of the Settlement Agreement) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 181 of 323
successor of Google for purposes of Section 10.1(g) (Google Releasees) of the Settlement Agreement.
4. Term And Termination.
(a) Effective Date. This Library Agreement, if not terminated pursuant to any provision hereof, shall become effective on the Library Agreement Effective Date.
(b) Term. This Library Agreement shall continue in full force and effect until the last to expire of the U.S. copyright in each Book and Insert, unless otherwise terminated at an earlier date pursuant to Section 4(c) (Termination if Settlement Agreement Not Final) or Section 4(d) (Termination by Library).
(c) Termination if Settlement Agreement Not Final. In the event that the Registry and Library agree that the Effective Date will never occur, this Library Agreement shall be null and void.
(d) Termination by Library. Library may terminate this Library Agreement at any time for any reason or for no reason, upon thirty (30) days’ notice to the Registry.
5. Representations, Disclaimer And Limitation Of Liability.
(a) Mutual Warranties. Each Party represents and warrants to the other that (i) it has full power and authority to enter into this Library Agreement and to perform its obligations hereunder; and (ii) this Library Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms.
(b) Disclaimer. The warranties explicitly set forth above are the only warranties provided herein and are in lieu of all other warranties by the Parties, express or implied, with respect to the subject matter of this Library Agreement.
(c) Limitation of Liability. In no event will Library or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Library Agreement, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not such Party has been advised of the possibility of such damage.
6. Releases.
(a) Use of Digital Copies by Library. Pursuant to Section 10.2(a) (Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees) of the Settlement Agreement, as of the Effective Date, Library is released by Rightsholder Releasors from the Cooperating Library Released Claims. Such section is set forth in Exhibit D (Cooperating Library Releases).
(b) Library Releases of Rightsholders. Without further action by anyone, as of the Effective Date, Library, for good and sufficient consideration, the receipt and adequacy of which
3
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 182 of 323
are hereby acknowledged, shall be deemed to have fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation or execution of this Library Agreement.
7. Third-Party Beneficiary.
(a) Library. The Registry, on behalf of Rightsholders, acknowledges and agrees that Library is a third-party beneficiary of certain provisions of the Settlement Agreement, as set forth in and according to the terms of Exhibit E (Third-Party Beneficiary).
(b) Rightsholders. Library acknowledges and agrees that each Rightsholder is a third-party beneficiary of this Library Agreement, entitled to enforce it in accordance with Section 8.3 (Breaches – General Principles) of the Settlement Agreement as if such Rightsholder were a party hereto.
8. Dispute Resolution. Library hereby agrees that all disputes arising under this Library Agreement shall be subject to Exhibit F (Dispute Resolution). Except as provided in Exhibit F (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Library Agreement shall be commenced and maintained only in the U.S. District Court for the Southern District of New York and all actions regarding the interpretation, implementation and enforcement of this Library Agreement shall be brought exclusively in such Court, with the Registry and Library submitting to the personal jurisdiction thereof, unless venue in the state in which Library is located is required by the law of such state.
9. Miscellaneous Provisions.
(a) Notices. Unless provided for to the contrary in this Library Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Library Agreement shall be in writing and sent to the Parties at their addresses identified above (or as otherwise provided by notice given pursuant to this Section 9(a) (Notices)). Notice shall be deemed received (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via facsimile or electronic mail, provided that such notice is also sent simultaneously via first class mail. Contact information shall be updated in writing as necessary to ensure that each Party has current information regarding all such contacts.
(b) Governing Law. This Library Agreement shall be governed by and construed in accordance with the law of the State of _______________, without reference to principles of conflicts of laws. [Governing law to be specified in each Library-Registry Agreement. Governing law will be New York or the state in which Library is located if required by the law of such state.]
(c) Entire Agreement. This Library Agreement, including exhibits, sets forth the entire agreement between the Registry and Library with respect to its subject matter.
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 183 of 323

(d) Amendment. This Library Agreement may be amended by a written agreement signed by both Parties, only if such amendment does not impair the rights of Rightsholders under this Library Agreement.
(e) Assignment. Neither Party may assign any of its rights or delegate any of its duties under this Library Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Library Agreement shall be binding upon the successors and permitted assigns of both Parties.
(f) Severability. If any provision of this Library Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Library Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties.
(g) No Waiver. The failure of either Party to act in the event of a breach of this Library Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
(h) Interpretation. The interpretive provisions of Section 17.32 (Interpretation) of the Settlement Agreement apply to this Library Agreement.
(i) Compliance with Law. Notwithstanding any other provision of this Library Agreement, nothing in this Library Agreement requires Library or the Registry to take any action that would violate any applicable law and neither of them shall be held to have breached this Library Agreement by omitting to take any action that, if taken, would violate any applicable law.
(j) Counterparts. This Library Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a Party.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned duly authorized representative of each Party.

Registry: By: Print Name: Title: Date:
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Attachment B-2- Form Of Library-Registry (Cooperating) Agreement

Library: By: Print Name: Title: Date:

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 184 of 323
Exhibits [The Exhibits of each Library-Registry (Cooperating ) Agreement will attach, or incorporate by reference, the following sections from the Settlement Agreement.] Exhibit A: Settlement Agreement Definitions [Relevant definitions from the Settlement Agreement] Exhibit B: Research Corpus [Section 7.2(d) (Research Corpus)] Exhibit C: Exercise of Collective Rights [Section 7.4 (Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights) and Attachment 1 hereto] Exhibit D: Cooperating Library Releases [Cooperating Library releases from Section 10.2 (Releases) and the related definitions from 10.1 (Definitions)] Exhibit E: Third-Party Beneficiary [Section 7.2(f)(ii) and the sections to which it refers] Exhibit F: Dispute Resolution [Article IX (Dispute Resolution)]
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 185 of 323
Attachment 1 Selection of the Designated Representative and Security Representatives, and Establishment of
Governance Rules
1. Designated Representative.
a. Selection. The initial Designated Representative shall be selected by a majority of the votes (expressed in writing or at a meeting (which may include one or more (including all) libraries participating by telephone conference)) of the Fully Participating Libraries and the Cooperating Libraries (voting together as a single class), with each of them having one vote per Book Digitized from such Fully Participating Library’s or Cooperating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). If no candidate succeeds in garnering such majority, then, at the request of any group of Fully Participating Libraries and Cooperating Libraries constituting not less than 10% of the votes as aforesaid, a meeting will be held upon not less than fourteen (14) days’ written notice from such group in order to select the initial Designated Representative. At any such meeting, libraries will be entitled to participate by telephone conference. At any such meeting, the initial Designated Representative shall be selected by a plurality of votes as aforesaid. Following the selection of the initial Designated Representative, the Designated Representative may be removed at any time by a majority vote as aforesaid. The election of any successor Designated Representative will be carried out pursuant to such governance rules as may be established pursuant to Section 1(b) (Governance Rules) below; provided, however, in the absence of creation of relevant governance rules, then the process for determining a successor Designated Representative will be the same process as employed pursuant to this Section 1(a) (Selection) for selection of the initial Designated Representative.
b. Governance Rules. The rules for how the Fully Participating Libraries and the Cooperating Libraries will share the expenses of the Designated Representative, designate a successor Designated Representative, and make decisions regarding the instructions, decisions, and positions to be communicated by the Designated Representative to Google and/or the Registry, as applicable, initially shall be determined by a majority of the votes of the Fully Participating Libraries and the Cooperating Libraries (voting as a single class), with each such library having one vote per Book Digitized from such Fully Participating Library’s or Cooperating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). For each of the instructions, decisions and positions to be communicated by the Designated Representative pursuant to Section 7.4(a) (Designated Representative and Security Representatives) of the Settlement Agreement, such governance rules will include the voting rule by which the Fully Participating Libraries and Cooperating Libraries will determine such instructions, decisions and positions (i.e., whether a majority, super-majority, unanimous or other vote is required for each particular instruction, decision and position); provided, however, that (i) such governance rules shall require the affirmative vote of a Fully Participating Library or a Cooperating Library on any matter that would require that Fully Participating Library or Cooperating Library to take any action (as opposed to consenting as a group
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 186 of 323
to a matter not requiring action by that Fully Participating Library or Cooperating Library) other than to pay its share of the routine expenses of the Designated Representative as determined by the governance rules, (ii) such governance rules shall require the consent of all of the Fully Participating Libraries and all of the Cooperating Libraries with respect to an instruction, decision or position regarding any modification or amendment of the Settlement Agreement specified by Section 7.2(f)(iv) (No Modification Without Consent), (iii) for any governance rule that requires a supermajority or unanimous vote, changing such governance rule will also require the same supermajority or unanimous vote, as the case may be, and (iv) in no event shall any of the Cooperating Libraries have any right to consent or vote with respect to any instruction to the Designated Representative regarding any matters under Article VIII (Security and Breach).
2. Security Representatives.
a. Selection. Each of the initial four (4) representatives of the Fully Participating Libraries described in Section 8.2(b) (Changes to Security Standard) of the Settlement Agreement (each a “Security Representative”) shall be selected by a majority of the votes (expressed in writing or at a meeting (which may include one or more (including all) libraries participating by telephone conference) of the Fully Participating Libraries, with each of them having one vote per Book Digitized from such Fully Participating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). If four (4) candidates do not succeed in garnering such a majority approval, then, at the request of any group of Fully Participating Libraries constituting not less than 10% of the votes as aforesaid, a meeting will be held upon not less than fourteen (14) days written notice from such group in order to select such of the initial four (4) Security Representatives that were not previously approved by majority vote. At any such meeting, libraries will be entitled to participate by telephone. At any such meeting, such initial Security Representatives shall be selected by a plurality of votes as aforesaid. Following the selection of the initial Security Representatives, any Security Representative may be removed at any time by a majority vote as aforesaid. The election of any successor Security Representative will be carried out pursuant to such governance rules as may be established pursuant to Section 2(b) (Governance Rules) below; provided, however, in the absence of creation of relevant governance rules, then the process for determining a successor Security Representative will be the same process as employed pursuant to this Section 2(a) (Selection) for selection of the initial Security Representatives.
b. Governance Rules. The rules for how the Fully Participating Libraries will share the expenses of the Security Representatives, designate successor Security Representatives, and make decisions regarding the instructions, decisions, and positions to be communicated by the Security Representatives to Google and/or the Registry (including as to their freedom to operate independently of such instructions), initially shall be determined by a majority of the votes of the Fully Participating Libraries, with each such library having one vote per Book Digitized from such Fully Participating Library’s Collection for the GLP at the time of the vote (even if a Book ceases to be a Book by reason of its having become a Public Domain Book after having been Digitized). For each of the instructions, decisions and positions to be communicated by the Security Representatives pursuant to Article VIII (Security and Breach) of the Settlement Agreement, such governance rules will include the voting rule by which the Fully Participating Libraries will determine such instructions, decisions and positions (i.e., whether a majority, super-majority, unanimous or other
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Attachment B-2- Form Of Library-Registry (Cooperating) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 187 of 323
vote is required for each particular instruction, decision and position), including as to their freedom to operate independently of such instructions; provided, however, that (i) such governance rules shall require the affirmative vote of a Fully Participating Library on any matter that would require that Fully Participating Library to take any action (as opposed to consenting as a group to a matter not requiring action by that Fully Participating Library) other than to pay its share of the routine expenses of the Security Representatives as determined by the governance rules, (ii) for any governance rule that requires a super-majority or unanimous vote, changing such governance rule will also require the same super-majority or unanimous vote, as the case may be, and (iii) in no event shall any of the Cooperating Libraries have any right to consent or vote with respect to any instruction to the Security Representatives regarding any matters under Article VIII (Security and Breach).
c. Limitation on Authority. Prior to communicating any instruction, decision or position to Google or the Registry, the Security Representatives must (i) notify each Fully Participating Library of each such instruction, decision or position, (ii) confirm (which confirmation will be deemed to have been given if a Fully Participating Library fails to respond to expressly deny such confirmation within thirty (30) days after such notification) with each Fully Participating Library that such instruction, decision or position will not require such Fully Participating Library to take any action that would constitute a violation of any policy of such Fully Participating Library adopted in good faith prior to such Fully Participating Library’s notice of such instruction, decision, or position.
3. Designated Representative and Security Representative Representations. In communicating any instruction, decision or position to Google or the Registry, the Designated Representative and the Security Representatives, as applicable, shall confirm to Google or the Registry that the Fully Participating Libraries and the Cooperating Libraries have authorized the Designated Representative and the Security Representatives to do so, in accordance with the procedures set forth on this Attachment 1.
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Attachment B-2- Form Of Library-Registry (Cooperating) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 188 of 323 ATTACHMENT B3

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 189 of 323
Attachment B-3 to Settlement Agreement
FORM OF LIBRARY-REGISTRY (PUBLIC DOMAIN) AGREEMENT
This LIBRARY-REGISTRY (PUBLIC DOMAIN) AGREEMENT (with all of the exhibits hereto, the “Library Agreement”) is entered into by and between ______________, a ___________ with its principal offices at _____________________ (the “Registry”), on behalf of itself and all Rightsholders, and _____________________, with its principal offices at ____________________________________ (“Library”), is entered into as of _________________ and is effective on the later of such date or the Effective Date of the Settlement Agreement (the “Library Agreement Effective Date”). The Registry and Library are sometimes referred to hereinafter individually as a “Party” and collectively as the “Parties.”
RECITALS WHEREAS, pursuant to a Settlement Agreement between Google and Plaintiffs dated as of October 28, 2008, the Registry has been established as a clearinghouse for the administration of the rights of Rightsholders under the Settlement Agreement; and WHEREAS, all of the Rightshol ders, through the Settlem ent embodied in the Settlem ent Agreement, are deemed to have authorized the Registry to enter into this Library Agreement on their behalf; and WHEREAS, Library desires to become a Public Domain Library under the Settlem ent Agreement. NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Library Agreement, Registry and Library hereby agree as follows: 1. Definitions. Capitalized terms have the meanings ascribed to them in Exhibit A (Settlement Agreement Definitions). 2. Settlement Agreement Terms.
(a) Public Domain Books Only. Library has a Digitization Agreement with Google pursuant to which Library provides material to Google for Digitization. Library agrees that it will not provide materials to Google for Digitization when it knows that those materials are Books.
(b) Obligation to Delete. As of the Library Agreement Effective Date, Library
Attachment B-3-Form of Library-Registry (Public Domain) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 190 of 323
Attachment B-3 to Settlement Agreement
hereby certifies that it has deleted or permanently rendered unusable any Digital Copies of Books provided by Google to Library prior to the Library Agreement Effective Date. If, after the Library Agreement Effective Date, Library discovers any such Digital Copies of Books or Google provides any Digital Copies of Books to Library, Library will delete or permanently render such Digital Copies unusable promptly upon discovery or receipt.
3. Term And Termination.
(a) Effective Date. This Library Agreement, if not terminated pursuant to any provision hereof, shall become effective on the Library Agreement Effective Date.
(b) Term. This Library Agreement shall continue in full force and effect until the last to expire of the U.S. copyright in each Book and Insert, unless otherwise terminated at an earlier date pursuant to Section 3(c) (Termination if Settlement Agreement Not Final) or Section 3(d) (Termination by Library).
(c) Termination if Settlement Agreement Not Final. In the event that the Registry and Library agree that the Effective Date will never occur, this Library Agreement shall be null and void.
(d) Termination by Library. Library may terminate this Library Agreement at any time for any reason or for no reason, upon thirty (30) days’ notice to the Registry.
4. Representations, Disclaimer And Limitation Of Liability.
(a) Mutual Warranties. Each Party represents and warrants to the other that (i) it has full power and authority to enter into this Library Agreement and to perform its obligations hereunder; and (ii) this Library Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms.
(b) Disclaimer. The warranties explicitly set forth above are the only warranties provided herein and are in lieu of all other warranties by the Parties, express or implied, with respect to the subject matter of this Library Agreement.
(c) Limitation of Liability. In no event will Library or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Library Agreement, whether based on breach of contract, tort (including negligence), or otherwise, and whether or not such Party has been advised of
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 191 of 323
Attachment B-3 to Settlement Agreement
the possibility of such damage.
5. Releases.
(a) Use of Digital Copies by Library. Pursuant to Section 10.2(a) (Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees) of the Settlement Agreement, as of the Effective Date, Library is released by Rightsholder Releasors from the Public Domain Library Released Claims. Such section is set forth in Exhibit B (Public Domain Library Releases).
(b) Library Releases of Rightsholders. Without further action by anyone, as of the Effective Date, Library, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation or execution of this Library Agreement.
6. Third-Party Beneficiary. Library acknowledges and agrees that each Rightsholder is a third-party beneficiary of this Library Agreement, entitled to enforce it in accordance with Section 8.3 (Breaches – General Principles) of the Settlement Agreement as if such Rightsholder were a party hereto.
7. Dispute Resolution. Library hereby agrees that all disputes arising under this Library Agreement shall be subject to Exhibit C (Dispute Resolution). Except as provided in Exhibit C (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Library Agreement shall be commenced and maintained only in the U.S. District Court for the Southern District of New York and all actions regarding the interpretation, implementation and enforcement of this Library Agreement shall be brought exclusively in such Court, with the Registry and Library submitting to the personal jurisdiction thereof, unless venue in the state in which Library is located is required by the law of such state.
8. Miscellaneous Provisions.
(a) Notices. Unless provided for to the contrary in this Library Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Library Agreement shall be in writing and sent to the Parties at their addresses identified above (or as otherwise provided by notice given pursuant to this Section 8(a) (Notices)). Notice shall be
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 192 of 323
Attachment B-3 to Settlement Agreement
deemed received (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail or (iv) upon verification of receipt via facsimile or electronic mail, provided that such notice is also sent simultaneously via first class mail. Contact information shall be updated in writing as necessary to ensure that each Party has current information regarding all such contacts.
(b) Governing Law. This Library Agreement shall be governed by and construed in accordance with the law of the State of _______________, without reference to principles of conflicts of laws. [Governing law to be specified in each Library-Registry Agreement. Governing law will be New York or the state in which Library is located if required by the law of such state.]
(c) Entire Agreement. This Library Agreement, including exhibits, sets forth the entire agreement between the Registry and Library with respect to its subject matter.
(d) Amendment. This Library Agreement may be amended by a written agreement signed by both Parties, only if such amendment does not impair the rights of Rightsholders under this Library Agreement.
(e) Assignment. Neither Party may assign any of its rights or delegate any of its duties under this Library Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed. Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Library Agreement shall be binding upon the successors and permitted assigns of both Parties.
(f) Severability. If any provision of this Library Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Library Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties.
(g) No Waiver. The failure of either Party to act in the event of a breach of this Library Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
(h) Interpretation. The interpretive provisions of Section 17.32 (Interpretation) of the Settlement Agreement apply to this Library Agreement.
(i) Compliance with Law. Notwithstanding any other provision of this Library
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Attachment B-3-Form of Library-Registry (Public Domain) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 193 of 323 Attachment B-3
to Settlement Agreement Agreement, nothing in this Library Agreement requires Library or the Registry to take any action that would violate any applicable law and neither of them shall be held to have breached this Library Agreement by omitting to take any action that, if taken, would violate any applicable law.
(j) Counterparts. This Library Agreement may be signed in counterparts, each of which shall constitute a duplicate original. Execution by facsimile shall be fully and legally binding on a Party.
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Attachment B-3-Form of Library-Registry (Public Domain) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 194 of 323

Attachment B-3 to Settlement Agreement

IN WITNESS WHEREOF, this Agreement has been executed by the undersigned duly authorized representative of each Party.

Registry: By: Print Name: Title: Date:

Library: By: Print Name: Title: Date:

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Attachment B-3-Form of Library-Registry (Public Domain) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 195 of 323
Attachment B-3 to Settlement Agreement Exhibits [The Exhibits of each Library-Registry (Public Domain) Agreement will attach, or incorporate by reference, the following sections from the Settlement Agreement.] Exhibit A: Settlement Agreement Definitions [Relevant definitions from the Settlement Agreement used in this Library Agreement] Exhibit B: Public Domain Library Releases [Public Domain Library releases from Section 10.2 (Releases) and the related definitions from 10.1 (Definitions)] Exhibit C: Dispute Resolution [Article IX (Dispute Resolution)]
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Attachment B-3-Form of Library-Registry (Public Domain) Agreement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 196 of 323 ATTACHMENT C

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 1A9t7taochf m32e3nt C to Settlement Agreement
PLAN OF ALLOCATION
ARTICLE I.
Subscriptions
The Registry shall distribute to Rightsholders, as set forth below, all revenues received from Google for all Institutional Subscriptions based on (a) all use of Books in the Institutional Subscription Database (“Subscription Usage Fees”), and (b) the availability of Books and Inserts in the Institutional Subscription Database (“Inclusion Fees”).
1.1 Subscription Usage Fees.
(a) Usage Formula. To calculate the Subscription Usage Fees for each Book used by users of Institutional Subscriptions, the Registry will develop a fair and equitable usage formula. The formula may include factors such as the number of times users view a Book, how much of the Book is viewed, whether and how much of the Book is copied/pasted and/or printed, and each Book’s Settlement Controlled Price.
(b) Usage Fund. To pay Subscription Usage Fees, during the first ten (10) years after the Registry receives the first payment from Google for an Institutional Subscription, the Registry will, subject to Section 4.2 below, deposit into a Subscription Usage Fund seventy-five percent (75%) of the revenues it receives from Google for Institutional Subscriptions. After the first ten (10) years, the Registry shall fund Subscription Usage Fees in accordance with Section 1.2(f) below.
(c) Eligibility. To claim Subscription Usage Fees for a Book, a Rightsholder must register with the Registry within five (5) years of the end of the reporting period in which the Book earned such Subscription Usage Fees. (The Registry will determine an appropriate reporting period pursuant to Section 4.1 below.)
(d) Payment. At the end of each reporting period, and subject to the minimum amount for payment established pursuant to Section 4.1 below, the Registry shall pay Subscription Usage Fees to each Registered Rightsholder whose Book was used during that period. If, at any time within five (5) years after the end of such period, a Rightsholder whose Book was used during that reporting period registers, such Rightsholder shall be paid Subscription Usage Fees for such reporting period.
(e) Unclaimed Funds. Any and all Subscription Usage Fees for a reporting period not claimed by a Rightsholder within five (5) years after the end of such period shall be reallocated by the Registry as follows: first, if the Subscription Inclusion Fund is insufficient to pay all Inclusion Fees, to the Subscription Inclusion Fund (see Section 1.2 below); second, to defray reasonable and necessary operational expenses of the Registry
Attachment C-Plan of Allocation

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 198 of 323
that are related to its performance on behalf of the Rightsholders of the functions described in Section 6.1 (Functions) of the Settlement Agreement and, as determined by the Board of Directors of the Registry in the exercise of its fiduciary duties, to maintain reserves for such expenses; and, third, as to any remaining funds, to Registered Rightsholders whose Books earned Subscription Usage Fees during such reporting period on a basis proportionate to the usage of such Books during such reporting period.
(f) Inserts. Rightsholders of Inserts will not be paid Subscription Usage Fees. They will, however, be eligible for Inclusion Fees, as set forth in Section 1.2 below.
1.2 Inclusion Fees.
(a) Amounts. Inclusion Fees are targeted at US $200 per Book, although the actual per Book Inclusion Fee may be greater or less than US $200, as calculated pursuant to Section 1.2(f) below. Inclusion Fees for Inserts shall be no less than US $50 per Entire Insert and US $25 per Partial Insert (subject to Sections 1.2(b) and 1.2(h) below). Inclusion Fees will be funded from (i) Institutional Subscription revenues, (ii) if implemented, Consumer Subscription revenues, and (iii) if approved by the Registry pursuant to Section 3.2 below, some or all of any excess funds from the US $45 million Google will pay the Registry for Cash Payments.
(b) Inserts. The Registry shall pay an Inclusion Fee for each Insert. The total of all Inclusion Fees paid for all Inserts consisting of Expression from the same work (e.g., from a Book, poem, song lyric, short story, or news article), however, may not exceed US $500.
(c) Eligibility. A Rightsholder will be eligible to receive an Inclusion Fee provided he, she or it satisfies the following criteria:
(i) Such Rightsholder must have registered a Book or Insert with the Registry within five (5) years of the Effective Date; and
(ii) On the fifth (5th) anniversary of the Effective Date or at any time thereafter when such Inclusion Fee is to be paid, (1) if a Book, such Book is a Display Book and no Book Rightsholder has, at that time, directed that such Book be excluded from Institutional Subscriptions; or (2) if an Insert, no Rightsholder of such Insert has, at that time, directed that such Insert be excluded from all Display Uses.
(d) One Inclusion Fee Per Book. Only one Inclusion Fee will be paid per Book (not counting any Inserts therein).
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(e) No Exclusion After Payment. Once a Rightsholder has been paid any portion of the Inclusion Fee for its Book or Insert, such Rightsholder may not thereafter exclude such Book or Insert from Institutional Subscriptions unless such Rightsholder returns to the Registry all or such portion of the Inclusion Fee previously received by such Rightsholder for such Book or Insert.
(f) Funding.
(i) Initial Ten Years.
(1) Beginning on the date on which the Registry receives the first payment from Google for an Institutional Subscription, and during the ten (10) years thereafter, the Registry will, subject to Section 4.2 below, deposit twenty-five percent (25%) of the revenues the Registry receives from Google for Institutional Subscriptions into the Subscription Inclusion Fund and seventy-five percent (75%) of such revenues into the Subscription Usage Fund. The Subscription Inclusion Fund will be divided into two sub-funds: eighty percent (80%) (of the 25%) for the Book Sub-Fund and twenty percent (20%) (of the 25%) for the Insert SubFund.
(2) If, by the end of such ten (10)-year period, the Book SubFund and the Insert Sub-Fund are sufficient to pay US $200 for every Book of an eligible Book Rightsholder and US $50 and US $25 for every Entire Insert and Partial Insert, respectively, of an eligible Insert Rightsholder, the Registry shall complete the payment of all such Inclusion Fees and shall thereafter cease allocating revenues to the Inclusion Fund.
(3) If, at the end of such ten (10)-year period, the amount in the Book Sub-Fund exceeds the amount necessary to pay US $200 for every Book of an eligible Book Rightsholder, or the amount in the Insert SubFund exceeds the amount necessary to pay US $50 or US $25 for every Entire Insert or Partial Insert of an eligible Insert Rightsholder, then such excess shall be paid to eligible Rightsholders of Books from the Book Sub-Fund, and to eligible Rightsholders of Inserts from the Insert SubFund, with each Rightsholder of an Entire Insert being paid twice the amount paid to each Rightsholder of a Partial Insert.
(ii) Subsequent Ten-Year Periods.
(1) Book Sub-Fund. If, at the end of the initial ten (10)-year period (or at the end of any subsequent ten (10)-year periods), the Book Sub-Fund is insufficient to pay US $200 for every Book of an eligible
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Rightsholder, a majority of the Board of Directors of the Registry shall determine whether to continue allocating Institutional Subscription revenues to the Book Sub-Fund for one or more additional ten (10)-year periods, until such time as the amount in the Book Sub-Fund is sufficient to pay US $200 for every Book of an eligible Rightsholder. In the absence of a determination by a majority of the Board to cease such allocation, such allocation shall continue. If the Board votes to cease such allocation, the Inclusion Fee paid for each Book under this Plan of Allocation may be less than US $200. If, at any time before the end of any subsequent ten (10)-year period authorized by the Board, the amount in the Book SubFund is sufficient to pay US $200 for every Book of an eligible Book Rightsholder, the Registry shall complete the payment of such amount and shall thereafter cease allocating revenues to the Book Sub-Fund.
(2) Insert Sub-Fund. If, at the end of the initial ten (10)-year period (or at the end of any subsequent ten (10)-year periods), the Insert Sub-Fund is insufficient to pay US $50 for every Entire Insert and US $25 for every Partial Insert of an eligible Insert Rightsholder, the Registry shall continue to allocate Institutional Subscription revenues to the Insert SubFund until such time as the amount in the Insert Sub-Fund is sufficient to pay such amounts for every Entire Insert and Partial Insert of an eligible Insert Rightsholder. If, at any time before the end of any such subsequent ten (10)-year period, the amount in the Insert Sub-Fund is sufficient to pay US $50 per Entire Insert and US $25 per Partial Insert of an eligible Insert Rightsholder, the Registry shall, at such time, pay such amount and shall thereafter cease allocating revenues to the Insert Sub-Fund.
(3) Deposits After First Ten Years. After the initial ten (10)year period, if the Registry continues to allocate revenues from Institutional Subscriptions to one or both of the Sub-Funds pursuant to paragraphs (1) or (2) above, then the Registry will, subject to Section 4.2 below, deposit ten percent (10%) of such revenues into the Subscription Inclusion Fund and ninety percent (90%) of such revenues into the Subscription Usage Fund. The Registry shall determine what percentage of the amounts deposited into the Subscription Inclusion Fund shall be further allocated to the Book Sub-Fund and/or Insert Sub-Fund (depending on whether all of the Inclusion Fees for Books and/or Inserts have been paid).
(4) Allocation of Revenues After Payment of All Inclusion Fees. After all Inclusion Fees have been paid pursuant to this Section 1.2 above, all revenues the Registry receives from Google for Institutional Subscriptions shall be deposited into the Subscription Usage Fund.
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(g) Disbursement of Inclusion Fees. Depending on the amounts deposited in the Subscription Inclusion Fund or in any Sub-Fund, the Registry may, at any time after the five (5)-year period following the Effective Date and in a manner designed to maximize efficiency, disburse some or all of the Inclusion Fees to eligible Rightsholders.
(h) Insert Rightsholder Exception. An eligible Rightsholder of an Insert may receive more than the Inclusion Fee for an Insert, as set forth in Sections 1.2(a) and 1.2(b) above, in accordance with the following:
(i) The Rightsholder demonstrates to the Registry (or Arbitrator under Article IX (Dispute Resolution) of the Settlement Agreement) that it has a written contract or written permission by which such Rightsholder had authorized a Book Rightsholder to include such Insert in a Book; and
(ii) Such written contract or written permission specifically provides that the Insert Rightsholder is entitled to a specified amount of monetary compensation, set forth on the face of such contract or written permission, for the Book Rightsholder’s use of an Entire Insert or Partial Insert in an online database or method of distribution substantially similar to the Institutional Subscription; and
(iii) Such amount of such monetary compensation exceeds US $50 (for an Entire Insert) or US $25 (for a Partial Insert); and
(iv) After notifying the Rightsholder of the Book that contains such Insert, the Registry (or Arbitrator) decides that, in light of such contract or permission and any response thereto, such Rightsholder of the Insert is entitled to receive the specified amount of monetary compensation set forth in such writing; and
(v) The decision of the Registry (or Arbitrator) will be binding on the Rightsholders of the Book and of the Insert. Any fees paid to a Rightsholder of the Insert in accordance with such decision will be paid from the Insert Sub-Fund.
1.3 Consumer Subscriptions. If Google is authorized by the Registry to sell Consumer Subscriptions pursuant to Section 4.7(d) (Consumer Subscription Models) of the Settlement Agreement, the Registry shall pay Rightsholders subscription usage fees using a fair and equitable methodology that is based on the methodology for Subscription Usage Fees implemented for Institutional Subscriptions.
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ARTICLE II.
Revenue Models Other Than Subscriptions
2.1 Book Use Revenues. The Registry will, subject to Section 4.2 below, distribute to Rightsholders of Books the revenues earned from Consumer Purchase, Advertising Uses, per-page printing fees from the Public Access Service and commercial public access services and, if agreed, the Revenue Models specified in Sections 4.7(a) (Print on Demand), 4.7(b) (Custom Publishing) and 4.7(c) (PDF Download) of the Settlement Agreement, on a Book-by-Book basis according to actual use or purchase by users (“Book Use Revenues”).
2.2 Eligibility. To claim Book Use Revenues for a Book, a Rightsholder must register with the Registry within five (5) years after the end of the reporting period in which the Book earned such Book Use Revenues.
2.3 Unclaimed Funds.
(a) Book Use Revenues. The Registry shall distribute all Book Use Revenues paid to the Registry by Google that are not claimed by Rightsholders to a Book use fund (“Book Use Fund”). Five (5) years after the end of the reporting period in which such Book Use Revenues were earned, the Registry shall allocate such unclaimed Book Use Revenues pursuant to clauses (1), (2) and (3) of Section 6.3(a)(i) (Unclaimed Funds-NonSubscription Revenue Models) of the Settlement Agreement, provided that any payment under Section 6.3 (a)(i)(2) of the Settlement Agreement will be made to a Rightsholder of a Book only if and to the extent that such Book earned Book Use Revenues during such reporting period, and, further, that each such payment, together with all previous Book Use Revenues paid to such Book’s Rightsholder for such Book for such reporting period, shall not exceed such Rightsholder’s share of the seventy percent (70%) of the Gross Revenues (as defined in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models) of the Settlement Agreement) earned by such Book during such reporting period. The difference between such previously-paid amounts and such Rightsholder’s share of seventy percent (70%) of the Gross Revenues is referred to in this Plan of Allocation as the “Maximum Usage Payment.” If the Book Use Fund is insufficient to pay the Maximum Usage Payments to all Rightsholders whose Books earned such Book Use Revenues, the Registry shall allocate the Book Use Fund to each such Rightsholder in proportion to the Maximum Usage Payment owed to each such Rightsholder.
(b) Other Revenue Models. If and at such time as Google and the Registry agree to implement a Revenue Model not specified in Part I or Section 2.1 above, the Registry shall at that time determine a fair and equitable methodology for distributing revenues from such Revenue Model that are not claimed by Rightsholders five (5) years after the end of the reporting period in which such revenues were earned.
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2.4 Inserts. Rightsholders of Inserts will not be paid from revenues earned in Revenue Models other than Institutional Subscription or Consumer Subscriptions (if implemented), but they will be eligible for Inclusion Fees under Part I above.
ARTICLE III.
Cash Payments
3.1 Amounts. Cash Payments shall be made from the Settlement Fund in accordance with Section 5.1 (Cash Payments to Class Members Whose Books and Inserts Have Been Digitized) of the Settlement Agreement.
3.2 Excess Funds. If, after Cash Payments have been made to all Rightsholders entitled to receive such payments from the Settlement Fund, excess funds remain from Google’s minimum payment of US $45 million pursuant to Section 5.1(b) (Funding of Cash Payments) of the Settlement Agreement, then such excess funds will be paid, on a proportional basis, to all such Rightsholders until all such Book Rightsholders receive an amount no greater than US $300 per claimed Book and until all such Insert Rightsholders receive an amount no greater than US $75 per claimed Entire Insert and US $25 per claimed Partial Insert. Any funds remaining thereafter shall be paid to the Registry and shall be disposed of as follows: three (3) years after the Effective Date, the Board of Directors of the Registry shall determine by majority vote whether some or all of such balance shall be deposited into the Subscription Inclusion Fund or be used for the performance by the Registry of the functions described in Section 6.1 (Functions) of the Settlement Agreement.
ARTICLE IV.
Miscellaneous
4.1 Administrative Efficiency. To minimize its administrative costs and in its discretion, the Registry shall determine the length of each reporting period and establish a minimum amount for making payments to Rightsholders; provided, however, that accrued amounts in excess of US $25 or more will be distributed at least every five (5) years; provided, further, that the payment of Cash Payments, irrespective of the amount of such Cash Payment, shall be made promptly after the resolution of all disputes arising out of the final report pursuant to Section 13.5 (Final Report Concerning Cash Payments) of the Settlement Agreement.
4.2 Registry Administration Costs. The Registry shall pay net revenues to Rightsholders pursuant to Parts I and II above after deducting the Registry’s costs of administration and operations, and any taxes payable by the Registry, on a proportionate and equitable basis.
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4.3 Author-Publisher Procedures. All payments due under this Plan of Allocation to Author Sub-Class members and to Publisher Sub-Class members shall be made in accordance with the Author-Publisher Procedures. Multiple Author Rightsholders and multiple Publisher Rightsholders may share their respective payments pursuant to agreements or arrangements between them.
4.4 Claiming Rightsholders. Payments to Rightsholders will be subject to the eligibility requirements set forth in Section 13.1 (Registration and Completing Claims) of the Settlement Agreement and in the claim forms developed pursuant thereto.
4.5 No Precedential Effect. This Plan of Allocation is for purposes of the Settlement Agreement only, and has no precedential effect.
4.6 Dispute Resolution for Insert Rightsholders. All disputes arising under this Plan of Allocation shall be resolved under the dispute resolution mechanism set forth in Article IX (Dispute Resolution) of the Settlement Agreement.
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 205 of 323 ATTACHMENT D

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 2A0t6taochf m32e3nt D to Settlement Agreement
SECURITY STANDARD
Table Of Contents
1 Overview and Definitions ........................................................................................1
2 Security Implementation Plans ................................................................................1
3 Minimum Requirements ..........................................................................................2 3.1 Security Management ..................................................................................2 3.1.1 Information Security Policy.............................................................2 3.1.2 Security Representative ...................................................................2 3.1.3 Security Awareness..........................................................................2 3.1.4 Incident Response ............................................................................3 3.2 Identification and Authentication ................................................................3 3.2.1 User Identification and Authentication............................................3 3.2.2 Authentication and Password Management.....................................3 3.3 Access Controls ...........................................................................................5 3.3.1 Account Management ......................................................................5 3.3.2 Access Approval Process (System-Level Access)...........................5 3.3.3 Supervision and Review – Access Control......................................6 3.4 Audit and Accountability.............................................................................6 3.4.1 Logging and Audit Requirements for Fully Participating Libraries and Host Sites ...................................................................7 3.4.1.1 Auditable Events..................................................................7 3.4.1.2 Content of Audit Records ....................................................7 3.4.1.3 Protection of Audit Information...........................................8 3.4.1.4 Audit Record Retention .......................................................8 3.4.2 Marking of Image Files....................................................................8 3.4.3 Forensic Analysis.............................................................................9 3.5 Network Security .........................................................................................9 3.5.1 Electronic Perimeter.........................................................................9 3.5.2 Network Firewall ...........................................................................10 3.5.3 Device Hardening ..........................................................................10 3.5.4 Network Security Testing ..............................................................10 3.5.5 Remote Network Access................................................................11 3.5.6 Encryption of Digitized Files.........................................................11 3.6 Media Protection........................................................................................12 3.6.1 Media Access .................................................................................12 3.6.2 Media Inventory.............................................................................12 3.6.3 Media Storage ................................................................................12 3.6.4 Media Sanitization and Disposal ...................................................13 3.7 Physical and Environmental Protection .....................................................13 3.7.1 Physical Access Authorizations.....................................................13
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3.7.2 Physical Access Control ................................................................14 3.7.3 Visitor Control ...............................................................................14 3.7.4 Access Records ..............................................................................14 3.8 Risk Assessment ........................................................................................14 3.8.1 Risk Assessment ............................................................................14 3.8.2 Vulnerability Management ............................................................15 3.9 Digitized File Content Delivery by Google ...............................................15 3.9.1 Preview Uses..................................................................................15 3.9.2 Consumer Purchase........................................................................16 3.9.3 Institutional Subscription ...............................................................16 3.10 Access to Research Corpus by Host Sites..................................................17 3.11 Use of Library Digital Copy by Fully Participating Libraries...................17
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1 Overview and Definitions
This is the Security Standard required by the Settlement Agreement.
Definitions:
“Authorized Personnel” of a Responsible Party means the employees, vendors, contractors and business partners of the Responsible Party who access (i) unencrypted Digitized Files or systems storing unencrypted Digitized Files, and (ii) encrypted Digitized Files or systems storing encrypted Digitized Files to the extent such persons have access to the applicable encryption keys, in both cases, for the purpose of maintenance, support or development. The term “Authorized Personnel” does not include End Users.
“Digitized Files” refers (i) in the case of Google, to electronic files of Books Digitized by or for Google, or provided to Google and used under the authorizations granted to Google in the Settlement Agreement, (ii) in the case of Fully Participating Libraries, to electronic files that are included in any LDC, or (iii) in the case of Host Sites, to electronic files that are included in the Research Corpus and, for each of the foregoing clauses (i) – (iii), unless otherwise specified, include only the individual image files and the OCR output from such electronic files. This definition of Digitized Files does not include electronic files to the extent Google uses such files pursuant to then-in-effect agreements directly with individual Rightsholders (e.g., through the Partner Program).
“End Users” means Google’s end users and does not include Authorized Personnel.
“Responsible Party” means the Person that is required to comply with this Security Standard in accordance with Article VIII of the Settlement Agreement, the Library-Registry (Fully Participating) Agreement and the Host Site-Registry Agreement and, as the context requires, shall refer to Google, a Fully Participating Library or a Host Site.
All other capitalized terms used, but not defined, in this Security Standard have the same meanings as in the Settlement Agreement.
2 Security Implementation Plans
In accordance with Article VIII of the Settlement Agreement, Google, each Fully Participating Library and each Host Site is required to formulate a Security Implementation Plan that meets the requirements of this Security Standard.
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3 Minimum Requirements
This Section includes the minimum requirements that the Responsible Party shall use in protecting unencrypted Digitized Files.
3.1 Security Management
The requirements under this heading pertain to the ability of the Responsible Party to oversee and manage the information security program and associated controls through policies, personnel, training and procedures.
3.1.1 Information Security Policy
Establish (if not already in place), publish, maintain and disseminate information security policies that address all of the requirements contained herein and that are disseminated to all relevant Authorized Personnel. These policies shall be reviewed annually and updated when necessary. Information security policies are approved annually and after each revision by the appropriate management in the Responsible Party’s organization. Maintain appropriate records of such approval.
3.1.2 Security Representative
Each Responsible Party that has custody of unencrypted Digitized Files is to have a formally appointed employee (“Information Security Representative” or “ISR”) that understands the policies and procedures used to specifically control sensitive areas and information. The ISR will acknowledge his/her responsibilities and the Responsible Party will keep a record of such acknowledgement.
3.1.3 Security Awareness
Implement (if not already in place) a security awareness program for all Authorized Personnel that will include a review upon hire, and retraining at least every three (3) years. The Responsible Party will keep a record of such retraining and acknowledgements by such Authorized Personnel that they have been retrained.
Authorized Personnel shall be informed that systems contain sensitive copyrighted material and that access to such material is restricted and subject to specific access controls.
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3.1.4 Incident Response
Maintain security incident response plans that will address the response procedures, roles and responsibilities, and communication with contact details.
In accordance with Section 8.3 of the Settlement Agreement, each Responsible Party is required to promptly report to the Registry all breaches of its Security Implementation Plan other than Inconsequential Breaches. Breaches that pose a reasonable risk of exposing unencrypted Digitized Files, and all other breaches that are not Inconsequential Breaches, shall be tracked. All such breaches, as well as Inconsequential Breaches resulting in either disciplinary action or changes to the Responsible Party’s information security policies, shall be disclosed by the Responsible Party during an audit.
3.2 Identification and Authentication
Requirements under this heading pertain to the controls that require the Responsible Party’s Authorized Personnel, management and administrators to have an authorized account on the network and/or systems when accessing unencrypted Digitized Files. To use those accounts, each such user must have a unique identifier and a means of authenticating his/her identity.
3.2.1 User Identification and Authentication
Passwords, passphrases, digital keys or other similar methods (“Credentials”) are used to authenticate System-level Access to systems storing and processing unencrypted Digitized Files.
3.2.2 Authentication and Password Management
Ensure proper user authentication and password management for access to unencrypted Digitized Files and their associated data stores, applications and tool sets.
Authentication and password management controls in this Section should adhere to FIPS 112, Section 4.2 – Password System for Medium Protection Requirements of the National Institute of Standards Technology (“NIST”), with the exception that passwords shall not be transmitted in cleartext. If, however, a Responsible Party does not adhere to FIPS 112 Section 4.2, then it
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shall implement authentication and password management controls that provide protection equivalent to such standard with respect to protecting the security of the unencrypted Digitized Files and that do not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party implements authentication and password management controls that provide such equivalent level of protection, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any difference between the requirements of FIPS 112 Section 4.2 and the Responsible Party’s actual authentication and password management controls, (ii) provide a business justification for each such difference, and (iii) demonstrate that such implementation provides such an equivalent level of protection and does not pose any such undue risk of a security breach.

•

Control the addition, deletion, and modification of user

IDs, credentials, and other identifier objects.

•

Immediately revoke access for any Authorized Personnel

who are terminated.

•

Do not permit Authorized Personnel to share their unique

accounts.

•

Put in password change policies and procedures. Educate

Authorized Personnel about these policies and require that

they change their passwords when appropriate.

•

Require Authorized Personnel to use passwords that cannot

be easily guessed or brute-forced.

•

Require idle sessions to be logged out or screens to be

locked after a reasonable period of time if they are left

unattended.

•

Require authentication for access to any data storage

containing unencrypted Digitized Files. This includes

access by applications, administrators, and all other support

personnel.

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3.3 Access Controls
The requirements under this heading pertain to the ability of the Responsible Party to control access to unencrypted Digitized Files, to limit that access only to Authorized Personnel, and to further limit what actions Authorized Personnel may take with unencrypted Digitized Files. Access controls should adhere to the Moderate Controls for AC-1, AC-2 and AC-3 of Appendix F of NIST 800-53 – The Security Control Catalog. If, however, a Responsible Party does not adhere to such standard, then it shall implement access controls that provide protection equivalent to such standard with respect to protecting the security of the unencrypted Digitized Files and that do not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party implements access controls that provide such equivalent level of protection, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any difference between the requirements of the Moderate Controls for AC-1, AC-2 and AC-3 of Appendix F of NIST 800-53 and the Responsible Party’s actual access controls, (ii) provide a business justification for each such difference, and (iii) demonstrate that such implementation provides such an equivalent level of protection and does not pose any such undue risk of a security breach.
3.3.1 Account Management
Access (“System-level Access”) for the set-up and maintenance of hardware and software of systems storing and processing unencrypted Digitized Files requires Authorized Personnel to log in.
3.3.2 Access Approval Process (System-Level Access)
The Responsible Party will implement a process to manage System-level Access to unencrypted Digitized Files. This process will encompass the following:
• The Responsible Party will select persons (“Access Approvers”) who will be responsible for approving System-level Access to systems containing unencrypted Digitized Files.
• No person shall be granted System-level Access to systems where unencrypted Digitized Files are stored unless such access has been approved by an Access Approver.
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• Access Approvers may only approve System-level Access for personnel who require it for the purpose of providing system maintenance or to perform appropriate job duties.
• Access is removed for Authorized Personnel no longer requiring System-level Access to the systems where unencrypted Digitized Files are stored or processed.
• Authorized Personnel leaving the employment of the Responsible Party have their System-level Access removed at the time of termination.
• The System-level Access rights of any Authorized Personnel will be suspended if the Responsible Party becomes aware of or has reason to believe that such individual is involved in inappropriate access to unencrypted Digitized Files.
• A list (“Authorization List”) of Authorized Personnel authorized to have System-level Access to systems storing or processing unencrypted Digitized Files is actively maintained, managed, and available to the ISR or his/her delegate.
3.3.3 Supervision and Review – Access Control
The Authorization List is reviewed on a yearly basis, and acknowledged by the ISR or his/her delegate.
3.4 Audit and Accountability
The requirements under this heading pertain to the ability of an applicable Responsible Party to (a) record the actions of Authorized Personnel, if required, (b) identify the source of an Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, as applicable, and (c) conduct forensic analysis regarding any such breach. If, however, a Responsible Party does not adhere to these requirements, then it shall implement controls that provide protection equivalent to such requirements with respect to protecting the security of the unencrypted Digitized Files and that do not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party implements controls that provide such equivalent level of protection, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any
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difference between the requirements of this section and the Responsible Party’s actual controls, (ii) provide a business justification for each such difference, and (iii) demonstrate that such implementation provides such an equivalent level of protection and does not pose any such undue risk of a security breach.
3.4.1 Logging and Audit Requirements for Fully Participating Libraries and Host Sites
The requirements under this heading pertain to the ability of the Fully Participating Libraries and Host Sites (other than Google) to record the actions of Authorized Personnel described in this Section.
3.4.1.1 Auditable Events
Fully Participating Libraries and Host Sites (other than Google) will record the following events relating to access of unencrypted Digitized Files, and maintain such information in logs:
• Authentication events
• File access events
• Administrative events
3.4.1.2 Content of Audit Records
Audit log records of Fully Participating Libraries and Host Sites (other than Google) relating to access to unencrypted Digitized Files will contain the following:
• Date and time of event
• User responsible for event
• Object of event (file name, database field, etc)
• Type of event
All systems used to support the audit logging function must have the current internal system time accurately reflected and synchronized to a single time source to ensure time is
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constant across all delivery systems for event logging. Automated methods should be used to ensure time is synchronized.
3.4.1.3 Protection of Audit Information
Fully Participating Libraries and Host Sites (other than Google) will ensure that audit files and audit evidence relating to the access to unencrypted Digitized Files are protected from inappropriate modifications.
3.4.1.4 Audit Record Retention
Audit logs relating to access to unencrypted Digitized Files are to be maintained and readily available for a period of time reasonably necessary, but, in no event, less than six (6) months, to allow access to be traced in case of an incident. Such logs must also be maintained for at least an additional six (6) months thereafter. Each Security Implementation Plan shall specify the period of time such logs will be maintained.
3.4.2 Marking of Image Files
Google will take the following measures to identify the source of a security breach. Google will include an identifying mark on Digitized File images served to End Users through Display Uses that use such Digitized File images. In addition, Google will include on all Digitized File images included (1) in an LDC of a Fully Participating Library, and (2) in a Research Corpus of a Host Site, or of Google, to the extent Google becomes an additional Host Site pursuant to Section 7.2(d)(ii) of the Settlement Agreement, information, in the form of a metadata tag or similar form of identification, identifying the institution to which Google provided such Digitized File images. At any time, the Registry, a Fully Participating Library or a Host Site may provide to Google, or Google may otherwise obtain, Digitized File images that may have been obtained due to an Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. With respect to any such Digitized File images, Google will analyze such Digitized File images and provide the Registry with information and results of any such analysis. Information provided to the Registry will include, if determinable, the potential source of such images (i.e., whether such images originated from a revenue model authorized
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under the Settlement Agreement or an internal file of Google, a Participating Library or a Host Site).
Google will include as part of its Security Implementation Plan a description of the processes it will use to identify the source of any Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access that may occur. Such description will include an explanation of Google’s processes for responding to any such Unauthorized Access, Prohibited Access or Third Party Unauthorized Access.
3.4.3 Forensic Analysis
In the event of an Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, the Responsible Party identified as the source of such breach will evaluate and analyze all reasonably determinable information to identify (a) the source of such breach (i.e., to determine whether the source of such breach was internal to the Responsible Party or external, such as caused by a third party), (b) how such breach occurred, and (c) ways to prevent any such Unauthorized Access, Prohibited Access or Third Party Unauthorized Access, as applicable, from reoccurring. Each Responsible Party identified as the source for an Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access will meet and confer with the Registry to provide the status of its evaluation and analysis and, upon the Registry’s request, any reasonable reports requested by the Registry.
3.5 Network Security
The requirements under this heading pertain to the controls that limit the Responsible Party’s access to the network on which unencrypted Digitized Files are accessible.
3.5.1 Electronic Perimeter
An electronic perimeter is created around systems storing and processing unencrypted Digitized Files as one safeguard against theft. The definition of an electronic perimeter may vary according to the needs of a particular Responsible Party to connect systems and networks to each other.
Systems inside the perimeter are only provided with the ability to communicate with systems outside the perimeter for the purpose of
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serving data to End Users and for Remote Access as described in Section 3.5.5.
3.5.2 Network Firewall
Maintain a network barrier that acts as a firewall to prevent unauthorized traffic from reaching systems that store unencrypted Digitized Files.
3.5.3 Device Hardening
Maintain documentation for device hardening of network and computing systems that is consistent with guidelines provided by NIST Section 4.2 of NIST 800-123. Device hardening of network and computing systems should adhere to Section 4.2 of NIST 800-123 (Hardening and Securely Configuring the OS). If, however, a Responsible Party does not adhere to Section 4.2 of NIST 800-123, then it shall implement device hardening of network and computing systems that provides protection equivalent to such standard with respect to protecting the security of the unencrypted Digitized Files and that does not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party implements device hardening of network and computing systems that provides such equivalent level of protection, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any difference between the requirements of such standard and the Responsible Party’s actual implementation of device hardening, (ii) provide a business justification for each such difference, and (iii) demonstrate that such implementation provides such an equivalent level of protection and does not pose any such undue risk of a security breach.
3.5.4 Network Security Testing
Conduct annual reviews or network vulnerability scans that identify issues that PCI DDS describes as level 3 or higher. Security fixes for identified issues should be addressed as described in Section 3.8.2. Documentation of compliance shall be maintained and acknowledged by the ISR or his/her delegate.
If, however, a Responsible Party does not conduct annual reviews or network vulnerability scans as required by the preceding
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paragraph, then it shall conduct network security tests that provide protection equivalent to such reviews or such scans with respect to protecting the security of the unencrypted Digitized Files and that do not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party conducts network security tests that provide such equivalent level of protection, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any difference between the requirements of the preceding paragraph and the Responsible Party’s actual network security tests, (ii) provide a business justification for each such difference, and (iii) demonstrate that the Responsible Party’s network security testing provides such an equivalent level of protection and does not pose any such undue risk of a security breach.
Each Responsible Party will maintain documentation describing the findings of the annual reviews, network vulnerability scans or equivalent protection measures required by this Section, as applicable, as well as records relating to the remediation of identified issues.
3.5.5 Remote Network Access
When Authorized Personnel require System-level Access (as defined above) to systems within the perimeter from outside the perimeter (“Remote Access”), encryption and reasonable authentication mechanisms are used to establish the identity of such Authorized Personnel.
3.5.6 Encryption of Digitized Files
In encrypting Digitized Files, the Responsible Party will use the algorithms and key sizes recommended in NIST SP 800-57 Part 1 – Recommended algorithms and minimum key sizes table. If, however, a Responsible Party does not adhere to NIST SP 800-57 Part 1 – Recommended algorithms and minimum key sizes table, then, in encrypting Digitized Files, it shall use encryption algorithms and key sizes that provide protection equivalent to such standard with respect to protecting the security of the unencrypted Digitized Files and that do not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party uses encryption algorithms and key sizes that provide such
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equivalent level of protection, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any difference between the requirements of such standard and the Responsible Party’s actual encryption of Digitized Files, (ii) provide a business justification for each such difference, and (iii) demonstrate that such implementation provides such an equivalent level of protection and does not pose any such undue risk of a security breach.
Encryption keys will only be provided to Authorized Personnel.
3.6 Media Protection
The requirements under this heading pertain to the Responsible Party’s protection of media containing unencrypted Digitized Files.
3.6.1 Media Access
Access to media containing unencrypted Digitized Files must be limited to authorized individuals only.
3.6.2 Media Inventory
Maintain a media inventory log to verify that periodic media inventories are performed. The ISR or his/her delegate should validate that such a log is maintained.
Digital media, such as hard drives and magnetic tape containing unencrypted Digitized Files, is tracked so that theft or loss of unencrypted Digitized Files can be detected. Media will be labeled in a way that facilitates tracking.
3.6.3 Media Storage
Storage media containing unencrypted Digitized Files are maintained on premises or stored off-site in controlled facilities. Only a limited number of Authorized Personnel are authorized to release or receive tapes containing unencrypted Digitized Files (backup media) from an offsite storage vendor. Documentation of the list of such personnel is maintained and reviewed periodically, but no less frequently than annually, by the ISR or his/her delegate.
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3.6.4 Media Sanitization and Disposal
When digital media are retired or replaced, any Digitized Files that are unencrypted will be deleted or rendered permanently unusable from the digital media.
Maintain an “end of life” disposal process for all media hardware components. Disposal of media that contains unencrypted Digitized Files must render the data unrecoverable. This requirement includes, but is not limited to, magnetic tape, CD-ROM, DVD, hard drives, and USB devices.
3.7 Physical and Environmental Protection
The requirements under this heading pertain to the Responsible Party’s safeguards with respect to physical access to and protection of Digitized Files that are unencrypted.
If, however, a Responsible Party does not adhere to these physical access safeguards with respect to its scanning facilities, then, with respect to such facilities, it shall implement safeguards that provide protection equivalent to the requirements of this Section with respect to protecting the security of the unencrypted Digitized Files and that do not pose an undue risk of a security breach that would result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access. If the Responsible Party implements physical access safeguards that provide such equivalent level of protection for its scanning facilities, then, in its Security Implementation Plan, the Responsible Party shall (i) describe any difference between the requirements of this Section and the Responsible Party’s actual safeguards, (ii) provide a business justification for each such difference, and (iii) demonstrate that such implementation provides such an equivalent level of protection and does not pose any such undue risk of a security breach.
3.7.1 Physical Access Authorizations
As a safeguard against physical theft, access to facilities where unencrypted Digitized Files are stored or processed is restricted. The level of access varies and depends on the role of the Authorized Personnel accessing such unencrypted Digitized Files and whether such Authorized Personnel are “trusted agents” or certified third parties.
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Access to the Responsible Party’s facilities where unencrypted Digitized Files are stored or accessible and similar sensitive areas are restricted to only the Responsible Party’s authorized employees, vendors and contractors, certified third parties, and authorized visitors.
Access to sensitive areas where unencrypted Digitized Files are stored or accessed, such as data center(s) and tape libraries, for all persons requires approval by appropriate facilities managers. The approvals are documented. Access for terminated or transfer employees is revoked on or before the last day of employment.
3.7.2 Physical Access Control
The use of entry systems, such as card readers, is used where possible to verify the credentials of Authorized Personnel passing through doors and to provide a method of tracking these individuals.
3.7.3 Visitor Control
Visitors to facilities where unencrypted Digitized Files are kept will be individually authorized for access. Responsible Parties will maintain a process for admitting visitors into areas where unencrypted Digitized Files are kept. This process will include controls on who can authorize access and a detailed description of how visitor log records for the facility are kept.
3.7.4 Access Records
No less than annually, the ISR or his/her delegate shall review the currency and appropriateness of physical access to the facility where unencrypted Digitized Files are stored and sensitive areas. Logs will be maintained so that discrepancies can be discovered.
3.8 Risk Assessment
The requirements under this heading pertain to the auditing and discovery of security vulnerabilities.
3.8.1 Risk Assessment
Pursuant to Section 8.2(c) of the Settlement Agreement, the Responsible Party is required to permit a mutually agreeable third party to conduct annual (or, if reasonably necessary, semi-annual)
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audits of security and usage to verify such Responsible Party’s compliance with its then-in-effect Security Implementation Plan.
3.8.2 Vulnerability Management
Maintain a program and process to identify newly discovered security vulnerabilities, including as a result of network security testing pursuant to Section 3.5.4. Security fixes (e.g., patches, mitigating controls) are to be applied as soon as possible when vulnerabilities are deemed critical in order to protect the asset from intrusion vulnerabilities.
If, however, a Responsible Party does not or will not apply a security fix as soon as possible when it discovers a vulnerability deemed critical, then, in its Security Implementation Plan and to the auditor the Responsible Party shall (i) provide a business justification for not doing so and (ii) demonstrate that not fixing such vulnerability does not pose any such undue risk of a security breach.
3.9 Digitized File Content Delivery by Google
This Section describes the security requirements applicable to Google in serving the content of Digitized Files to End Users under the terms defined in the Settlement Agreement.
3.9.1 Preview Uses
Google shall use commercially reasonable methods to identify unique Access Points from which Books contained within Google Book Search are being accessed for the purposes of Preview Use through signals such as the IP address, cookies and similar signals that may be available. Google shall monitor and track access to Preview Use pages from unique Access Points. “Access Point” means a specific computer from which Google Book Search is accessed to the extent such access can be identified through signals such as a cookie, IP address or similar signals. Different End Users accessing Google Book Search from the same computer will be tracked as a single End User for the sake of monitoring Preview Uses.
For each unique Access Point, Google will track and count unique Preview Use pages viewed for each individual Book. When the number of Preview Use pages from a specific Book accessed from
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a single Access Point has reached the allowed Preview Use quota, Google will restrict future access to such Book by that End User from the Access Point to the Preview Use pages that that End User already has viewed.
Google shall identify blacklisted pages for each Book and will use commercially reasonable efforts to prevent those pages from being shown to any End User as part of any Preview Use. Google may change the specific pages that will be blacklisted for a given Book from time to time. Google shall use commercially reasonable efforts to keep blacklisted portions of a Book from changing for a period of at least ninety (90) days.
3.9.2 Consumer Purchase
Google shall use commercially reasonable efforts to authenticate individual End Users purchasing access to individual Books through the use of account login or other equivalent method. An End User that is logged in will be identified as an Identified User based upon such End User’s login account information.
Access to the full contents of a Book through Consumer Purchase will be limited to identified End Users who have purchased access to that Book.
Google will encourage End Users to not share or transfer their accounts by monitoring simultaneous login. If Google determines that an identified End User is simultaneously logged in and accessing books from two computers, then Google shall disable one of the Access Points and require re-authentication from that Access Point.
3.9.3 Institutional Subscription
Google shall use commercially reasonable efforts to authenticate individual End Users for access to Books in an Institutional Subscription by verifying that an individual is affiliated with an institution with an active subscription. Google’s efforts will be in partnership with the subscribing institutions in a manner consistent with, or otherwise equivalent to, generally accepted industry standards for authentication of use of subscriptions. Techniques used may include IP address authentication, user login, and/or leveraging authentication systems already in place at an individual institution.
16
Attachment D-Security Standard

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 224 of 323
3.10 Access to Research Corpus by Host Sites A Host Site’s Security Implementation Plan shall describe the processes and procedures it will employ to comply with the requirement in Section 7.2(d) of the Settlement Agreement, and in the Host Site-Registry Agreement, that only Qualified Users, reviewers and challengers may have access to the Research Corpus.
3.11 Use of Library Digital Copy by Fully Participating Libraries A Fully Participating Library’s Security Implementation Plan shall describe the processes and procedures it will employ to comply with the requirements in Section 7.2(b) and Section 7.2(c) of the Settlement Agreement, and in the Library-Registry (Fully Participating) Agreement, that permit and prohibit access to that Fully Participating Library’s Library Digital Copy.
17
Attachment D-Security Standard

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 225 of 323 ATTACHMENT E

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 226 of 323
Attachment E to Settlement Agreement
SAFE HARBOR PUBLIC DOMAIN PROCESS
For purposes of determining whether the safe harbor in Section 3.2(d)(v)(3) of the Settlement Agreement is applicable to Google’s use of a work, Google shall apply the factors and rules set forth in this Attachment E. Nothing in the Settlement Agreement requires Google to apply such factors or rules to any work but, if it does not do so, then Google shall not be entitled to such safe harbor for such work. Any determination by Google that a work is a Public Domain Book is solely for the purposes of Section 3.2(d)(v) and is not to be relied on or invoked for any other purposes, including determining whether a work is in fact in the public domain under the Copyright Act.
1. FACTORS
1.1 Copyright Date To ascertain a work’s copyright date, at least two people shall review at least the title page (and other pages, as appropriate, if the copyright date does not appear on the title page) of a work. If, without communication between two of such reviewers, they each found the same copyright date, then that date is deemed to be the work’s “Reviewed Copyright Date.” If the reviewers did not find the same copyright date or the reviewers cannot determine a copyright date, Google shall search its own bibliographic and other records, and other records reasonably available to it. If Google determines that records from more than one source indicate the same copyright date, then that date may be deemed to be the work’s “Reviewed Copyright Date.”
1.2 Publication Place To ascertain a work’s place of publication, at least two people shall review at least the title page (and other pages, as appropriate, if the place of publication does not appear on the title page) of a work. If, without communication between two of such reviewers, they each found that either (a) a location within the United States is indicated as the apparent place of publication, or (b) if the place of publication is not apparent, at least one of the places set forth on the title page or elsewhere is within the United States, then the work is deemed to be a “Presumed U.S. Publication.” If the reviewers did not find the same place of publication, Google shall search its own bibliographic and other records, and other records reasonably available to it. If Google determines that records from more than one source indicate the same place of publication, and that place is a location within the United States, then the work may be deemed to be a “Presumed U.S. Publication.”
1.3 Copyright Notice To ascertain whether a work bears a copyright notice complying with the Copyright Act (“Copyright Notice”), at least two people shall review at least the title page (and the copyright page, if a Copyright Notice is not on the title page) of a work. If, without communication between two of such reviewers, they each found that those pages do not contain a Copyright Notice, then the work is deemed “Presumably Does Not Contain a Copyright Notice.” If the reviewers did not agree, and Google determines that the scanned images of a work do not contain a Copyright Notice, then the work may be
Attachment E- Public Domain

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 227 of 323
deemed “Presumably Does Not Contain a Copyright Notice.”
1.4 Contemporaneous Publication Abroad To determine whether a work was first published in a country other than the United States or contemporaneously outside and within the United States, Google shall search its own bibliographic and other records, and other records reasonably available to it (e.g., any online records of the United States Copyright Office or a copy thereof). If Google determines that the work was published in a country other than the United States either (a) prior to the work’s Reviewed Copyright Date or (b) within two years of the work’s Reviewed Copyright Date, then the work may be deemed “Presumably Contemporaneously Published Abroad.”
1.5 Renewal To determine whether a work was renewed with the United States Copyright Office, Google shall search either the United States Copyright Renewal Records or a copy thereof. If such search discloses a renewal record for the work, then the renewal date of such work will be that work’s “Presumed Renewal Date.” If such search does not disclose a renewal record for such work, then such work is “Presumed Not Renewed.”
1.6 Presumed Government Work To determine whether a work was published by the United States Government, at least two people shall review at least the title page (and, if there is a copyright page, the copyright page, if a claim of copyright does not appear on the title page) of the work. If, without communication between two of such reviewers, they each found that those pages indicate that the work was published by the United States Government and do not contain a claim of copyright by a Person other than the United States federal government, then the work is deemed to be a “Presumed Government Work.” If the reviewers did not agree with respect to such publication or such claim, Google shall search its own bibliographic and other records, and other records reasonably available to it. If Google determines that records from more than one source indicate that the work was published by the United States Government, then the work is deemed to be a “Presumed Government Work.”
1.7 Registration and Registration Date To determine whether a work was registered with the United States Copyright Office and when it was registered, Google shall search either the United States Copyright Registration Records or a copy thereof. If such search discloses a registration record for the work then the registration date of such work will be that work’s “Presumed Registration Date.” If such search does not disclose a registration record for such work, then such work is “Presumed Not Registered.”

Attachment E- Public Domain

2

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 228 of 323

2. RULES FOR PRESUMED U.S. PUBLICATIONS
2.1 Copyright Expiration by Copyright Date If (a) a work’s Reviewed Copyright Date is before January 1, 1923 and (b) the work is a Presumed U.S. Publication, then Google may submit such work to the Registry as a Public Domain Book pursuant to Section 3.2(d)(v)(2).
2.2 Lack of Copyright Notice If a work (a) has a Reviewed Copyright Date before March 1, 1989, (b) is a Presumed U.S. Publication, (c) Presumably Does Not Contain a Copyright Notice, (d) is not Presumably Contemporaneously Published Abroad, and (e) is Presumed Not Registered or has a Presumed Registration Date that is not before or within five (5) years following the Reviewed Copyright Date, then Google may submit such work to the Registry as a Public Domain Book pursuant to Section 3.2(d)(v)(2). If a Reviewed Copyright Date is the year 1989 without a specific date, then it is deemed to be not before March 1, 1989.
2.3 Lack of Renewal If a work (a) has a Reviewed Copyright Date that is before January 1, 1964, (b) is a Presumed U.S. Publication, (c) is not Presumably Contemporaneously Published Abroad, and (d) is Presumed Not Renewed, then Google may submit such work to the Registry as a Public Domain Book pursuant to Section 3.2(d)(v)(2).
2.4 Government Works If a work is a Presumed Government Work, then Google may submit such work to the Registry as a Public Domain Book pursuant to Section 3.2(d)(v)(2).
3. RULE FOR PRE-1923 WORKS NOT PRESUMED U.S. PUBLICATIONS
If a work (a) has a Reviewed Copyright Date that is before January 1, 1923, (b) is not a Presumed U.S. Publication, and (c) Presumably Does Not Contain a Copyright Notice, then Google shall search its own bibliographic and other records, and other records reasonably available to it (e.g., any online records of the United States Copyright Office or a copy thereof) to determine if the work was either (i) published in the United States prior to or at the same time as the work’s Reviewed Copyright Date (“U.S. Published Work”), (ii) subsequently republished anywhere with a Copyright Notice, or (iii) subsequently registered with the United States Copyright Office. If Google’s search reveals that the work either (1) is a U.S. Published Work, (2) was republished with a Copyright Notice and the republished work has a Reviewed Copyright Date that is before January 1, 1923, or (3) was never republished or was republished with a Copyright Notice after January 1, 1923 and is reasonably determined by Google to be in the public domain (e.g., by applying section 302 of the Copyright Act), then Google may submit the work to the Registry as a Public Domain Book pursuant to Section 3.2(d)(v)(2).
4. SAFE HARBOR NOTICES TO THE REGISTRY
For each work as to which Google seeks the benefit of the safe harbor in Section 3.2(d)(v)(3) of the Settlement Agreement, Google shall disclose to the Registry (1) the

Attachment E- Public Domain

3

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 229 of 323
title, author and ISBN code (if available) of such work, (2) the facts ascertained and/or conclusions drawn by Google about the work pursuant to Sections 1.1 through 1.7 above (e.g., the work’s Reviewed Copyright Date), (3) the specific rule in Section 2 or Section 3 above upon which Google is relying for its determination that such work is a Public Domain Book and (4) if requested by the Registry, copies of any available supporting documents or records Google relied upon in making its determination, in each case to the extent permitted by Google’s agreements with its Metadata providers.

Attachment E- Public Domain

4

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 230 of 323 ATTACHMENT F

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 231 of 323
Attachment F to Settlement Agreement
PREVIEW USES

No Preview * Anthologies Relevant BISAC codes:

Class. Code DRA002000 FIC003000

Subject Heading Drama / Anthologies (multiple authors) Fiction / Anthologies (multiple authors)

* Poetry Collections Relevant BISAC codes:

Class. Code POE000000 POE007000 POE005010 POE005050 POE001000 POE001000 POE009000 POE010000 POE011000 POE012000 POE005030 POE005020 POE003000 POE013000
JNF042000

Subject Heading Poetry / General Poetry / African Poetry / American / General Poetry / American / African American Poetry / Anthologies Poetry / Anthologies (multiple authors) Poetry / Asian Poetry / Australian & Oceanian Poetry / Canadian Poetry / Caribbean & Latin American Poetry / Continental European * Poetry / English, Irish, Scottish, Welsh * Poetry / Inspirational & Religious Poetry / Middle Eastern Poetry / Nursery Rhymes Poetry / Single Author / General Poetry / Single Author / Other Juvenile Nonfiction / Poetry / General

Attachment F-Preview Uses

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 232 of 323

JNF042010 JNF042020

Juvenile Nonfiction / Poetry / Humorous Juvenile Nonfiction / Poetry / Nursery Rhymes

* Short Stories
Relevant BISAC codes:
Class. Code Subject Heading FIC042050 Fiction / Christian / Short Stories FIC009040 Fiction / Fantasy / Short Stories FIC022050 Fiction / Mystery & Detective / Short Stories FIC027080 Fiction / Romance / Short Stories FIC028040 Fiction / Science Fiction / Short Stories FIC029000 Fiction / Short Stories FIC029000 Fiction / Short Stories (single author) JUV038000 Juvenile Fiction / Short Stories*

* Solutions Manuals
Fixed Preview
* Dictionaries
Relevant BISAC codes:
Class. Code Subject Heading FOR005000 Foreign Language Study / Multi-Language Dictionaries GAM003040 Games / Crosswords / Dictionaries JNF048030 Juvenile Nonfiction / Reference / Dictionaries LAW030000 Law / Dictionaries & Terminology MED020000 Medical / Dictionaries & Terminology REF008000 Reference / Dictionaries REL006670 Religion / Biblical Reference / Dictionaries & Encyclopedias

2
Attachment F-Preview Uses

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 233 of 323

* Drug Reference Guides Relevant BISAC codes:

Class. Code MED023000

Subject Heading Medical / Drug Guides

* Encyclopedias Relevant BISAC codes:

Class. Code JNF048040 REF010000

Subject Heading Juvenile Nonfiction / Reference / Encyclopedias Reference / Encyclopedias

* Price/Buyer's Guides Relevant BISAC codes:

Class. Code TRA001020 REF030000

Subject Heading Transportation / Automotive / Buyer's Guides Reference / Consumer Guides

* Quotations Relevant BISAC codes:

Class. Code REF019000 REL006150

Subject Heading Reference / Quotations Religion / Biblical Reference / Quotations

3
Attachment F-Preview Uses

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 234 of 323

* Test Prep/Certification Guides
Relevant BISAC codes:
Class. Code Subject Heading COM055010 Computers / Certification Guides / A+ COM055000 Computers / Certification Guides / General COM055020 Computers / Certification Guides / MCSE
Juvenile Nonfiction / Study Aids / College Guides STU026000 Study Aids / Study Guides

* Thesauri Relevant BISAC codes:

Class. Code JNF048050 REF022000

Subject Heading Juvenile Nonfiction / Reference / Thesauri Reference / Thesauri

4
Attachment F-Preview Uses

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 235 of 323 ATTACHMENT G

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 236 of 323 Attachment G
to Settlement Agreement APPROVED LIBRARIES The libraries listed on this Attachment G are participants in the Google Library Project as of the Settlement Agreement Date. Columbia University Cornell University Harvard University New York Public Library Princeton University Stanford University University of California University of Michigan University of Texas University of Virginia University of Wisconsin Committee on Institutional Cooperation (CIC) • Indiana University • Michigan State University • Northwestern University • Ohio State University • Penn State University • Purdue University • The University of Chicago • University of Illinois at Chicago • University of Illinois at Urbana-Champaign • The University of Iowa • University of Minnesota
Attachment G-Approved Libraries

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 237 of 323 ATTACHMENT H

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 238 of 323

Attachment H to Settlement Agreement

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------x

The Authors Guild, Inc., Association of American

:

Publishers, Inc., et al.,

:

:

Plaintiffs,

:

:

v.

:

:

Google Inc.,

:

:

Defendant.

:

------------------------------------------------------------------------x

Case No. 05 CV 8136-JES

[PROPOSED] ORDER GRANTING PRELIMINARY SETTLEMENT APPROVAL

This matter is before the Court pursuant to the motion of Plaintiffs in the above-captioned

class action (the “Action”) for preliminary approval of the settlement Plaintiffs reached with

defendant Google Inc. (“Google”). Plaintiffs have moved for an order approving the settlement

of the Action in accordance with the Settlement Agreement between Plaintiffs and Google.

Having read and considered the Settlement Agreement, and based upon familiarity with the files

and proceedings in this matter, the Court finds that:

1. Plaintiffs filed an initial complaint, and subsequent amended complaints, in the

Action alleging, on behalf of themselves and a putative class of others similarly situated, that

defendant violated the United States Copyright Act, 17 U.S.C. §§ 101 et seq.;

2. Defendant has vigorously contested the allegations;

3. The parties have entered into a Settlement Agreement that has been filed with the

Clerk of the United States District Court for the Southern District of New York;

4. The Court has reviewed the Settlement Agreement and determined it to be within

the range of possible approval; and

Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 239 of 323
5. The Court has reviewed the notice provisions of Article XII of the Settlement Agreement, and the forms of notice attached to the Settlement Agreement as Attachments I and J, and the Court has determined that the form, content and manner of dissemination of the notices constitute the best notice practicable under the circumstances.
Accordingly, it is hereby ORDERED as follows: 6. The motion is GRANTED. The Settlement Agreement is hereby preliminarily approved. Unless otherwise specified, all defined terms herein shall have the same meaning as in the Settlement Agreement. 7. The following Settlement Class and two Sub-Classes are provisionally certified for settlement purposes only: Settlement Class All Persons that, as of January 5, 2009, have a Copyright Interest in one or more Books or Inserts. All Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Settlement Class are Google, the members of Google’s Board of Directors and its executive officers. Author Sub-Class Members of the Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Settlement Class who are not members of the Publisher Sub-Class. Publisher Sub-Class Members of the Settlement Class that are (a) companies that publish books, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees. 8. Plaintiffs Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, and Herbert Mitgang are designated as Representative Plaintiffs for the Author Sub-Class. Plaintiffs
2
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 240 of 323
The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc. are designated as Representative Plaintiffs for the Publisher Sub-Class.
9. The Court appoints the following law firms as Class Counsel: the firms of Boni & Zack LLC, Milberg LLP, and Kohn, Swift & Graf, PC for the Author Sub-Class (“Author SubClass Counsel”), and the firm of Debevoise & Plimpton LLP for the Publisher Sub-Class (“Publisher Sub-Class Counsel”). Author Sub-Class Counsel and Publisher Sub-Class Counsel shall be referred to collectively herein as “Class Counsel.”
10. A final settlement/fairness hearing shall be held on __________, 2009, at __:__ (the “Hearing”) before the undersigned in Courtroom 14C, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007. The purpose of the Hearing shall be to determine: (a) whether the terms and conditions of the proposed Settlement Agreement are fair, reasonable, and adequate; (b) whether to certify the Class and the Sub-Classes for purposes of the settlement; and (c) whether the proposed Settlement Agreement should be approved by the Court and judgment entered thereon. At the Hearing, or such adjourned date as the Court deems appropriate, Class Counsel and any interested person shall be heard on the fairness, reasonableness, and adequacy of the terms of the Settlement Agreement and on Author Sub-Class Counsel’s application for an award of attorneys’ fees and reimbursement of expenses as set forth in the Settlement Agreement.
11. The Court preliminarily approves the proposed Settlement Agreement, including the procedures for establishing and administering the settlement funds and procedures for notice,
3
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 241 of 323
opting out, and objection as described therein, as fair, reasonable, and in the best interests of the Settlement Class and the Sub-Classes.
12. The Court reserves the right to adjourn the Hearing or order any adjournment without further notice other than an oral announcement at or prior to the Hearing. The Court also reserves the right to approve the proposed Settlement Agreement at or after the Hearing with or without modification as consented to by the parties to the Settlement Agreement and without further notice to members of the Settlement Class. The Court shall retain jurisdiction to consider all applications arising out of or connected with the proposed Settlement Agreement.
13. The Court approves as to form, content, and method of dissemination of the Notice of Class Action Settlement (“Notice”) and the Summary Notice of Class Action Settlement (the “Summary Notice”) substantially in the forms attached to the Settlement Agreement as Attachments I and J.
14. Before disseminating Notice pursuant to paragraph 16 below, Class Counsel shall submit to the Court for approval as to form and content the Claim Forms to be included with the Notice.
15. The Notice Commencement Date shall be January 5, 2009. The Opt-Out Deadline shall be May 5, 2009.
16. Beginning on January 5, 2009, Class Counsel shall cause the Notice to be forwarded to identifiable Settlement Class members by e-mail, postal mail, postage prepaid, at the last known mailing address, or other means of dissemination.
4
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 242 of 323
17. Beginning on January 12, 2009 or earlier, Class Counsel shall cause to be published the Summary Notice as set forth in the Settlement Agreement and shall otherwise comply with the Notice program as set forth in Article XII of the Settlement Agreement.
18. All notice required to be disseminated under the Notice program shall be disseminated no later than February 27, 2009.
19. At least five business days prior to the Hearing, Class Counsel shall certify compliance with the provisions of paragraphs 16 and 17 of this Order by declaration describing the aforementioned mailings and publications, and shall file with the Court Plaintiffs’ Motion for Final Settlement Approval and supporting papers, and Motion for Approval of Plaintiffs’ Attorneys’ Fees and Reimbursement of Expenses and supporting papers.
20. The form and method of Notice and Summary Notice specified in the Settlement Agreement are hereby approved and determined to be the best notice practicable under the circumstances, and the Court finds that the Notice and Summary Notice comply with the requirements of Rule 23 of the Federal Rules of Civil Procedure and with applicable standards of due process.
21. Members of the Settlement Class and Sub-Classes will be excluded from the settlement only if they comply with the opt-out procedures set forth in the Notice and Settlement Agreement, which procedures are hereby approved as fair and reasonable. Unless they have excluded themselves, members of the Settlement Class and Sub-Classes shall be bound by all determinations and judgments in this case relating to the proposed Settlement, whether favorable or unfavorable, including the dismissal of the Action with prejudice and the release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain
5
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 243 of 323
Library Releasees and Other Library Releasees from liability to members of the Class. Persons who timely exclude themselves from the Class in accordance with the procedures prescribed in the Notice and Settlement Agreement will not be bound by any orders or judgments entered in the Action related to the proposed settlement, and shall not receive any benefits provided for in the proposed Settlement Agreement in the event it is approved by the Court.
22. Persons who are members of the Settlement Class and do not exclude themselves may enter an appearance on their own behalf or through counsel of their own choice at their own expense. If they do not enter an appearance, they will be represented by Class Counsel.
Any member of the Settlement Class who does not exclude himself or herself but objects to: (i) the proposed Settlement Agreement; (ii) certification of the Settlement Class or one or both of the Sub-Classes for purposes of the settlement; (iii) dismissal of the Action or the judgment and releases to be entered with respect thereto; and/or (iv) Author Sub-Class Counsel’s application for attorneys’ fees and reimbursement of expenses in the Action; or who otherwise wishes to be heard, may appear in person or through his or her own attorney at the hearing and present evidence or argument that may be proper and relevant; provided, however, that no Person other than Class Counsel and Google in the Action shall be heard and no papers, briefs, pleadings, or other documents submitted by any such Person shall be received and considered by the Court (unless the Court in its discretion shall thereafter otherwise direct, upon application of such person and for good cause shown), unless, (1) not later than May 5, 2009, such Person has filed a statement of the objection and the grounds for the objection, together with any supporting papers or briefs, with the Court at the address listed below and served copies of such papers by email or first class mail on the attorneys listed below; and (2) if wishing to appear, not later than
6
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 244 of 323
May 5, 2009, such Person has filed a Notice of Intent to Appear, including the Person’s name,
address, telephone number and signature, as well as the name and address of counsel, if any, with
the Court at the address listed below and served copies of such papers by email or first class mail
on the attorneys listed below:
The District Court
Office of the Clerk J. Michael McMahon U.S. District Court for the Southern District of New York 500 Pearl Street New York, New York 10007
Author Sub-Class Counsel
Michael J. Boni, Esquire Joanne Zack, Esquire Joshua D. Snyder, Esquire Boni & Zack LLC 15 Saint Asaphs Road Bala Cynwyd, PA 19004 Bookclaims@bonizack.com
Publisher Sub-Class Counsel
Jeffrey P. Cunard, Esquire Bruce P. Keller, Esquire James J. Pastore, Esquire Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 Bookclaims@debevoise.com
Google Counsel
Daralyn J. Durie, Esquire David J. Silbert, Esquire Joseph C. Gratz, Esquire Keker & Van Nest LLP 710 Sansome Street San Francisco, CA 94111
7
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 245 of 323
Bookclaims@kvn.com 23. Any Settlement Class member who retains an attorney to make objections to the
proposed settlement on behalf of the Settlement Class member or otherwise to represent the Settlement Class member in this litigation does so at the Settlement Class member’s own expense. Any such attorney must file a notice of appearance in this litigation with the Clerk of this Court and serve copies of the notice on the attorneys listed in paragraph 22 above, no later than May 5, 2009. Any objection not timely made and in the manner provided herein shall be deemed waived and forever barred.
24. Pending final determination of whether the proposed Settlement Agreement should be approved, Plaintiffs and all members of the Settlement Class, either individually, directly, representatively, derivatively, or in any other capacity, are barred and enjoined from commencing or prosecuting any action or proceeding asserting any claims whatever on behalf of themselves or the Settlement Class against Google that were brought or could have been brought in the Second Amended Class Action Complaint, and that relate to or arise out of the claims as described in that complaint.
25. If the Court does not grant final approval of the Settlement Agreement, or if the settlement does not become effective for any reason whatever, the Settlement Agreement (including any modification thereof made with the consent of the parties as provided therein), any Class certification herein and any actions taken or to be taken in connection therewith (including this Order and any judgment entered herein) shall be terminated and shall become void and have no further force and effect, except as provided in the Settlement Agreement.
8
Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 246 of 323
26. The Settlement Agreement and any proceedings taken pursuant thereto are not, and should not in any event be: (a) offered or received as evidence of a presumption, concession or admission on the part of any of Plaintiffs, Google, Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries, Other Libraries, any member of the Settlement Class, or any other person; or (b) offered or received as evidence of a presumption, concession or admission by any person of any liability, fault, wrongdoing or other dereliction of duty.
27. The Court reserves jurisdiction over the subject matter and as to each party to the Settlement Agreement with respect to the interpretation, effectuation, and implementation of the Settlement Agreement in accordance with the terms thereof for all purposes, including enforcement of any of the terms thereof at the instance of any party and resolution of any disputes that may arise.
DATED this ____________ day of ____________, 2008.
____________________________________ Honorable John E. Sprizzo, United States District Judge
9 Attachment H-[Proposed] Order Granting Preliminary Settlement Approval

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 247 of 323 ATTACHMENT I

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 248 of 323
Attachment I to Settlement Agreement

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
If You Are A Book Author, Book Publisher Or Other Person Who Owns A Copyright In Books
Or Other Writings,

Your Rights May Be Affected By A Class Action Settlement Regarding Google’s Digitization Of Books
And Other Writings.

Attention Authors And Publishers Outside The United States:
The Settlement May Affect Your Rights As Well. Please Read This Notice Carefully.

•

A class action lawsuit claims that Google violated the copyrights of

authors, publishers and other owners of U.S. copyrights in books and other

writings by digitizing (scanning) them, creating an electronic database of

books, and displaying short excerpts without the copyright owners’

permission.

•

A proposed settlement of the lawsuit (referred to in this Notice as the

“Settlement”) has been reached on behalf of a class of all owners of U.S.

copyrights in books and in writings included in books and other works.

(Please see Question 6 below for a description of “Books,” as this Notice

uses that term.) There are two sub-classes:

•

The “Author Sub-Class” (authors of Books and other writings,

their heirs, successors and assigns, and all other Settlement Class

members who are not members of the Publisher Sub-Class), and

•

The “Publisher Sub-Class” (publishers of Books and periodicals

and their successors and assigns)

•

The Settlement benefits to the class include:

•

63% of the revenues earned from Google’s sale of subscriptions to

an electronic books database, sale of online access to books,

advertising revenues, and other commercial uses.

•

US $34.5 million paid by Google to establish and maintain a Book

Rights Registry (“Registry”) to collect revenues from Google and

distribute those revenues to copyright owners.

Attachment I-Notice of Class Action Settlement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 249 of 323 • The right of copyright owners to determine whether and to what extent Google may use their works. • US $45 million paid by Google to copyright owners whose works Google has digitized without permission as of May 5, 2009.
Your Rights And Options – And The Deadlines To Exercise Them –
Are Explained In This Notice
2
Attachment I-Notice of Class Action Settlement

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 250 of 323

WHAT THIS NOTICE CONTAINS

BASIC INFORMATION

4

1. Why did I get this Notice? .................................................................................4

2. What is the lawsuit about? .................................................................................4

3. What is a class action? .......................................................................................4

4. Why is there a Settlement? ................................................................................5

5. Who is a Class Member? ...................................................................................5

6. What are “Books” and “Inserts” as used in the Settlement and this

Notice? ...............................................................................................................8

7. Who are the Participating Libraries? ...............................................................10

BENEFITS OF THE SETTLEMENT

11

8. Overview of the Settlement Benefits ...............................................................11

9. What are Rightsholders’ rights regarding their Books and Inserts? ................13

10. What are Authors’ and Publishers’ rights under the Author-Publisher

Procedures? ......................................................................................................26

REMAINING IN THE CLASS

31

11. What happens if I do nothing? .........................................................................31

12. What entities am I releasing?...........................................................................31

13. If I remain in the Class, what claims am I specifically giving up?..................31

OPTING OUT OF THE SETTLEMENT CLASS

33

14. What do I do if I don’t want to be in the Settlement?......................................33

15. How do I opt out of the Class?.........................................................................33

OBJECTING TO OR COMMENTING ON THE SETTLEMENT

34

16. May I object to or comment on the Settlement? ..............................................34

17. What is the difference between objecting to the Settlement and opting

out of the Settlement? ......................................................................................35

THE LAWYERS REPRESENTING YOU

35

18. Do I have a lawyer representing my interests in these cases? .........................35

19. How will the lawyers be paid?.........................................................................35

20. Should I get my own lawyer? ..........................................................................36

THE COURT’S FINAL APPROVAL HEARING

36

21. When and where will the Court decide whether to grant final approval

of the Settlement? ............................................................................................36

22. Must I attend the Fairness Hearing? ................................................................36

23. May I speak at the Fairness Hearing? ..............................................................37

GETTING MORE INFORMATION

37

24. Where do I get more information?...................................................................37

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This Notice is only a summary of the Settlement Agreement and of your rights. You are encouraged to review the complete Settlement Agreement
carefully. It is available at [LINK] or from the Settlement Administrator. (See Question 24 for the Settlement Administrator’s contact information).

BASIC INFORMATION

1. Why did I get this Notice?

You received this Notice because the Settlement may affect you. You may be a Book author, publisher, or other person who owns a U.S. copyright interest in Books, or in other writings that are included in Books, public domain works or government works (called “Inserts” in the Settlement), that Google is digitizing without permission.

This Notice explains:

•

What the lawsuit and the Settlement are about.

•

Who is affected by the Settlement.

•

Who represents the Sub-Classes.

•

Your legal rights.

•

How and by when you need to act.

2. What is the lawsuit about?

This lawsuit involves Google’s highly publicized Google Library Project (“GLP”). In 2004, Google announced that it had entered into agreements with several libraries to digitize Books and other writings in those libraries’ collections. Google has already digitized over seven million books, including millions of Books that are still in copyright in the United States. Google users can search Google’s “digital library” and view “snippets,” meaning several lines of text, from Books.
GLP is one way in which Google is digitizing Books for its “Google Book Search” program (see http://books.google.com). The Google Partner Program (under which Google gets permission from publishers and authors to use their copyrighted works, see https://books.google.com/partner) also contributes Books to Google Book Search. Although the Partner Program is not the subject of this Settlement, this Settlement might affect members of the Partner Program.
3. What is a class action?

In a class action lawsuit, one or more “class representatives” sue on behalf of others who have similar claims. All such persons are, together, a “class” and each is a “class member.” The Court must determine if it will allow the lawsuit to proceed as a

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class action. If it does, the Settlement will affect everyone who is a member of the class. To find out if you are a member of the class in this Settlement, see Question 5 below.
In this lawsuit, the persons who sued (“Plaintiffs”) and Google Inc. (“Google,” the “defendant”) have agreed to the Settlement. As part of the Settlement, several libraries that have permitted or will permit Google to digitize Books and other works in their collections may also participate in the Settlement (“Participating Libraries”). The Court has preliminarily approved the Settlement for the Class and the two Sub-Classes of affected persons – the Author Sub-Class and the Publisher Sub-Class.
Five publishers have brought a separate lawsuit against Google involving GLP that raises issues identical to those in this class action lawsuit. The publishers’ lawsuit will be dismissed when the Settlement of this lawsuit becomes final (the “Effective Date”). For more information about the publishers’ lawsuit, click here or go to Question 19 below.
4. Why is there a Settlement?
After lengthy investigations by the Plaintiffs and Google, including the review of millions of pages of documents produced by the parties, and after more than two years of settlement negotiations, the parties agreed to the Settlement.
A settlement is an agreement between a plaintiff and a defendant to resolve a lawsuit. Settlements conclude litigation without the court or a jury ruling in favor of the plaintiff or the defendant. A settlement allows the parties to avoid the cost and risk of a trial. In the settlement of a class action lawsuit, the class representatives and their attorneys ask the court to approve the settlement as fair, reasonable and adequate. In this case, if the Court approves the Settlement, then Google will no longer be legally responsible for the claims made in this lawsuit.
Google denies any wrongdoing or liability, and denies that any member of the class is entitled to compensation for damages. The Court has not ruled on any of the parties’ claims.
5. Who is a Class Member?
The class consists of all persons (and their heirs, successors and assigns) who, as of January 5, 2009 (the Notice Commencement Date), own a “U.S. copyright interest” in one or more Books or Inserts that is “implicated by a use” authorized by the Settlement (the “Class”) (See Question 9 below for a description of such uses).
You own a “U.S. copyright interest” if you own, or have an exclusive license in, a copyright protected by United States copyright law. For example, if you are an author, you own the copyright in your Book (unless you have completely assigned all of your copyright interests to another person or unless you wrote the Book as a “work for hire”). You also own a U.S. copyright in a Book if you have the exclusive right to publish that Book in the United States or if you have the legal right to sue another for infringing your
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rights in the Book. Several persons may have U.S. copyright interests in the same Book, such as co-authors, an author and a publisher, and heirs of an author.

ATTENTION AUTHORS AND PUBLISHERS OUTSIDE THE UNITED STATES: If you are a rightsholder who is a national of, or is otherwise located in, a country other than the United States, you are likely to own a U.S. copyright interest if (a) your Book was published in the United States, or (b) your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention, or (c) your country had copyright relations with the United States at the time of the Book’s publication. You should assume that you own a U.S. copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States. For a list of countries with which the United States has copyright relations, please visit http://www.copyright.gov/circs/circ38a.html or request it from the Settlement Administrator. If you own a copyright in a Book or Insert published in a country outside the United States, you are advised to seek advice from an attorney or a Reproduction Rights Organization to determine whether your interests would be better served by participating in this Settlement or opting out of the Settlement. You may also contact the appropriate telephone numbers on the list attached to this Notice for further advice.

ATTENTION HEIRS OF AUTHORS: Because the Settlement involves the digitization and use of Books published many decades ago, it is expected that a sizable portion of the Settlement Class will consist of authors’ heirs, successors and assigns. Wherever this Notice refers to “authors,” it is referring as well to all of their heirs, successors and assigns who hold a U.S. copyright interest in the authors’ works.

All Class members should go to [LINK] to access a searchable database of Books that are covered by this Settlement. This database also lists government works and public domain books that Google has digitized which may contain Inserts. The list attempts to include all in-copyright Books published by January 5, 2009. There will, however, be some Books covered by the Settlement that are not on the list. Therefore, even if your Book is not on the list, so long as you own a U.S. copyright interest in a Book published by January 5, 2009, you should consider yourself a Class member.

•

“Books” and “Inserts” are important terms that are defined in Question 6

below.

•

A U.S. copyright interest that is “implicated by a use” covered under the

Settlement is a copyright interest in the rights to reproduce and display

Books and Inserts in Display Uses, Non-Display Uses and the permitted

library uses described at Questions 9(F), 9(G) and 9(I) below and in the

Settlement Agreement in Article VII. “Display Uses” and “Non-Display

Uses” are defined in Questions 9(F) and 9(G) below.

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The Class is divided into two Sub-Classes: the Author Sub-Class and the Publisher Sub-Class.
Author Sub-Class
The Author Sub-Class consists of members of the Class who are authors and their heirs, successors and assigns, as well as all other members of the Class who are neither publishing companies nor their successors or assigns.
The following individuals are serving as the Author Sub-Class Representatives: Herbert Mitgang, Betty Miles, Daniel Hoffman, Paul Dickson and Joseph Goulden. The interests of the Author Sub-Class are also represented by The Authors Guild (www.authorsguild.org). All Author Sub-Class Representative Plaintiffs and The Authors Guild endorse the Settlement and recommend that other members of the Author Sub-Class participate in the Settlement.
Publisher Sub-Class
The Publisher Sub-Class consists of members of the Class that are Book publishing companies or are periodical (e.g., newspapers, magazines, journals) publishing companies that own a U.S. copyright interest in an Insert or have published a Book, and their respective successors and assigns.
The following entities are serving as the Publisher Sub-Class Representatives: The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc. The interests of the Publisher SubClass are also represented by the Association of American Publishers (www.publishers.org). All Publisher Sub-Class Representative Plaintiffs and the Association of American Publishers endorse the Settlement and recommend that other members of the Publisher Sub-Class participate in the Settlement.
Rightsholders
Members of the Author Sub-Class and Publisher Sub-Class who do not timely and properly opt out of the Settlement (see Question 15 below) are referred to in the Settlement and in this Notice as “Rightsholders.”
Excluded from the Class
Photographs, graphic designs, artworks, illustrations (other than illustrations in children’s Books) and other images and works of visual art that are included in Books are not considered Inserts and are not covered by the Settlement, UNLESS the U.S. copyright interest in those works is held by the Rightsholder of the Book. Therefore, to the extent that persons only own copyrights in such materials, they are not members of the Class. The Settlement neither authorizes nor prohibits Google from displaying those materials through the Settlement, and no claims are released concerning any use of those materials.
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Author-Publisher Procedures

Counsel for the Author Sub-Class and Counsel for the Publisher Sub-Class have established Author-Publisher Procedures, which are an important part of the Settlement. Among other things, the Author-Publisher Procedures set forth the authors’ and the publishers’ respective rights concerning Google’s use of – and who is paid for – in-print and out-of-print Books under the Settlement. The Author-Publisher Procedures are summarized in Question 10 below, and you are also encouraged to review the AuthorPublisher Procedures in their entirety at [LINK] or from the Settlement Administrator.

6. What are “Books” and “Inserts” as used in the Settlement and this Notice?

Books

For purposes of the Settlement, a “Book” is a written or printed work on sheets of paper bound together in hard copy form that:

•

Prior to January 5, 2009, was published or distributed to the public or

made available for public access under the authorization of the work’s

U.S. copyright owner(s); and

• Has been registered with the U.S. Copyright Office as of January 5, 2009, UNLESS the work was first published outside the United States, in which case such registration is not required; and

•

As of January 5, 2009, is subject to a U.S. copyright interest (either

through ownership, joint ownership, or an exclusive license) implicated by

a use authorized by the Settlement. See Question 9 for such uses.

EXCLUDED from the definition of “Book” are the following:

• • •
• •
Inserts

Periodicals (e.g., newspapers, magazines or journals). See Section 1.102 of the Settlement Agreement for a full definition of “Periodicals.”
Personal papers (e.g., unpublished diaries or bundles of notes or letters).
Sheet music and other works that are used primarily for the playing of music. See Section 1.16 of the Settlement Agreement for a more detailed description of these works.
Public domain works, meaning works that are in the public domain under U. S. copyright law.
Government works, meaning written works that are not subject to copyright because they are authored by the U.S. government or that are subject to equivalent treatment under any state’s law, as defined in Section 1.64 of the Settlement Agreement.

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For purposes of this Settlement, an “Insert” must:

•

Consist either of (1) text, such as forewords, afterwords, prologues,

epilogues, poems, quotations, letters, textual excerpts from other Books,

periodicals or other works, or song lyrics; or (2) tables, charts, graphs,

musical notation (i.e., notes on a staff or tablature), or children’s Book

illustrations; and

•

Be contained in a Book, government work or a book that is in the public

domain; and

•

Be protected by a U.S. copyright, where the U.S copyright interest in the

Insert is owned or held by someone other than a Rightsholder of the

Book’s “Principal Work.” “Principal Work” is further defined in Question

8(C) below. For example, if you own rights in a poem that is contained in

a Book for which you also hold a U.S. copyright interest, then your poem,

as it appears in your Book, is not an Insert; however, it would be an Insert

if the poem is contained in a Book for which someone else holds the U.S.

copyright interest; and

•

Be registered, either alone or as part of another work, with the U.S.

Copyright Office as of January 5, 2009, UNLESS the Insert or work was

first published outside the United States, in which case such registration is

not required.

EXCLUDED from the definition of “Insert” are

•

Pictorial works, such as photographs, illustrations (other than children’s

Book illustrations), maps and paintings.

•

Works that are in the public domain.

For purposes of receiving payments for the use of Inserts, the Settlement identifies two types of Inserts:

•

“Entire Insert,” which is an Insert that is an entire work, e.g., forewords,

afterwords, introductions, entire works included in anthologies, entire

poems, entire short stories, the entire lyrics of a song, and entire essays.

•

“Partial Insert,” which is any other type of Insert. Partial Inserts include

excerpts from a work (e.g., excerpts from a Book or magazine article,

quotations, stanzas from poems or portions of a song’s lyrics).

To determine whether your work is or may be included in the Settlement as an Insert, go to [LINK], contact the Settlement Administrator, or call the appropriate number at the end of this Notice (Appendix A).

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7. Who are the Participating Libraries?

The Settlement Agreement identifies several categories of Participating Libraries based on their level of participation in the Settlement: Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries and Other Libraries. Please click here or see Questions 12 and 13, below, or Article VII of the Settlement Agreement for further information regarding the rights, obligations and releases of claims for these libraries. Please click here or contact the Settlement Administrator for the form of the agreements between the Registry and the Fully Participating Libraries, the Cooperating Libraries and the Public Domain Libraries.

Fully Participating Libraries are libraries that are allowing Google to digitize Books in their collections and to which Google is providing a “Library Digital Copy” or “LDC” of those Books. The Settlement Agreement provides that Fully Participating Libraries will be able to make certain uses of their LDCs. To include as many Books as possible in GLP, Google will attempt to expand the list of Participating Libraries, including by adding libraries that are:

•

Cooperating Libraries. These libraries receive the same participatory

rights and obligations under the Settlement Agreement as a Fully

Participating Library, except that they do not receive or have access to a

Library Digital Copy, and they agree to delete any digital copies of Books

received from Google.

•

Public Domain Libraries. These libraries agree to provide only public

domain books to Google for digitization, agree to delete any digital copies

of Books received from Google, and do not receive or have access to a

Library Digital Copy.

•

Other Libraries. These libraries agree to provide Books to Google, but do

not agree to become a Fully Participating Library, a Cooperating Library

or a Public Domain Library. Some of these libraries may have received,

or will receive, digital copies of Books from Google. No claims are

released with respect to any uses of digital copies by Other Libraries.

•

Please click here or contact the Settlement Administrator for a list of the

libraries that Plaintiffs currently have authorized to become Fully

Participating Libraries and Cooperating Libraries.

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BENEFITS OF THE SETTLEMENT
8. Overview of the Settlement Benefits
Key provisions of the Settlement Agreement are summarized below. You are encouraged to review the entire Settlement Agreement at [LINK]. You can download a copy of the Settlement Agreement from that website or you
may request a written copy at [address] or by calling the appropriate number at the end of this Notice (Appendix A).
A. Google’s Use of and Payment for Books
Plaintiffs view the Settlement as an excellent opportunity to breathe new commercial life into potentially tens of millions of out-of-print Books, and to provide an innovative marketing tool for authors and publishers of in-print Books. Under the Settlement, Google is authorized to 1) sell to institutions subscriptions to an electronic Books database, 2) sell online access to individual Books, 3) sell advertising on pages from Books, and 4) make other uses, all as further described under “Access Uses” in Question 9(F)(1) below. Google will pay Rightsholders, through the Book Rights Registry (the “Registry”), 63% of all revenues received from these uses. The Registry will distribute those revenues to Rightsholders in accordance with the Plan of Allocation and the Author-Publisher Procedures, which are described in Questions 9(K) and 10 below.
Rightsholders can exclude their Books from some or all of these uses, as described in Question 9 below. Rightsholders can also remove their Books altogether from the Books database (if already digitized) or direct Google not to digitize their Books so long as the request is made by no later than April 5, 2011.
B. The Book Rights Registry
The Settlement establishes a not-for-profit Book Rights Registry that will maintain a database of Rightsholders, collect their contact information and information regarding their requests with respect to uses of Books and Inserts, and identify, locate and coordinate payments to Rightsholders. The Registry will represent the interests of the Rightsholders, both in connection with the Settlement as well as in other commercial arrangements, including with companies other than Google (subject to the express approval of the Rightsholders of the Books involved in such other commercial arrangements).
To fund the establishment and initial operations of the Registry, Google has agreed to pay US $34.5 million. A portion of that payment will be used for the costs of notice to the Class (including the distribution of this Notice), and for claims administration until the Registry is fully operational.
All funds received by the Registry will be for the direct or indirect benefit of the Rightsholders. After the funding of its initial operations by Google’s payment, the
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Registry will be funded by taking an administrative fee as a percentage of revenues received from Google (estimated to be 10-20%).

The Registry will be jointly managed by a Board comprising an equal number of representatives of the Author Sub-Class and Publisher Sub-Class – at least four author directors and at least four publisher directors. All decisions of the Board will require a majority of the directors, with such majority to include at least one author director and one publisher director. Certain matters will require super-majority votes of the Board.

C. Payment For Books Already Digitized

Google has agreed to pay a minimum of US $45 million to make cash payments for all of the Books and Inserts that Google will have digitized as of May 5, 2009 (i.e., the Opt-Out Deadline) without Rightsholder authorization (“Cash Payment”). Google will make a Cash Payment of at least US $60 per Principal Work, US $15 per Entire Insert, and US $5 per Partial Insert for which at least one Rightsholder has registered a valid claim by January 5, 2010. Only one Cash Payment will be made for the same content that Google digitized, regardless of the number of Books or Inserts containing the same content that Google will have digitized. For example, only one Cash Payment will be made for the hard cover and soft cover editions of a Book, even if Google digitized both of them separately, and only one Cash Payment will be made for several digitizations of the same Book or for content that is contained, as Inserts, in multiple Books. Also, only one US $60 Cash Payment will be made for content that appears both as a Book and also as an Insert in another Book (e.g., because a portion of the first Book was quoted in the second Book). Each Book contains only a single Principal Work. For example, a Book of the novel The Old Man and the Sea might contain an introduction, footnotes and an afterword. The novel itself would be that Book’s Principal Work; each of the other materials would be an Insert (if the U.S. copyright interest in those other materials is held by someone other than the Rightsholder of the Principal Work). Similarly, a Book could contain several short stories from a variety of authors (e.g., the Best Short Stories of 2008). The Book’s Principal Work would be the entire collective work (the collection of short stories), and each separate short story (as well as any introductory essay) would be considered an Insert (if the U.S. copyright interest in such story is held by a Rightsholder other than the Rightsholder of the Principal Work). See Section 1.111 of the Settlement Agreement for a full definition of “Principal Work.”

•

Depending on the number of Principal Works and Inserts claimed by

Rightsholders, if the total amount distributed to all such Rightsholders is

less than US $45 million, the Registry will distribute the balance to such

Rightsholders up to a maximum of US $300 per Principal Work, US $75

per Entire Insert, and US $25 per Partial Insert. Any remaining funds

thereafter will be paid under the Plan of Allocation.

•

If more than US $45 million is required to pay all of the eligible claims for

Cash Payments, then Google will pay the additional funds necessary to

make all such Cash Payments.

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Plaintiffs believe that Rightsholders of Books and Inserts that Google has or will have digitized before May 5, 2009 without authorization are entitled to Cash Payments because they have an additional claim that other Rightsholders do not have, i.e., a claim for copyright infringement for which monetary relief is being sought in this lawsuit. Under the Settlement, other Rightsholders will be able to direct Google not to digitize their Books, but Rightsholders whose Books and Inserts are already digitized had no such opportunity. Plaintiffs believe that the Cash Payments are fair and reasonable consideration for those Rightsholders’ release of claims for monetary relief for Google’s unauthorized digitization.
To claim a cash payment for already digitized books, you must (1) check the “list of already digitized books” at [LINK] after May 5, 2009 to determine whether your book was digitized by Google before that date; and (2) complete the “cash payment-books” form at [link] or available from the settlement administrator no later than January 5, 2010.
To claim a cash payment for already digitized inserts, you must complete the “cash payment-inserts” form at [LINK] or available from the settlement administrator no later than January 5, 2010.
D. Hosted Version of Book for Rightsholders
At the Rightsholder’s request, Google will provide a hosted version of the Rightsholder’s Book(s) for use on the Rightsholder’s website. See Section 3.11 of the Settlement Agreement for further details.
E. Timing of Settlement Benefits
It will take considerable time to implement the commercial uses authorized under the Settlement, implement the elections made by Rightsholders for their Books and Inserts, and make Cash Payments. The commercial uses and other settlement benefits described in this Notice will not occur until after the Effective Date, and further time will be required after that time in order to establish the Registry and clear rights so that the appropriate Rightsholders receive their due and owing benefits. Please be patient, and visit the Settlement Website at www.googlebooksettlement.com regularly for updates.
9. What are Rightsholders’ rights regarding their Books and Inserts?
Under GLP, Google has been digitizing – and will continue to digitize – Books from Participating Libraries and other sources. Google is developing a searchable electronic database of many millions of Books (as well as public domain books and government works). The Settlement provides that Google will sell subscriptions to that database, and online access to individual Books to consumers. In addition, Google will earn revenues from advertising on any web pages dedicated to a single Book. As described in Question 8(A) above, all those revenues will be split 63/37 between the Rightsholders and Google. The following is a summary of Google’s authorization to use
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Books and Inserts and of Rightsholders’ rights with respect to all such uses. The complete description of all rights and obligations is set out in the Settlement Agreement, at [LINK] or available from the Settlement Administrator.

A. Classification of Books as Commercially Available and “In-Print” or “Out-of-Print”

The Settlement provides that all Books will be initially classified as “Commercially Available” and not “Commercially Available” as of January 5, 2009. Google will initially classify a Book as “Commercially Available” if Google determines that the Rightsholder, or the Rightsholder’s designated agent (e.g., a literary agent or publisher), is currently (i.e., at the time Google makes the initial determination) offering the Book for sale through one or more then-customary channels of trade in the United States.

This classification has two purposes:

•

Google will have the right to make Display Uses of all Books that are

classified as not Commercially Available. The Rightsholder of a Book,

however, has the right to remove the Book from GLP (by request received

prior to April 5, 2011) or exclude it at any time from some or all Display

Uses. Google does not have the right to make any Display Uses of Books

that are classified as Commercially Available unless the Rightsholder

authorizes Google to include the Book in one or more Display Uses; the

Rightsholder also has the right to remove the Book from all uses by

Google.

•

Under the Author-Publisher Procedures, a Book classified as

Commercially Available is presumptively classified as “in-print” and a

Book classified as not Commercially Available is presumptively classified

as “out-of-print.” Classification of a Book as in-print or out-of-print has

certain important consequences, as described below. The use in this

Notice of the terms “in-print” and “out-of-print” is only for

convenience, only for purposes of the Settlement and for Google’s use

of and payment for Books, and does not affect how those terms are

used in the industry or in author-publisher contracts. Potentially, two

Rightsholders with U.S. copyright interests in the same Book (e.g., both

the author and the publisher) may not agree whether a Book is, for

purposes of this Settlement, “in-print” or “out-of-print.” The Author-

Publisher Procedures set forth a process for resolving those disputes. See

Question 10 below for further details concerning the Author-Publisher

Procedures.

Rightsholders and the Registry will have the right to challenge Google’s initial classification of a Book as Commercially Available or not. Any disputes with Google over the proper classification of a Book will be resolved through the Settlement’s dispute resolution process, described in Question 9(M) below.
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To find out whether or not your Book has initially been determined to be Commercially Available, go to [LINK] or contact the Settlement Administrator.
B. Out-Of-Print Books
The Settlement authorizes Google to make Display Uses and Non-Display Uses of each out-of-print Book for the term of the U.S. copyright for that Book, without further action or direction by the Book’s Rightsholder, UNLESS the Rightsholder of the Book directs Google not to do so. A Rightsholder who so directs Google can later authorize Google to make such uses of some or all of the Book. Display Uses are described in Question 9(F) below and Non-Display Uses are described in Question 9(G) below.
If a Rightsholder excludes a Book that is not Commercially Available from the institutional subscription use (see Question 9(F)(1)(a) below), then that Book will also be excluded from sales to individual consumers. In addition, a Rightsholder who excludes a Book from an institutional subscription use is not eligible to receive an Inclusion Fee (see Question 9(K) below for details).
The Author-Publisher Procedures provide that the author or, for good reason, the publisher of an out-of-print Book (other than a reverted Book, an “author-controlled” Book or a work-for-hire Book) may exclude a Book from one or more Display Uses. See Question 10 below for a summary of the Author-Publisher Procedures.
If you want to participate in the Settlement but exclude your out-of-print Books from one or more Display Uses, click here [LINK] or contact the Settlement Administrator. There is no time limit for you to exclude your Books from Display Uses, and you can change any exclusion decision at any time by clicking here [LINK] or by contacting the Registry at www.xxxx.com, or at [address].
C. In-Print Books
The Settlement provides that Google may not make any Display Uses of any inprint Book UNLESS the Rightsholders of that Book authorize Google to include the Book in one or more such uses. If the Rightsholders decide to authorize Display Uses, the Book will be subject to the economic terms provided under the Settlement; however, a Rightsholder may be able to negotiate different terms with Google through the Partner Program. After a Rightsholder of an in-print Book authorizes Google to make a Display Use of that Book, the Rightsholder can change instructions at any time by clicking here [LINK] or by contacting the Registry at www.xxxxx.com, or at [address]. Under the Settlement, Google has the right to make Non-Display Uses of an in-print Book for the term of the U.S. copyright for that Book, UNLESS the Rightsholder timely removes the Book. For information on removing a Book, see Question 9(D) below. For information on Non-Display Uses, see Question 9(G) below.
The Author-Publisher Procedures provide that both the author and publisher of an in-print Book (other than a work-for-hire Book) must agree to authorize any Display Uses. See Question 10 below for a summary of the Author-Publisher Procedures.
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To authorize one or more Display Uses, go to [LINK].
D. Complete Removal of Books
Rightsholders have the right to remove their Books, that is, to require that those Books be deleted from all servers or sources from which Google or the Fully Participating Libraries could make any uses. Removal requests must be received by April 5, 2011.
Note that Fully Participating Libraries may make certain uses of Books included in their Library Digital Copy (see Question 9(I) below). Rightsholder cannot exclude their Books from all such uses unless they timely remove their Books altogether.
A removal request will not require Google or a Fully Participating Library to destroy back-up tapes or other back-up storage media that may contain copies of otherwise removed Books. The only way a Rightsholder can preserve rights to bring claims against Google and the Fully Participating Libraries for maintaining removed Books on back-up tapes or other back-up storage media is to opt out of the Settlement. Question 15 below informs you how to opt out of the Settlement.
Even if a Rightsholder removes a Book, it may be possible to contact Google subsequently to attempt to negotiate a separate deal for inclusion of the Book in the Partner Program.
If you want to participate in the Settlement but also want your Books removed, you must fill out the “Removal Form,” at [LINK] or available from the Settlement Administrator, by April 5, 2011. Thereafter, Google will honor your request only if a Book has not been digitized as of the date of the request.
E. Inserts
Rightsholders of Inserts have the right to exclude Inserts from all – but not less than all – Display Uses. This right is limited to the Insert itself and not any other portion of the Book, government work or public domain book that contains the Insert.
If you own an exclusive U.S. copyright interest in an Insert, go to the “Insert Form” at [LINK] or available from the Settlement Administrator and provide the requested information concerning in what Book(s), government works or public domain books your Inserts are contained. If you are unsure where your Inserts might be located, go to [LINK] or contact the Settlement Administrator. That site will ask you to identify your copyrighted content, and to search Google’s database to help you determine if your content is an Insert.
If the Books, government works or public domain books containing your Insert have not yet been digitized by Google, then Google will search for your content until it completes digitizing Books for GLP. If Google finds what appears to be your content in a Book, government work or public domain book, it will notify you. You will then be asked to confirm that the content contained in the Book, government work or public
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domain book is an Insert. After your confirmation, you will (1) be eligible to receive an Inclusion Fee under the Plan of Allocation (see Question 9(K) below); and (2) have the right to exclude your Insert(s) from Display Uses.
You will be eligible for an Inclusion Fee if you do not exclude your Insert from Display Uses and if you otherwise satisfy the eligibility criteria on the claim form. If you wish to exclude your Insert from Display Uses after having received your Inclusion Fee, you will have to first return the fee.
If you want to participate in the Settlement but exclude your Inserts from Display Uses, click here [LINK] or contact the Settlement Administrator. There is no time limit for you to exclude your Inserts from all – but not less than all – Display Uses of your Inserts, and you can change any exclusion decision at any time at [LINK], or at [address].
The Rightsholder of the Book containing your Insert and, in some cases, Google, will have the right to challenge your exclusion request if they believe that they have the legal or contractual right to display your Insert as part of a Book. Any disputes over the exclusion of an Insert from a Book will be resolved through the Settlement’s dispute resolution process, described in Question 9(M) below. With respect to Inserts in government works and public domain books, Google may reject your request to exclude your Insert from the government work or public domain book. If that happens, you will have the right either to (1) sue Google or (2) arbitrate against Google pursuant to the Settlement’s dispute resolution process.
Under the Settlement, Google has the right to make Non-Display Uses of Inserts for the term of the U.S. copyright for those Inserts. Insert Rightsholders are not able to “remove” an Insert. The only way you can preserve your right to bring claims against Google and the Fully Participating Libraries for Non-Display Uses and for retaining your Inserts on back-up tapes or other back-up storage media is to opt out of the Settlement altogether. Question 15 below informs you how to opt out of the Settlement.
F. Display Uses
Subject to Rightsholders’ exclusion and removal rights discussed above, the Settlement authorizes Google to make the following Display Uses of all out-of-print Books and, upon the express authorization of Rightsholders, in-print Books:
(1) Access Uses: Access uses are viewing and annotating the entire Book, and printing and copying/pasting portions of the Book, subject to certain page number limitations. These are full text uses of Books that Google is or may be authorized to make:
(a) Institutional Subscriptions: Educational, government and corporate institutions will be able to purchase time-limited subscriptions (e.g., by semester or by year) for their
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students or employees to access the full contents of the institutional subscription database. Google may also offer subscriptions to discipline-based collections. The pricing of the institutional subscription may vary over time, including to reflect increases in the size of the institutional subscription database. For information on how subscriptions will be priced, see Section 4.1 of the Settlement Agreement.
(b) Consumer Purchases: Individual users will be able to purchase the right to access Books online. Rightsholders will have two options for setting the sale price of their Books: they can set the price themselves or they can allow Google to set the price based on a multi-factor formula that is designed to maximize revenues for the sale of the Book (the “Settlement Controlled Price”). For more information on the methodology used to set the “Settlement Controlled Price,” go to [LINK] or contact the Settlement Administrator.
(c) Public Access at Libraries and Elsewhere: Google will provide, on request, “Public Access” licenses for free through a dedicated computer terminal at each public library building and through an agreed number of dedicated computer terminals at non-profit higher educational institutions located in the United States. The Public Access service will provide the same access to Books as Google offers in the institutional subscriptions, except that users will not be able to copy/paste or annotate any portions of a Book. At public libraries that are able to charge for printing, and at all libraries at higher educational institutions, users will be able to print from the Public Access terminals for a per-page fee. Upon Registry approval, Public Access terminals may be made available for a viewing and per-page printing fee at commercial businesses such as copy centers, which will share those fees with Google and the Rightsholders. Revenues from the Public Access service will be based on a per-page charge for printing, with Google collecting the revenues from libraries or copy centers and sending 63% of those revenues to the Registry. Google will provide data tracking the usage of the Public Access service to the Registry, the libraries and other places where the service is available.
(d) Other Potential Commercial Uses: In the future, Google and the Registry may agree to develop other Access Uses, including consumer subscriptions (similar in concept to the 18
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institutional subscriptions); print on demand Books; custom publishing (per-page pricing of content for course packets or other forms of custom publishing for the educational and professional markets); PDF downloads (consumers would be able to download a PDF version of a Book); and summaries, abstracts or compilations of Books. Rightsholders will be notified, either directly or through the Registry’s website, of all new commercial uses that Google is authorized to make, and will have an opportunity at any time to exclude their Books from any or all of these uses.
(2) Preview Use: In response to a user’s search, Google may allow the user to view up to 20% of a Book (no more than five adjacent pages) before making a purchase decision, but not to copy/paste, annotate or print any pages from the Book (“Standard Preview”). For Books of fiction, Google will block the last 5% of the Book (or a minimum of the final fifteen pages of the Book). Also, for Books of fiction, Google may display up to 5% or fifteen pages (whichever is less) adjacent to where a user lands on a given page. Rightsholders may also select another preview option, in which the pages available for preview are fixed (up to 10% of the pages of the Book, as chosen by Google and, if a mechanism to do so is developed, chosen by the Rightsholder) (“Fixed Preview”). The pages presented to the user with Fixed Preview do not depend on the user’s search. Rightsholders will have the ability to change the type of Preview available for their Books at any time. Preview uses are designed to serve as a marketing tool to sell the Book for Consumer Purchase or otherwise. Rightsholders are also expected to receive advertising revenues from advertisements placed on Preview Use pages for a Book. See Section 4.3 of the Settlement Agreement for a complete description of the Preview Use options available to Rightsholders.
(3) Snippet Displays: In response to a user’s search, Google may display about three or four lines of text from a Book (a “snippet”), with up to three snippets per user for that Book. Rightsholders are expected to receive advertising revenues from advertisements placed on web pages that display one or more snippets from, and are devoted to, a single Book.
(4) Display of Bibliographic Pages: Google may display to users a Book’s title page, copyright page, table of contents, and index.
Rightsholders of Books will have the right at any time to exclude any or all of their Books from any or all of the Display Uses (for example, one Book could be approved for all Display Uses and another for only display of snippets or for
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Preview Use). Rightsholders of Inserts will be able to exclude their Inserts from all (but not less than all) Display Uses. At any time, Rightsholders will be able to change their prior directions with respect to permitted Display Uses. In order to exclude your Books from one or more Display Uses, or to turn off all Display Uses for your Inserts, go to [LINK] or contact the Settlement Administrator.
G. Non-Display Uses
Subject to Rightsholders’ removal rights discussed in Question 9(D) above, Google will be permitted to make Non-Display Uses of the Books and Inserts. NonDisplay Uses are uses that do not involve displaying any content from a Book to the public; examples include display of bibliographic information, full-text indexing (without displaying the text); geographic indexing of Books; algorithmic listings of key terms for chapters of Books; and internal research and development at Google. Rightsholders may not exclude Books or Inserts from Non-Display Uses.
You may only prevent Google from making Non-Display uses of your Book if you make a timely request for removal of your Book. See Question 9(D) above.
You may only preserve your right to bring claims against Google for its NonDisplay Use of your Books or Inserts if you opt out of the Settlement altogether. Question 15 below informs you how to opt out of the Settlement.
H. Advertising Uses
Google may include advertisements on Preview Use pages and on any web pages dedicated to a single Book, including pages displaying snippets, bibliographical information, and search results from a user’s search performed over a single Book. Rightsholders of Books will earn 63% of the revenues from such advertisements. Google may also place advertisements on other Google products and services (e.g., search result pages, Google Maps), but Rightsholders of Books will not earn revenues from those advertisements.
Rightsholders of Books will have the right to direct Google not to include any advertising on any pages dedicated to a single Book, but not on pages resulting from a user’s search over multiple Books or over other content. In order to prevent advertising on any web pages dedicated to your Book, go to [LINK] or contact the Settlement Administrator.
I. Uses by Fully Participating Libraries
The Settlement permits Google to provide to each Fully Participating Library a digital copy of all the Books in that library’s collection (a “Library Digital Copy” or “LDC”), provided Google digitizes a certain amount of Books at that library. Fully Participating Libraries are authorized to use their LDC: (a) to make copies to preserve, maintain, manage and keep current that LDC; (b) to provide access to Books in the LDC to users who have disabilities that render them unable to use printed versions of Books;
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(c) to create a print replacement copy of a Book that is damaged, deteriorating, lost or stolen; (d) to use indexes and finding tools, and to display snippets in connection with finding tools (except if a Rightsholder directs the Fully Participating Libraries not to do so); (e) to permit faculty and staff to use up to five pages of a Book that is not Commercially Available for personal scholarly use and classroom use, if those Books are not in the Institutional Subscription; (f) for Non-Consumptive Research (subject to the limitations described in Question 9(J) below); (g) if the U.S. Copyright Act is amended to allow use of orphan works, to use Books from their LDC in accordance with the amended statute; and (h) for other lawful uses that a Rightsholder or the Registry approves (the Registry may only approve uses that do not impair any rights of the Rightsholders). The Settlement Agreement also prohibits Fully Participating Libraries from making certain uses of their LDC; however, fair uses of Books that are not Commercially Available are not prohibited if no Institutional Subscription is available.
J. Research Corpus
In addition, digital copies of all Books digitized by Google at libraries will be combined into a “Research Corpus.” The Research Corpus may be hosted at up to two separate sites (“Host Sites”) at any given time. With the Registry’s approval, Google could become an additional Host Site (i.e., a third Host Site if two already exist). The Research Corpus will be made available to “qualified users” solely for engaging in specific types of research, including: (a) computational analysis of the digitized images to either improve the image or extracting textual or structural information from the image; (b) extracting information to understand or develop relationships among or within Books; (c) linguistic analysis, to better understand language, linguistic use, semantics and syntax as they evolve over time and across genres of Books; (d) automated translation (without actually producing translations of Books for display purposes); and (e) developing new indexing and search techniques. For more information regarding the types of research permitted in connection with the Research Corpus, see Section 7.2(d) of the Settlement Agreement. In addition, such research also can be conducted on LDCs at Fully Participating Libraries. Books will only be excluded from the Research Corpus and LDCs if they are removed (see Question 9(D) above).
Book or Insert Rightsholders can only preserve their claims against Google and the Fully Participating Libraries for use of Books and Inserts in the Research Corpus by opting out of the Settlement Agreement. See Question 15 for more information regarding how to opt out.
For any Books that are Commercially Available as of January 5, 2009, or within two years thereafter, the Rightsholder has the right to withdraw the Books from the Research Corpus as long as they remain Commercially Available. If your Book is Commercially Available, and you would like to withdraw your Book from the Research Corpus, then go to [LINK].
The Research Corpus and its use are subject to detailed requirements and limitations, all set forth in the Settlement Agreement, at [LINK] or available from the
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Settlement Administrator, as well as in agreements between the Registry and each Host Site.
K. Plan of Allocation/Unclaimed Funds
(1) Plan of Allocation
Rightsholders who register with the Registry will be compensated in United States dollars for Google’s commercial uses of their Books and Inserts. The principles for compensation are set out in a Plan of Allocation, at [LINK] or available from the Settlement Administrator. Compensation to Rightsholders will be based both on the actual usage of Books (“Usage Fees”) and on the inclusion of Books and Inserts in the institutional subscription database (“Inclusion Fees”).
(a) Usage Fees. Usage Fees will be paid to Books Rightsholders for all revenue models. For usage of a Book in subscriptions, the Registry will calculate “usage” based on a number of factors, including the number of times users view the Book, how much of the Book is viewed, and the Book’s Settlement Controlled Price, relative to the usage of other Books used in the same reporting period. For other uses, Usage Fees will be based on the price at which the Book is sold, the number of pages printed, or the advertising revenues that it earns. The Registry will calculate Usage Fees on a per-Book basis every reporting period, which reporting period will be determined by the Registry based on efficiency. No Usage Fees are paid for Inserts.
(b) Inclusion Fees. Inclusion Fees will be paid for eligible Books and Inserts from revenues the Registry receives from sales of subscriptions. The target Inclusion Fee for Books is US $200/Book and the minimum Inclusion Fee for Inserts is US $50/Entire Insert and US $25/Partial Insert. For Inserts, the Inclusion Fees for all content from a single work that appears in other works is capped at US $500, no matter how many Inserts are created from the content and no matter in how many other works the Insert appears. Rightsholders are eligible for an Inclusion Fee so long as their Books or Inserts are not excluded by them (or, in the case of Books, by other Rightsholders who also have U.S. copyright interests in those Books) from subscriptions. (If Google determines not to include a Book in the subscription database for whatever reason, Book and Insert Rightsholders are still eligible to be paid Inclusion Fees.)
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Once Rightsholders have received their Inclusion Fees, they will no longer be permitted to exclude their Books or Inserts from subscriptions unless the Inclusion Fees are returned to the Registry.
Google’s sale of subscriptions to a database of Books is a new business model. Accordingly, the compensation for the inclusion and use of any Books and Inserts in subscriptions cannot be quantified with any degree of certainty. This is particularly the case with respect to the Inclusion Fees, and it is possible that the Inclusion Fee Fund might not be sufficient after ten years to pay all eligible Rightsholders’ full Inclusion Fees. Plaintiffs hope that sales of subscriptions will be robust and that there will be more than enough funding to pay all Inclusion Fees. If that is the case at the end of the ten years after the Registry first receives subscription revenues, then Rightsholders will receive more than the Inclusion Fees specified above. If, at the end of ten years, the funds are insufficient, however, the Registry Board will determine whether the Rightsholders’ overall best interests are served by continuing payment of Inclusion Fees for Books or terminating those fees in favor of payment only of Usage Fees. If a majority of the Board votes to discontinue funding Inclusion Fees for Books before the target Inclusion Fee of US $200/Book is reached, then Books Rightsholder may not receive US $200 for Inclusion Fees, the available funds will be distributed to eligible Rightsholders at that time and, thereafter, Books Rightsholders will only receive Usage Fees. (If the Registry Board does not vote to discontinue funding for Inclusion Fees for Books, then that funding will continue, as described in Question 9(K)(1)(b) and (c) below). In any event, Inclusion Fees for Inserts will continue to be funded until the Registry pays US $50/Entire Insert and US $25/Partial Insert.
In order to receive an Inclusion Fee, you must register your Books and Inserts with the Registry within five years of the Effective Date. The website www.xxxxx.com will post the Effective Date when it occurs but, in the meantime, you are encouraged to register your Books and Inserts as soon as possible.
(c) Allocation of Subscription Revenues Between Usage and Inclusion. From the net revenues the Registry receives from subscriptions (i.e., after payment of the Registry administrative fees), 75% will be paid into a Usage Fee 23
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Fund and 25% will be paid into an Inclusion Fee Fund. The Inclusion Fee Fund itself will be divided into two subfunds: 80% (of the 25%) will go into a Book Sub-Fund and 20% (of the 25%) will go into an Insert Sub-Fund. If, by or before the tenth anniversary of the date on which the Registry first receives subscription revenues, there are sufficient funds in the Inclusion Fee Fund to pay US $200/Book, US $50/Entire Insert and US $25/Partial Insert, then all Inclusion Fee Funds will be distributed at that time. If there are not enough funds by the tenth anniversary date to pay such amounts, then, thereafter, 10% of the net revenues the Registry receives from subscriptions will be paid into the Inclusion Fee Fund for so long as is necessary to pay US $200/Book, US $50/Entire Insert and US $25/Partial Insert, unless, with respect to Books, a majority of the Board of the Registry votes to discontinue paying subscription revenues into the Book Sub-Fund.
The allocation between Usage Fees and Inclusion Fees described above reflects the Plaintiffs’ attempt to fairly and equitably balance the following competing considerations: (1) the value of a Book that is actually “used,” and (2) the value that a Book or Insert contributes to the overall value of the subscription database by virtue of its being included in the database and made available to users.
(d) Summary of Other Provisions. (1) No Usage Fees or Inclusion Fees for any Book or Insert will be paid until the Registry has cleared disputes among Rightsholders with respect to that Book or Insert. (2) For every registered Rightsholder, the Registry will maintain an account for every registered Book and Insert, and will pay Usage Fees and Inclusion Fees, or combinations of such fees, only when the Rightsholder is due an amount (e.g., US $25) below which it would not be efficient for the Registry to issue payments. (3) An Insert Rightsholder has the right to demonstrate to the Registry that the contract with the Book Rightsholder provides for payment of an amount greater than the Inclusion Fees for Inserts. (4) All disputes regarding the allocation of revenues among Book Rightsholders will be resolved under the Author-Publisher Procedures (except for disputes between multiple publishers of the same Book), and all disputes regarding the allocation of revenues for Inserts will be resolved in binding arbitration under the rules set forth in Article IX of the Settlement Agreement.
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(2) Unclaimed Funds
The Registry will likely receive revenues from Google that are due to Rightsholders who do not register with the Registry or who do not claim their funds within five years after the Effective Date (for Inclusion Fees), or within five years after their Books are used (for Usage Fees) (“Unclaimed Funds”). Unclaimed Funds will be distributed as follows: (a) Unclaimed Funds from Subscription revenues will first be used to defray operational expenses of the Registry and maintain reserves for the Registry, and any remaining Unclaimed Funds will be paid on a proportional basis to registered Rightsholders whose Books earned Subscription Usage Fees during the reporting period in which the Unclaimed Funds were earned; and (b) Unclaimed Funds from Book Use revenues will first be used to defray operational expenses of the Registry and maintain reserves for the Registry; then any remaining Unclaimed Funds will be paid on a proportional basis to registered Rightsholders whose Books earned Book Use revenues during the reporting period in which the Unclaimed Funds were earned, until Rightsholders of a single Book have received, in total, 70% of the revenues Google received for the Book Use of that Book; and then, for any Unclaimed Funds remaining thereafter, to not-for-profit entities that directly or indirectly benefit the Rightsholders and the reading public.
L. Security Provisions
Google and Plaintiffs, including security experts retained by or working for Plaintiffs, developed a security standard to ensure that Books and Inserts are subject to appropriate levels of security (the “Security Standard”). The Security Standard addresses several areas of security: breaches of security with respect to Books at Google; breaches of security of the Fully Participating Libraries’ LDCs; breaches of security at the Research Corpus Host Sites; and efforts to restrict unauthorized access to Books. The Security Standard requires that Google, each Fully Participating Library and each Host Site develop its own Security Implementation Plan, which must comply with the Security Standard and which is subject to the Registry’s approval. The Security Standard, Attachment D to the Settlement Agreement, may be obtained at [LINK] or from the Settlement Administrator. In addition, the Settlement Agreement and the Registry’s agreements with the Fully Participating Libraries and the Host Sites provide for remedies for security breaches. Further information on those remedies is set out at Article VIII of the Settlement Agreement, available at [LINK] or available from the Settlement Administrator.
M. Dispute Resolution
Google, the Registry, Rightsholders, Participating Libraries and the Host Sites will attempt to informally resolve most disputes concerning matters pertaining to the
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Settlement. If, after thirty days, they are unsuccessful, then the dispute will go to arbitration, and the arbitrator’s decision will be final and binding on the parties to the dispute. Examples of disputes that will be subject to arbitration are (a) disagreements over pricing and other economic terms; (b) disagreements over claimed security breaches; (c) disagreements over whether a Book is in-print, out-of-print or in the public domain; and (d) disagreements over whether Google or a Fully Participating Library has made use of a Book that is not authorized under the Settlement. This is an illustrative, not an exhaustive, list of potential types of disputes subject to arbitration. You should read Article IX of the Settlement Agreement, the Author-Publisher Procedures and the Library-Registry Agreements, all available at [LINK] or available from the Settlement Administrator, for a description of which disputes are subject to binding arbitration or to litigation.
The Court will have continuing jurisdiction to resolve all other disputes concerning the parties’ obligations under the Settlement Agreement and the other agreements. In addition, for expedited relief, or where the breach is repeated, willful or intentional, the parties reserve their right to sue in court for temporary injunctive relief without first going to arbitration.
N. Non-Exclusive Rights
Rights granted to Google and the Participating Libraries are non-exclusive only, and Rightsholders have every right to authorize, through the Registry or otherwise, any individual or entity, including direct competitors of Google, to use their works in any way, including ways identical to Google’s and the Participating Libraries’ authorized uses. Rights and authorizations granted to Google and the Participating Libraries are not transfers of copyright ownership to those works, and nothing in the Settlement Agreement shall operate to transfer any copyright ownership interests in Rightsholders’ works.
10. What are Authors’ and Publishers’ rights under the AuthorPublisher Procedures?
Both an author and a publisher may have U.S. copyright interests in the same Book. The respective rights of members of the Author Sub-Class and the Publisher SubClass are addressed in the Author-Publisher Procedures, available at [LINK] or available from the Settlement Administrator. The following is a summary of the Author-Publisher Procedures:
(1) In-Print Books
In order for Google to make Display Uses of any in-print Book, both the author (other than a work-for-hire author) and the publisher must agree to authorize Google to make Display Uses in accordance with a process set out in the Author-Publisher Procedures. The Registry will pay revenues earned from Google’s use of an in-print Book (including Cash Payments for Google’s digitization of a Book prior to May 5, 2009) to publishers,
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who will then pay authors in accordance with the terms of the authorpublisher contract for that Book. If the author is not satisfied with the amount of the payment made by the publisher, then the dispute may be resolved, with the Registry’s assistance, in arbitration. This arbitration right does not apply to authors and publishers of Educational Books (i.e., Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs); disputes between those parties must be resolved under the terms of the individual author-publisher contract for the Educational Book.
For any in-print Book for which Google is authorized to make Display Uses, both the author and publisher have the right to request removal of the Book or to exclude the Book from any and all Display Uses. In those cases, the more restrictive directions (whether received from the author or the publisher) will be controlling. If the author and publisher agree that Google may make consumer use of an in-print Book, the publisher has the right to control the pricing of the Book. If, however, the author objects to the price and is unable to persuade the publisher to change the price, the author may exclude the Book from consumer uses.
(2) Out-of-Print Books
(a) Removal and Exclusion From Display Uses. As described above, the Settlement Agreement provides that all out-of-print Books are automatically included in all Display Uses. Rightsholders can make decisions as to removal, exclusion and pricing of any out-ofprint Book as follows: (a) for Books that are works-for-hire, only the publisher can make the removal, exclusion and pricing decisions; (b) for Books where rights have reverted to the author or where such Books are considered “author controlled” (see the following paragraph), only the author can make removal, exclusion and pricing decisions; and (c) for all other unreverted Books, either the author, or the publisher for good cause articulated, can make removal and exclusion decisions, and either can make pricing decisions (the more restrictive directions as to level of access, and the higher price, will govern).
For purposes of the Settlement (and only for such purposes), a Book will be considered “author controlled” if the Book is eligible for reversion under the author-publisher contract, the author has sent a request for reversion to the publisher and the publisher has not responded to that request for either ninety days or any written response period specified in the author-publisher contract, whichever period is longer. If those conditions are met, the author may send a request to the Registry (with a copy to the publisher) to
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treat the Book as “author-controlled.” In that request, the author must affirm that the Book is no longer “in print” as defined in Test 1 (see Question 10(3)(a)) and that the publisher’s response period (i.e., the longer of ninety days or the period set forth in the authorpublisher contract) has expired; the request must include a copy of the request for reversion previously sent to the publisher and a copy of the applicable author-publisher contract (if the author has it).
If the publisher does not dispute the request in writing within 120 days, the Registry shall deem the Book to be “author-controlled.” If the publisher timely disputes the request, the parties shall submit the issues in dispute to the Registry for decision.
(b) Allocation of Cash Payments and Revenues. The Registry will make all payments with respect to an out-of-print Book separately to the Book’s author and publisher, as follows: (a) 100% to the author for any Book that has reverted or is “author controlled”; (b) 100% to the publisher for any Book that is a work-for-hire; and (c) for all other unreverted Books, 65% to the author and 35% to the publisher if the Book was published prior to 1987, and 50% to the author and 50% to the publisher if the Book was published in 1987 or thereafter.
(3) Determination of Whether a Book is In-Print or Out-Of-Print
For purposes of the Settlement (and only for such purposes), a Book is deemed “in-print” if it meets one of the following two tests:
(a) Test 1. The Book is “in-print” under the terms of the authorpublisher contract. For this purpose, the Book may be “in-print” even if the contract does not use the term “in-print.” If the contract measures “in-print” by reference to revenues earned, and more than 50% of the revenues paid to a publisher from exploitation of a Book are generated by Google’s exploitation of a Book, then those revenues shall NOT be considered in determining whether this Test 1 has been met. If the contract measures “in-print” by units sold or some measure other than revenues, then an equivalent principle will be applied in determining whether this Test 1 has been met. That a Book or information about a Book is included in a database, or that information about the Book is provided in search engine results, does not, by itself, mean that the Book is “inprint.” A Book is not “in-print” if the contract provides for reversion and all of the criteria for reversion have been met (except that the author need not have sent a request for reversion to the publisher even if required by the contract); or
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 276 of 323
(b) Test 2. The publisher, consistent with any rights it may have in the Book under the author-publisher contract, publicly has announced to the trade that it has undertaken concrete steps to publish an existing or new edition of the Book, and that edition is published within twelve months of the announcement.
(4) Disputes Over Whether a Book is In-Print or Out-Of-Print
Members of the Author Sub-Class and Publisher Sub-Class, or their representatives on the Board of the Registry, may dispute the status of a Book as “in-print” or “out-of print” by notifying the Registry with evidence (such as contracts, royalty statements, trade announcements, or affidavits) sufficient to establish whether or not the Book meets either of the two tests in paragraph (3) above. The other party will have the right to respond, but, if it does not do so within 120 days, the status of the Book will be changed. If both the author and the publisher do submit competing evidence and are not able to resolve the matter by agreement, then the Registry, or an arbitrator selected by the Registry, will resolve the dispute by reviewing each party’s evidence, as well as any other relevant evidence and arguments submitted by the parties, including the course of dealing between the parties and industry standards and practices. The Registry’s (or arbitrator’s) decision will be final, although the decision pertains only to the Settlement, and may not be used for any other purpose, such as a precedent in a different, non-Settlement related dispute between the author and publisher of the same Book.
(5) Other Disputes
All disputes between co-authors, or between an author’s heirs, or between multiple other Rightsholders who are members of the Author Sub-Class must be resolved in arbitration. Disputes between multiple Rightsholders that are members of the Publisher Sub-Class may, but are not required to be, resolved in arbitration.
(6) Allocation of Unclaimed Funds Between Authors and Publishers
Subject to the Unclaimed Funds provision described in Question 9(K)(2) above, all revenues allocated under the Author-Publisher Procedures to Author Sub-Class members that are unclaimed will be distributed to claiming Author Sub-Class members, and all revenues allocated to Publisher Sub-Class members that are unclaimed will be distributed to claiming Publisher Sub-Class members.
(7) Google Partner Program
A Rightsholder might decide to place a Book in the Partner Program instead of in Display Uses under the Settlement Agreement because it
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 277 of 323
believes it might be able to negotiate better economic terms with Google or for some other reason. The Settlement with Google pertains only to Display Uses under the Settlement Agreement, and not to the Partner Program. The Author-Publisher Procedures provide Rightsholders of an in-print Book with certain rights if another Rightsholder in the same Book places the Book in the Partner Program (or any other Google program similar to the revenue models under the Settlement Agreement) instead of in the revenue models under the Settlement Agreement. These rights pertain only to Books published under an author-publisher contract executed prior to 1992 and that had not been amended thereafter to address electronic rights. They are summarized as follows:
(a) Removal or Transfer Requests. A Rightsholder who believes Google is using a Book in the Partner Program (or any other Google program with revenue models similar to the Settlement Agreement) without the necessary authorization from the Rightsholder may request that Google either remove the Book from the other Google program or transfer the Book from the other Google program into the Settlement Agreement program. The request must be made to the Registry and Google using the notification form at [LINK] or available from the Settlement Administrator. Google will notify the person or entity that permitted Google to use the Book in the Partner Program or other Google program. If that person or entity objects to the removal or transfer request within thirty days, it must do so by notifying the Registry and Google using the notification form at [LINK] or available from the Settlement Administrator.
(b) Undisputed Requests. If the person or entity who permitted Google’s use in the Partner Program or other Google program fails to respond to the notification within thirty days, then Google will remove the Book or transfer it to the Settlement Agreement program as requested by the requesting Rightsholder. If transferred into the Settlement Agreement program, the Book will become subject to the Settlement Agreement and payments will be made in accordance with the Author-Publisher Procedures.
(c) Disputed Removal Requests. If the request is for Google to remove the Book from the Partner Program or other Google program (as opposed to transferring the Book to the Settlement Agreement program), and if the request is disputed by the other Rightsholder, then Google will decide whether or not to honor the request. Any party seeking to challenge Google’s decision may sue the other party to determine who has the right to authorize Google to use the Book in the Partner Program or other program. No rights are released against Google with respect to any decision by Google to use or remove the Book. 30
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(d) Disputed Transfer Requests. If the request is for Google to transfer the Book from the Partner Program or other Google program to the Settlement Agreement program, then Google will stop using the Book in such other Google program until the competing Rightsholders resolve their dispute. Either Rightsholder may sue the other to determine who has the right to authorize Google to use the Book in the Partner Program or other Google program. In any event, Google will only include the Book in the Settlement Agreement program if the competing Rightsholders jointly authorize Google to do so, or if one of the competing Rightsholders obtains a court ruling giving it authority to request Google to do so.
The above is only a summary of the Author-Publisher Procedures and you are encouraged to review those procedures. They are available at [LINK]
or from the Settlement Administrator.
REMAINING IN THE CLASS
11. What happens if I do nothing?
If you are a member of the Author Sub-Class or Publisher Sub-Class, you need not do anything at this time if you want to remain in the class as a member of either Sub-Class. If you choose to remain in the class, your rights in this litigation will be represented by the Sub-Class Representatives and by Class Counsel. You will receive the benefits of the Settlement if approved by the Court (and if you timely submit the applicable forms), and your claims against Google and the Participating Libraries will be released and will be dismissed by the Court. If you remain in the class, you will be bound by any judgment or determination of the Court in connection with the Settlement, whether favorable or unfavorable.
12. What entities am I releasing?
As of the Effective Date, Rightsholders will release claims against Google and all of the Participating Libraries, and each of their past, present, and future parents, predecessors, successors subsidiaries, affiliates, and divisions, and each of their respective officers, directors, employees and others listed in Article X of the Settlement Agreement. For the specific claims being released against each of these entities, see Question 13 below. For more details regarding the entities released, please see the complete text of the releases, contained in Article X of the Settlement Agreement.
13. If I remain in the class, what claims am I specifically giving up?
The following is a summary of the claims Rightsholders will release as of the Effective Date. For more details regarding the released claims, please see the complete text of the releases, contained in Article X of the Settlement Agreement.
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Rightsholders release all claims against Google and each Participating Library that arise out of certain conduct occurring prior to the Effective Date, including Google’s digitization of Books and Inserts; Google’s use of digital copies in Google’s products and services; each library’s provision of Books and Inserts to Google for digitization; Google’s provision of digital copies to libraries and the libraries’ receipt of those copies (except Google’s provision of digital copies to Other Libraries after 60 days after Settlement Agreement Date); and the libraries’ (except for the Other Libraries’) uses of those digital copies in a manner consistent with the Settlement Agreement. If, however, an Other Library makes an unlawful use of any digital copies, no claims against such Other Library for its provision of Books to Google, or the receipt of any digital copies, are released.
Rightsholders release all claims against Google, and each Fully Participating Library, Cooperating Library and Public Domain Library that, after the Effective Date, arise out of any act or omission authorized by the Settlement Agreement or by an applicable Library-Registry Agreement. No claims arising after the Effective Date are released against Other Libraries.
However:
1. None of the claims of Class members who timely opt out of the Settlement are released or in any way adversely affected by the Settlement.
2. The Settlement provides that Google and the Fully Participating Libraries are authorized to use Books and Inserts only in accordance with the Settlement and any applicable Library-Registry Agreement, and no claims are released that are based on any use of Books and Inserts not authorized by the Settlement Agreement or an applicable Library-Registry Agreement.
3. No claims are released for violations of any of Google’s or a Participating Library’s obligations under the Settlement Agreement or an applicable Library-Registry Agreement.
4. No claims are released for the unauthorized use by Google of Books and Inserts other than in the Settlement Agreement programs.
5. No claims are released with respect to the use by Google of Inserts in government works and public domain books if Google rejects a Rightsholder’s exclusion request. See Section 3.5(b)(vii) of the Settlement Agreement for further details.
6. No claims are released with respect to any acts or omissions after October 28, 2008 that, if occurring after the Effective Date, would not be authorized by the Settlement Agreement.
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 280 of 323
7. No claims are released with respect to any uses of digital copies by Other Libraries.
8. No claims are released with respect to use of Books and Inserts outside the United States or with respect to any digitization outside the United States.
9. No claims are released with respect to any acts of Google in the United States, in response to a request of a user outside the United States, that results in displaying parts of a Book or Insert, in the user’s jurisdiction, unless the display is lawful or Google has obtained permission for that display.
OPTING OUT OF THE SETTLEMENT CLASS
14. What do I do if I don’t want to be in the Settlement?
If you do not want to be included in the Settlement and you want to retain the right to sue Google and the Participating Libraries, you must take steps to “opt out” of the Settlement. By opting out, you retain the right to file your own lawsuit or join another lawsuit against Google about the claims in this lawsuit.
If you opt out of the Settlement, you will not be eligible for a Cash Payment or to participate in any of the revenue models under the Settlement. You will, however, have the right to bring your own lawsuit. In addition, even if you opt out of the Settlement, you may still be able to contact the Registry or Google at a later date to attempt to negotiate a separate deal for inclusion of your Books in any of the Settlement Agreement programs.
15. How do I opt out of the Class?
You may opt out of the Settlement by:
1) Going online at [LINK] and following the instructions to opt out, or
2) Sending written notice by first class mail, postage prepaid, on or before May 5, 2009 to the Settlement Administrator, at: Google Book Search Settlement Administrator, c/o Rust Consulting, PO Box 9364, Minneapolis, MN 55440-9364. The postmark will determine the time of mailing. You need not state your reason for opting out. However, your opt-out request must be signed or, if submitted online, completed, by an authorized person, must state which Sub-Class you wish to opt out of (either the Author Sub-Class or Publisher Sub-Class), must provide your name and address or, if you are an author’s agent, must provide the name of the Author Sub-Class member on whose behalf you are acting (i.e., the person whose name appears as the author of the Book or Insert), and any pseudonym used to author the Books, if applicable. To ensure that Google clearly understands which Books and/or Inserts may be implicated by a 33
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 281 of 323

decision to opt out, members of the Publisher Sub-Class must identify all of the imprints under which they publish their Books. Google and Plaintiffs request (but do not require) that all members of the Author SubClass or Publisher Sub-Class provide the following information with respect to each Book and Insert in which they hold a U.S. copyright interest: title, author, publisher and ISBN (if the Book has an ISBN).

OBJECTING TO OR COMMENTING ON THE SETTLEMENT

16. May I object to or comment on the Settlement?

Yes. If you remain in either Sub-Class and do not opt out of the Settlement, you have the right to object to or comment on any or all of the Settlement, including the entry of final judgment dismissing the litigation with prejudice, the request for attorneys’ fees and costs of Counsel for the Author Sub-Class and the request for a special award to the Sub-Class Representatives. If you wish to object to the Settlement, you must, on or before May 5, 2009, file with the Court a statement of your objection or position to be asserted and the grounds for your objection, together with copies of any supporting papers or briefs to:

Office of the Clerk J. Michael McMahon U.S. District Court for the Southern District of New York 500 Pearl Street New York, New York 10007

You must also serve a copy of such papers by email or first class mail on the following attorneys:

Counsel for the Author Sub-Class:
Michael J. Boni, Esq. Joanne Zack, Esq. Joshua Snyder, Esq. Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 bookclaims@bonizack.com

Counsel for the Publisher Sub-Class:
Jeffrey P. Cunard, Esq. Bruce P. Keller, Esq. James J. Pastore, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 bookclaims@debevoise.com

Counsel for Google:
Daralyn J. Durie, Esq. David J. Silbert, Esq. Joseph C. Gratz, Esq. Keker & Van Nest LLP 710 Sansome Street San Francisco, CA 94111 bookclaims@kvn.com

You may appear at the hearing in person or, if you are represented by an attorney, your attorney may appear in person, and state why the Settlement or any part of the Settlement should not be approved. You must give notice of your or your attorney’s intent to do so in the statement you file with the Court.

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Unless you object as provided in this Notice, you will not be entitled to contest the terms and conditions of the Settlement, including the application by Counsel for the Author Sub-Class for attorneys’ fees and costs and the request for a special award to the Sub-Class Representatives, and persons who fail to object as provided shall be deemed to have waived and shall be forever foreclosed from raising any such objections.

17. What is the difference between objecting to the Settlement and opting out of the Settlement?

You may object to the Settlement if you remain a class member and are subject to the Settlement, if approved, but disagree with some aspect of the Settlement. An objection allows your views to be heard in Court.
In contrast, opting out means that you are no longer a class member and, ultimately, that you do not want to be subject to the terms and conditions of the Settlement. Once you opt out, you lose any right to object to the Settlement, because the Settlement will no longer affect you.

THE LAWYERS REPRESENTING YOU

18. Do I have a lawyer representing my interests in these cases?

Yes. The Court has appointed the following law firms to represent you and other class members:

Counsel for the Author Sub-Class
Michael J. Boni, Esq. Joanne Zack, Esq. Joshua Snyder, Esq. Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004

Counsel for the Publisher Sub-Class
Jeffrey P. Cunard, Esq. Bruce P. Keller, Esq. James J. Pastore, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022

19. How will the lawyers be paid?
Counsel for the Author Sub-Class will request that the Court award attorneys’ fees and expenses. Subject to Court approval, Google will pay those attorneys’ fees and expenses of US $30 million. (Counsel for the Author Sub-Class has incurred approximately $140,000 in expenses as of the date of the Settlement Agreement.) Google will pay those fees and expenses in addition to the amounts it has agreed to pay to Sub-Class members and Rightsholders.
Counsel for the Publisher Sub-Class have agreed not to seek attorneys’ fees or reimbursement of expenses from the class action settlement funds. Instead, counsel for
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 283 of 323
the Publisher Sub-Class will be paid from the settlement between Google and the publishers in the related case, The McGraw-Hill Companies, Inc. et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.). The five publisher plaintiffs in that action are SubClass Representatives on behalf of the Publisher Sub-Class. Contingent upon the Settlement Agreement becoming final, they will dismiss their separate suit against Google after the Effective Date. Google has agreed to pay US $15.5 million in settlement of that action. Counsel for the Publisher Sub-Class will be paid their attorneys’ fees and costs from that amount, and the rest will be used by the Association of American Publishers to establish a fund to serve the interests of both publishers and authors. The use of the remaining funds is subject to prior approval of a majority of the members of the Board of the Registry, including at least one author director and one publisher director.
20. Should I get my own lawyer?
You do not need to hire your own lawyer, but if you want your own lawyer to speak for you or appear in Court, you must file a Notice of Intent to Appear. See Question 23 below to find out how to submit a Notice of Intent to Appear. If you hire a lawyer to appear for you in the lawsuit, you will have to pay for your lawyer.
THE COURT’S FINAL APPROVAL HEARING
21. When and where will the Court decide whether to grant final approval of the Settlement?
The Court will hold a Fairness Hearing on ___________, 2009 at ____ in Courtroom ___ of the United States District Court for the Southern District of New York, United States Courthouse, 500 Pearl Street, New York, NY 10007, to consider whether the Settlement is fair, adequate and reasonable. At or after the Fairness Hearing, the Court will decide whether to approve the Settlement and the motion for attorneys’ fees and expenses. If comments or objections have been received, the Court will consider them at this time.
The time and date of the hearing may be rescheduled by the Court without further notice. If you desire to remain in either Sub-Class and participate in the Settlement, you are not required to do anything further at present.
22. Must I attend the Fairness Hearing?
No. Attendance is not required. Class Counsel are prepared to answer the Court’s questions on your behalf. If you or your own lawyer wants to attend the Fairness Hearing, you may do so at your own expense.
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 284 of 323

23. May I speak at the Fairness Hearing?

Yes. You may speak at the Fairness Hearing or hire your own lawyer to speak for you. If you want to do so, you must file a “Notice of Intent to Appear” with the Court. The Notice of Intent to Appear must include the name and number of this lawsuit, and state that you wish to enter an appearance at the Fairness Hearing. It also must include your name, address, telephone number and signature as well as the name and address of your lawyer, if one is appearing for you. You cannot speak at the Fairness Hearing if you opt out of the Settlement. Your Notice of Intent to Appear must be filed with the Court no later than Month Day Year, at the following address:

Office of the Clerk J. Michael McMahon U.S. District Court for the Southern District of New York 500 Pearl Street New York, New York 10007

Copies of the Notice of Intent to Appear must be emailed or sent by postal mail to the following addresses, postmarked no later than Month Day, Year:

Counsel for the Author Sub-Class:
Michael J. Boni, Esq. Joanne Zack, Esq. Joshua Snyder, Esq. Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 bookclaims@bonizack.com

Counsel for the Publisher Sub-Class:
Jeffrey P. Cunard, Esq. Bruce P. Keller, Esq. James J. Pastore, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 bookclaims@debevoise.com

Counsel for Google:
Daralyn J. Durie, Esq. David J. Silbert, Esq. Joseph C. Gratz, Esq. Keker & Van Nest LLP 710 Sansome Street San Francisco, CA 94111 bookclaims@kvn.com

GETTING MORE INFORMATION

24. Where do I get more information?

The Settlement Agreement, its attachments and the other legal documents that have been filed with the Court in this lawsuit contain more details about the Settlement. You may look at and copy these legal documents at any time during regular office hours at the Office of the Clerk, J. Michael McMahon, U.S. District Court for the Southern District of New York, 500 Pearl Street, New York, New York 10007. These documents are also available on the Settlement website at [LINK].

In addition, if you have any questions about the lawsuit or this Notice, you may:

•

Visit the Settlement website at [LINK],

•

Contact the Authors Guild at http://www.authorsguild.org, or the

Association of American Publishers at http://www.publishers.org,

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•

Call the appropriate number at the end of this Notice (Appendix A), or

•

Write to:

Google Book Search Settlement Administrator c/o Rust Consulting, Inc. PO Box 9364 Minneapolis, MN 55440-9364

If you change your address or if this Notice was not mailed to your correct address, you should notify the Settlement Administrator. If the Settlement Administrator does not have your correct address, you may not receive your benefits under the Settlement or notice of important developments.

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Appendix A
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Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 287 of 323 ATTACHMENT J

Legal Notice Attachment J to Settlement Agreement Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 288 of 323
Persons Outside the United States: This settlement may affect you because it covers U.S. copyright interests in books published outside the United States. If you hold such an interest
in a book or other material in a book, this settlement will bind you unless you timely opt out.

If You Are a Book Author, Book Publisher or Other Person Who Owns a Copyright in a Book or Other Writing,
Your rights may be affected by a class action settlement with Google regarding Google’s scanning and use of Books and other writings.

Authors and publishers filed a class action lawsuit, claiming Google violated the copyrights of authors, publishers and other copyright holders (“Rightsholders”) by scanning in-copyright Books and Inserts, and displaying excerpts, without permission. Google denies the claims. The parties have now agreed to a settlement. This summary provides basic information about the settlement. “Books” and “Inserts” are described below.
What Does the Settlement Provide? The settlement, if Court-approved, will authorize Google to scan in-copyright Books and Inserts in the United States, and maintain an electronic database of Books. For out-of-print Books and, if permitted by Rightsholders of in-print Books, Google will be able to sell access to individual Books and institutional subscriptions to the database, place advertisements on any page dedicated to a Book, and make other commercial uses of Books. At any time, Rightsholders can change instructions to Google regarding any of those uses. Through a Book Rights Registry (“Registry”) established by the settlement, Google will pay Rightsholders 63% of all revenues from these uses.
Google also will pay $34.5 million to establish and fund the initial operations of the Registry, and at least $45 million for cash payments to Rightsholders of Books and Inserts that Google scans prior to the deadline for opting out of the settlement.
Who Is Included? The settlement class includes all persons worldwide who own a U.S. copyright interest in any Book or Insert. The meaning of “U.S. copyright interest” is broad. If you hold a copyright in a Book or Insert, or an exclusive license to a copyright, in any country, please read the full Notice to determine whether you are included in this Settlement.
There are two Sub-Classes: • The “Author Sub-Class” (authors of Books and other writings, and their heirs, successors and assigns), and • The “Publisher Sub-Class” (publishers of Books and periodicals, and their successors and assigns)
What Material Is Covered? “Books” include in-copyright written works, such as novels, textbooks, dissertations, and other writings, that were

published or distributed in hard copy format on or before [the Notice Commencement Date]. U.S. works must be registered with the U.S. Copyright Office to be in included in the settlement. “Books” do not include periodicals, personal papers, sheet music, and public domain or government works.
“Inserts” include any text and other material, such as forewords, essays, poems, quotations, letters, song lyrics, children’s Book illustrations, sheet music, charts, and graphs, if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book and, if U.S. works, registered with the U.S. Copyright Office. Inserts do not include pictorial content (except for children’s Book illustrations), or any public domain or government works.
The above definitions are only summaries. The Notice contains a further description of these terms and other essential information about the settlement.
What Should I do? Please read the full Notice. The Settlement Agreement, which describes the entire settlement, is available at [www.xxxxxx. com]. Decide whether you should:
• Remain in the settlement. If you do so, you will be bound by the Court’s rulings, including a release of your claims against Google and the libraries.
• Object to or comment on the settlement. You must object/ comment in writing by Month Day, Year.
• Exclude yourself and keep your right to sue Google individually. You must exclude yourself in writing by Month Day, Year.
• File a claim for a cash payment (if you are eligible to do so). You must file your claim by Month Day, Year.
The Court has appointed Class Counsel to represent the two Sub-Classes. If the settlement is approved, Class Counsel for the Author Sub-Class will request attorneys’ fees and expenses that Google also will pay. You can also hire your own attorney at your own cost.
The Court will determine whether to approve the proposed settlement at a Fairness Hearing on Month Day Year at Time x.m.

Get Complete Information, Including the Full Notice:
Visit: www.xxxxxxx.com Call: XXX-xxx-xxxx
Write: xxxxxxxxxxx

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 289 of 323 ATTACHMENT K

Case 1:05-cv-08136-DC Document 56 FAitlteadch1m0/e2n8t/0K8toPSaegtetle2m9e0notfA3g2r3eement
Attachment K - Paid Media Schedule U.S. Media Overview

Consumer Magazines
Publication Atlantic Monthly Harper's New York Magazine New Yorker Newsweek People The Economist Time Total

Circulation 431,625 214,840 429,116 1,062,018 2,600,000 3,450,000 672,000 3,250,000
12,109,599

Issue Frequency
10x/yr monthly weekly weekly weekly weekly weekly weekly

Unit Size Full Pg Full Pg Full Pg Full Pg Full Pg Full Pg Full Pg Full Pg

Plan Frequency
1 1 1 1 1 1 1 1 8

Sunday Supplements
Publication Parade USA Weekend Total

Circulation 32,400,000 23,000,000 55,400,000

Frequency Weekly Weekly

Unit Size 2/5 pg 2/5 pg

Plan Frequency
1 1 2

National Newspapers
Publication Wall Street Journal Washington Post New York Times Local newspapers - US Territories Total

Circulation 2,011,882 945,393 1,500,394 555,295 5,012,964

Frequency Mon-Fri Sunday Sunday Daily

Unit Size 1/4 Page 1/4 Page 1/4 Page 1/4 Page

Plan Frequency
1 1 1 1 4

Industry Publications
Publication Publisher's Weekly the New York Review of Books Variety Poets & Writers The Writer Writer's Journal Writer's Digest Total

Circulation 21,737 134,329 28,243 56,000 30,181 24,100 110,000 404,590

Frequency weekly 20x/year Daily
Bi-monthly Monthly
Bi-monthly Bi-monthly

Unit Size full Pg Jr Page Full Pg full Pg full Pg full Pg full Pg

Plan Frequency
2 2 1 1 1 1 1 9

Industry Websites
Website publishersweekly.com writersdigest.com literarymarketplace.com

Impressions 219,859 625,000 Varies

Frequency 24/7 24/7 24/7

Unit Size banner banner banner

Plan Frequency
1 1 1

Internaltional Print Media Overview

Publication Tier 1 United States (see separate plan) Tier 2 47 Countries Tier 3 34 Countries Tier 4 60 Countries Tier 5 71 Countries Total

National and Regional Publications

Circulation

Total # of Pubs

72,927,515

21

106,630,384

332

8,815,102

144

3,331,391

159

2,640,626

141

121,417,503

Unit Dimensions 7" x 9.75"
7.25" x 10" 7" x 9.75" 7.25" x 10" 7" x 10" 6.6875" x 8.8125" 7" x 10" 7.125" x 9.75"
7" x 10"

Total # of Ads running
23 384 170 201 141 896

Attachment K- Paid Media Schedule

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 291 of 323
EXHIBIT: MEDIA DISTRIBUTION BY TIERS Tier 1 Territories Media

Country U.S. U.S.

Language Arabic Spanish

Title Newsweek Bil Logha Al-Arabia Newsweek en Espanol

Distribution National National

Circulation 1,800 9,670

Guam

English

Pacific Daily News

National

22,451

Puerto Rico Puerto Rico

Spanish English

El Nuevo Dia San Juan Star

National National

241,129 105,597

U.S. Virgin Islands

English

Virgin Island Daily News

National

16,362

Northern Mariana Islands

English

Marianas Variety

National

5,000

Samoa

English

Samoa Observer
Tier 2 Media

National

5,000

Argentina Argentina Argentina Argentina

Country

Language Spanish Spanish English Spanish

Title La Nacion Clarin Economist Wall Street Journal

Distribution National National National Regional

Circulation 170,000 670,000 1,724 140,940

Australia Australia Australia Australia Australia Australia Australia Australia

English English English English English English English English

Daily Telegraph and Sunday Telegraph Sydney Morning Herald Melbourne Age Time Economist International Herald Tribune Wall Street Journal Newsweek

National Regional Regional National National National Regional National

731,336 360,000 299,800 72,000 18,920
87 230 774

Austria Austria Austria Austria Austria Austria Austria

German German English English English English English

Kurier Neue Kronen Zeitung Time Economist International Herald Tribune Wall Street Journal Newsweek

National National National National National Regional National

171,434 944,600
5,770 6,839 3,657 3,526 2,006

Belgium Belgium Belgium Belgium Belgium Belgium Belgium Belgium

Dutch French Dutch English English English English English

Het Nieuwsblad Le Soir Het Laatste Nieuwsblad Time Economist International Herald Tribune Wall Street Journal Newsweek

National National National National National National Regional National

277,477 119,454 287,857 11,320 13,527
3,571 5,006 8,760

Brazil Brazil Brazil Brazil Brazil Brazil

Portuguese Portuguese Portuguese English Portuguese English

O Globo Folha de Sao Paolo Veja (Nationwide) Economist Wall Street Journal Newsweek

Regional Regional National National Regional National

367,000 380,450 1,064,172
5,293 54,583 29,532

Canada Canada Canada Canada Canada

English English English French English

Globe and Mail National Post Toronto Star Journal de Montreal Time

National National Regional Regional National

419,343 394,507 657,722 320,658 210,000

Chile Chile Chile Chile Chile

Spanish Spanish English Spanish English

El Mercurio La Tercera Economist Wall Street Journal Newsweek

National National National Regional National

340,000 203,000
1,477 143,301
163

No of Insertions
1 1
1
2
1
1
1
No of Insertions
2 2 1 1
2 1 1 1 1 1 1 1
1 2 1 1 1 1 1
1 1 1 1 1 1 1 1
1 1 1 1 1 1
1 1 1 1 1
2 1 1 1 1

Attachment K- Paid Media Schedule

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 292 of 323

China, People's Republic of China, People's Republic of China, People's Republic of China, People's Republic of China, People's Republic of China, People's Republic of China, People's Republic of China, People's Republic of

Chinese (Simplified) Chinese (Simplified) Chinese (Simplified) English English English English Chinese (Simplified)

Renmin Ribao (People's Daily) Xinmin Evening News Guangzhou Daily Economist International Herald Tribune Wall Street Journal Newsweek Newsweek Select

National

3,000,000

3

Regional

1,700,000

1

Regional

800,000

1

National

4,280

1

National

4,198

1

Regional

5,133

1

National

5,892

1

National

120,000

1

Colombia Colombia Colombia Colombia Colombia

Spanish Spanish English Spanish English

El Tiempo El Espectador Economist Wall Street Journal Newsweek

National

447,000

2

National

200,000

1

National

500

1

Regional

227,000

1

National

1,355

1

Czech Republic Czech Republic Czech Republic Czech Republic Czech Republic Czech Republic Czech Republic

Czech Czech Czech English English English English

Mlada Fronta Dnes Lidove Noviny Metropolitni Expres Economist International Herald Tribune Wall Street Journal Newsweek

National

390,000

2

National

115,000

1

National

201,000

1

National

1,784

1

National

2,834

1

Regional

237

1

National

1,339

1

Denmark Denmark Denmark Denmark Denmark Denmark Denmark

Danish Danish English English English English English

Politiken Jyllands Posten Time Economist International Herald Tribune Wall Street Journal Newsweek

National

205,000

2

National

207,146

1

National

6,491

1

National

4,733

1

National

3,258

1

Regional

566

1

National

6,980

1

Egypt Egypt Egypt Egypt Egypt Egypt

Arabic Arabic English English English Arabic

Al Ahram Al Akhbar El Yom Economist International Herald Tribune Newsweek Newsweek Bil Logha Al-Arabia

National

1,551,400

2

National

1,157,000

2

National

1,062

1

National

2,084

1

National

1,599

1

National

4,500

1

Finland Finland Finland Finland Finland Finland Finland

Finnish Finnish English English English English English

Helsingin Sanomat Ilta-Sanomat Time Economist International Herald Tribune Wall Street Journal Newsweek

National

500,269

2

National

201,281

1

National

7,095

1

National

3,279

1

National

1,472

1

Regional

145

1

National

2,236

1

France France France France France France France France

French French French English English English English English

Le Monde

National

389,249

2

Le Figaro

National

343,690

2

Group Ouest & Sud Ouest Newspapers (11)

Regional

1,413,683

1

Time

National

69,343

1

Economist

National

43,244

1

International Herald Tribune

National

29,877

1

Wall Street Journal

Regional

10,281

1

Newsweek

National

29,621

1

Germany Germany Germany Germany Germany Germany Germany Germany Germany Germany Germany

German German German German German German English English English English English

Frankfurter Allgemeine Zeitung Suddeutsche Zeitung Bild Kultur Spiegel Stern Stern Time Economist International Herald Tribune Wall Street Journal Newsweek

Regional

527,252

1

Regional

437,124

1

National

4,499,135

1

National

918,942

1

National

1,221,500

1

Regional

214,966

1

National

95,577

1

National

43,584

1

National

21,129

1

Regional

16,579

1

National

39,421

1

Greece Greece Greece

Greek Greek Greek

To Vima Ta Nea Eleftherotipia

National

102,342

2

National

98,000

1

National

170,000

1

Attachment K- Paid Media Schedule

Greece Greece Greece Greece Greece
Hong Kong Hong Kong Hong Kong Hong Kong Hong Kong Hong Kong Hong Kong
Hungary Hungary Hungary Hungary Hungary Hungary
India India India India India India India India India India India India India India India
Indonesia Indonesia Indonesia Indonesia Indonesia Indonesia Indonesia
Ireland Ireland Ireland Ireland
Israel Israel Israel Israel Israel Israel Israel
Italy Italy Italy Italy Italy Italy Italy Italy
Japan Japan Japan Japan

Case 1:05-cEnvg-l0ish8136-DC DToimceument 56 Filed 10/28/08 PaNgateion2a9l 3 of 372,2370

1

English

Economist

National

3,742

1

English

International Herald Tribune

National

4,036

1

English

Wall Street Journal

Regional

353

1

English

Newsweek

National

1,754

1

Chinese (Traditional) English English English English English English

Apple Morning Daily South China Morning Post Time Economist International Herald Tribune Wall Street Journal Newsweek

National

340,000

2

National

116,661

1

National

50,500

1

National

18,148

1

National

9,861

1

Regional

13,488

1

National

27,923

1

Hungarian Hungarian English English English English

Népszabadság Metro Economist International Herald Tribune Wall Street Journal Newsweek

National

198,000

2

National

380,000

2

National

2,176

1

National

527

1

Regional

220

1

National

1,287

1

English Hindi Urdu Bengali Tamil Marathi Punjabi Gujarati Telagu Malayalam Kannada English English English English

Times Of India Dainik Jagran Munsif Daily Ananda Bazaar Patrika Dinamalar Lokmat Group newspapers Ajit Gujarat Samachar Eeanadu Kerala Kaumudi Vijay karnataka Economist International Herald Tribune Wall Street Journal Newsweek

National

3,200,000

2

National

733,512

1

Regional

45,000

1

Regional

1,303,000

1

Regional

74,000

1

Regional

910,250

1

Regional

266,000

1

Regional

972,000

1

National

1,100,000

1

Regional

48,000

1

Regional

505,000

1

National

18,153

1

National

2,775

1

Regional

544

1

National

13,718

1

Indonesian English English English English English English

Kompas Jakarta Post Time Economist International Herald Tribune Wall Street Journal Newsweek

National

518,658

3

National

35,000

1

National

4,000

1

National

4,096

1

National

3,310

1

Regional

5,175

1

National

7,206

1

English English English English

Irish Times Sunday Independent Economist Wall Street Journal

National

117,797

1

National

291,036

2

National

9,393

1

Regional

698

1

Hebrew Hebrew English English English English English

Ha'aretz (English and Hebrew Editions)

National

95,000

1

Yedioth Ahronoth

National

600,000

2

Jerusalem Post

National

145,000

1

Economist

National

2,226

1

International Herald Tribune

National

8,755

1

Newsweek

National

2,399

1

Time

National

8,417

1

Italian Italian Italian English English English English English

La Repubblica Correire Della Sera Quotidiano Nazionale Time Economist International Herald Tribune Wall Street Journal Newsweek

National

621,148

2

National

677,543

2

National

600,000

1

National

25,405

1

National

17,384

1

National

14,283

1

Regional

6,397

1

National

6,033

1

Japanese Japanese English English

Asahi Shimbun Yomiuri Shimbun Time Economist

National

8,225,032

1

National

10,032,441

2

National

35,000

1

National

9,950

1

Attachment K- Paid Media Schedule

Japan Japan Japan Japan

Case 1:05-cEnvg-l0ish8136-DC DInotecrnuamtioenanl Ht e5ra6ld TriFbuinleed 10/28/08 PaNgateion2a9l 4 of 3225,3057

1

English

Wall Street Journal

Regional

7,854

1

English

Newsweek

National

17,067

1

Japanese

Newsweek Nihon Ban

National

87,000

1

Malaysia Malaysia Malaysia Malaysia Malaysia Malaysia Malaysia Malaysia

Malay Malay English English English English English English

Mingguan Malaysia Berita Minggu The Star Time Economist International Herald Tribune Wall Street Journal Newsweek

National

462,927

2

National

305,256

1

National

310,950

1

National

20,000

1

National

7,939

1

National

2,398

1

Regional

6,067

1

National

23,973

1

Mexico Mexico Mexico Mexico Mexico Mexico Mexico Mexico

Spanish Spanish Spanish Spanish English Spanish English Spanish

Prensa Reforma Esto El Universal Economist Wall Street Journal Newsweek Newsweek en Espanol

National

270,000

1

Regional

128,576

1

National

560,000

1

Regional

139,450

1

National

2,670

1

Regional

303,230

1

National

27,006

1

National

49,000

1

Netherlands Netherlands Netherlands Netherlands Netherlands Netherlands Netherlands

Dutch Dutch English English English English English

Algameen Dagblad De Telegraaf Time Economist International Herald Tribune Wall Street Journal Newsweek

National

542,000

1

National

866,743

2

National

11,479

1

National

14,464

1

National

7,209

1

Regional

6,730

1

National

2,936

1

New Zealand New Zealand New Zealand New Zealand

English English English English

New Zealand Herald Time Economist Newsweek

National

78,000

2

National

24,000

1

National

4,548

1

National

527

1

Norway Norway Norway Norway Norway Norway

Bokmal Norwegian English English English English English

Aftenposten Time Economist International Herald Tribune Wall Street Journal Newsweek

National

279,500

3

National

11,365

1

National

6,388

1

National

1,208

1

Regional

475

1

National

2,580

1

Philippines Philippines Philippines Philippines Philippines Philippines Philippines Philippines

English English Tagalog English English English English English

Manilla Bulletin Daily Inquirer Pilipino Star Time Economist International Herald Tribune Wall Street Journal Newsweek

National

275,000

2

National

200,000

1

National

378,000

1

National

27,000

1

National

3,627

1

National

2,938

1

Regional

9,990

1

National

25,529

1

Poland Poland Poland Poland Poland Poland Poland

Polish Polish English English English English Polish

Gazeta Wyborcza Rzeczpospolita Economist International Herald Tribune Wall Street Journal Newsweek Newsweek Polska

National

817,400

3

National

251,000

1

National

2,805

1

National

328

1

Regional

539

1

National

2,157

1

National

135,000

1

Portugal Portugal Portugal Portugal Portugal Portugal Portugal Portugal

Portuguese Portuguese Portuguese English English English English English

Diario de Noticias Expresso Jornal De Noticias Time Economist International Herald Tribune Wall Street Journal Newsweek

Regional

98,000

1

National

138,527

2

Regional

75,000

1

National

8,968

1

National

3,711

1

National

815

1

Regional

276

1

National

1,190

1

Romania Romania

Romanian Romanian

Romania Libera Libertatea

National

57,594

1

National

270,428

2

Attachment K- Paid Media Schedule

Romania Romania Romania

Case 1:05-cRvom-0an8ia1n36-DC DJourcnauluml ent 56 Filed 10/28/08 PaRgegeion2a9l 5 of 3928,3905

1

English

Economist

National

1,191

1

English

International Herald Tribune

National

93

1

Russia Russia Russia Russia Russia Russia Russia

Russian Russian Russian Russian English English Russian

Kommersant Argumenti y Facty Komsomolskaya Pravda Trud Economist Wall Street Journal Newsweek Russky

National

135,000

1

National

3,560,000

2

National

2,300,000

1

National

612,850

1

National

2,881

1

Regional

171

1

National

60,000

1

Saudi Arabia Saudi Arabia Saudi Arabia Saudi Arabia Saudi Arabia Saudi Arabia Saudi Arabia

Arabic Arabic Arabic English English English Arabic

Al Sharq Al Awsat Okaz Al Hayat Economist International Herald Tribune Newsweek Newsweek Bil Logha Al-Arabia

National

200,000

1

National

85,000

1

National

270,000

2

National

1,115

1

National

116

1

National

1,294

1

National

6,500

1

Singapore Singapore Singapore Singapore Singapore Singapore Singapore

Chinese (Simplified) English English English English English English

Lianhe Zaobao Sunday Straits Times Time Economist International Herald Tribune Wall Street Journal Newsweek

National

191,300

2

National

399,000

1

National

37,500

1

National

15,503

1

National

10,351

1

Regional

11,933

1

National

31,837

1

South Africa South Africa South Africa South Africa South Africa South Africa

English English Afrikaans English English English

Sunday Times Cape Argus Rapport Time Economist Newsweek

National

503,852

2

Regional

313,022

1

National

71,081

1

National

55,187

1

National

8,238

1

National

3,917

1

South Korea South Korea South Korea South Korea South Korea South Korea South Korea South Korea South Korea

Korean Korean Korean English English English English English Korean

Chosun Ilbo Joonang Ilbo Donga Ilbo Time Economist International Herald Tribune Wall Street Journal Newsweek Newsweek Hankuk Pan

National

2,668,700

1

National

2,225,000

1

National

2,310,000

1

National

31,000

1

National

7,260

1

National

19,729

1

Regional

7,806

1

National

7,413

1

National

96,000

1

Spain Spain Spain Spain Spain Spain Spain Spain Spain

Spanish Spanish Spanish Spanish English English English English English

El Pais El Mundo La Vanguardia ABC Time Economist International Herald Tribune Wall Street Journal Newsweek

National

436,444

2

National

336,256

1

Regional

212,202

1

National

302,213

1

National

14,119

1

National

13,257

1

National

6,229

1

Regional

4,118

1

National

3,058

1

Sweden Sweden Sweden Sweden Sweden Sweden Sweden

Swedish Swedish English English English English English

Dagens Nyheter Sydsvenska Dagbladet Time Economist International Herald Tribune Wall Street Journal Newsweek

National

370,500

2

Regional

208,000

1

National

16,671

1

National

9,285

1

National

2,305

1

Regional

652

1

National

2,911

1

Switzerland Switzerland Switzerland Switzerland Switzerland Switzerland Switzerland Switzerland

German French Italian English English English English English

Tages Anzeiger Tribune de Geneve Correire del Ticino Time Economist International Herald Tribune Wall Street Journal Newsweek

Regional

235,569

1

Regional

76,085

1

Regional

39,298

1

National

9,470

1

National

16,748

1

National

10,278

1

Regional

4,357

1

National

3,740

1

Attachment K- Paid Media Schedule

Taiwan Taiwan Taiwan Taiwan Taiwan Taiwan Taiwan

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08

Chinese (Traditional) China Times Chinese (Traditional) United Daily Nation

English

Time

English

Economist

English

International Herald Tribune

English

Wall Street Journal

English

Newsweek

Page 296 of 323

National National National National National Regional National

1,950,000 1,305,000
13,000 4,249 3,015 4,271 9,049

Thailand Thailand Thailand Thailand Thailand Thailand Thailand Thailand

Thai Thai English English English English English English

Thai Rath Khao Sod Bangkok Post Time Economist International Herald Tribune Wall Street Journal Newsweek

National National National National National National Regional National

1,000,000 800,000 250,000 14,000
6,528 6,675 7,015 16,271

Turkey Turkey Turkey Turkey Turkey Turkey Turkey

Turkish Turkish Turkish English English English English

Hurriyet Milliyet Sabah Economist International Herald Tribune Wall Street Journal Newsweek

National National National National National Regional National

550,000 250,000 1,000,000
3,427 1,376 702 2,026

Ukraine Ukraine

Ukrainian English

Fakty I Komentarii Economist

National National

1,100,000 455

United Kingdom United Kingdom United Kingdom United Kingdom United Kingdom United Kingdom United Kingdom United Kingdom United Kingdom

English English English English English English English English English

Sunday Times (London Times) Daily Telegraph Daily Mail News of the World Sunday Mail (Scotland) Economist International Herald Tribune Wall Street Journal Newsweek

National National National National National National National Regional National

1,231,153 904,955 2,310,806 3,124,622 468,444 182,539 10,721 17,028 51,376

Venezuela Venezuela Venezuela Venezuela Venezuela

Spanish Spanish English Spanish English

El Nacional El Universal Economist Wall Street Journal Newsweek
Tier 3 Media

National National National Regional National

240,000 220,000
79 90,000
351

Algeria Algeria Algeria

Country

Language Arabic English Arabic

Title Al Khabar Economist Newsweek Bil Logha Al-Arabia

Distribution National National National

Circulation 400,000 8 750

Belarus Belarus Belarus

Belarusian Russian English

Vecherni Minsk Argumenty i Fakty Economist

National National National

65,000 95,000
15

Bulgaria Bulgaria Bulgaria

Bulgarian Bulgarian English

Trud 24 Chasa Economist

National National National

230,000 170,000
510

Cameroon Cameroon Cameroon

French English English

Le Mesager Cameroon Tribune Economist

National National National

12,000 45,000
13

Costa Rica Costa Rica Costa Rica Costa Rica Costa Rica

Spanish Spanish English Spanish English

La Nacion Al Dia Economist Wall Street Journal Newsweek

National National National Regional National

142,366 35,000
522 14,000
270

Croatia Croatia

Croatian Croatian

Jutarnji List Ve ernji List

National National

110,000 120,000

2 2 1 1 1 1 1
2 1 1 1 1 1 1 1
1 1 2 1 1 1 1
3 1
2 1 1 1 1 1 1 1 1
3 1 1 1 1
No of Insertions
3 1 1
2 1 1
1 1 1
1 2 1
2 1 1 1 1
1 1

Attachment K- Paid Media Schedule

Croatia Croatia Croatia

Case 1:05-cCvro-a0tia8n136-DC D2o4cSuatma ent 56 Filed 10/28/08 PaNgateion2a9l 7 of 312503,000

1

English

Economist

National

846

1

English

International Herald Tribune

National

168

1

Dominican Republic Dominican Republic Dominican Republic Dominican Republic

Spanish English Spanish English

Listin Diario Economist Wall Street Journal Newsweek

National

88,000

3

National

16

1

Regional

90,000

1

National

26

1

Ecuador Ecuador Ecuador Ecuador

Spanish English Spanish English

El Universo Economist Wall Street Journal Newsweek

National

250,000

3

National

113

1

Regional

93,600

1

National

135

1

El Salvador El Salvador El Salvador El Salvador

Spanish English Spanish English

Prensa Grafica Economist Wall Street Journal Newsweek

National

125,000

3

National

22

1

Regional

110,000

1

National

25

1

Estonia Estonia Estonia Estonia Estonia

Estonian Estonian Estonian English English

Eesti Päevaleht SL Õhtuleht Postimees (Estonian edition) Economist International Herald Tribune

National

35,000

1

National

65,200

1

National

35,000

1

National

495

1

National

172

1

Guatemala Guatemala Guatemala Guatemala

Spanish English Spanish English

La Prensa Libre Economist Wall Street Journal Newsweek

National

85,000

3

National

70

1

Regional

27,000

1

National

67

1

Kazakhstan Kazakhstan Kazakhstan

Russian Kazakh English

Kazakhstanskaya Pravda Karavan Economist

National

105,000

1

National

225,000

1

National

224

1

Kenya Kenya Kenya

English English English

Daily Nation Economist Newsweek

National

225,000

2

National

1,704

1

National

1,781

1

Kuwait Kuwait Kuwait Kuwait Kuwait

Arabic Arabic English English Arabic

Al Watan Al-Rai Al-Aam Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National

91,726

2

National

80,000

1

National

302

1

National

1,758

1

National

15,000

1

Latvia Latvia Latvia

Latvian Russian English

Latvijas Av ze Neatkariga Rita Avize Economist

National

59,500

2

National

12,000

1

National

486

1

Lebanon Lebanon Lebanon Lebanon Lebanon

Arabic French English English Arabic

An Nahar L'Orient Le Jour Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National

62,000

1

National

23,000

1

National

650

1

National

52

1

National

1,500

1

Libya Libya Libya Libya Libya

Arabic Arabic English English Arabic

Al-Shams Al Fajer Jadeed Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National

40,000

1

National

40,000

1

National

127

1

National

74

1

National

500

1

Lithuania Lithuania

Lithuanian English

Lietuvos Rytas Economist

National

157,000

2

National

488

1

Luxembourg Luxembourg Luxembourg Luxembourg Luxembourg

French German English English English

La Voix du Luxembourg Luxemburger Wort Economist International Herald Tribune Wall Street Journal

National

90,000

1

National

90,000

1

National

1,671

1

National

669

1

Regional

343

1

Morocco Morocco

Arabic French

Al Ahdath Maghribia Le Matin du Sahara

National

95,000

1

National

100,000

1

Attachment K- Paid Media Schedule

Morocco Morocco Morocco Morocco

Case 1:05-cEnvg-l0ish8136-DC DEococnuommiset nt 56 Filed 10/28/08 PaNgateion2a9l 8 of 322398

1

English

International Herald Tribune

National

279

1

English

Newsweek

National

1,124

1

Arabic

Newsweek Bil Logha Al-Arabia

National

1,500

1

Nigeria Nigeria Nigeria Nigeria

English English English English

Daily Champion The Punch Economist Newsweek

National

130,000

1

National

120,000

1

National

2,676

1

National

1,194

1

Oman Oman Oman Oman Oman Oman

Arabic Arabic Arabic English English Arabic

Al Watan Oman Arabic Daily Al Shabiba Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National

40,585

1

National

41,721

1

National

38,164

1

National

200

1

National

1,191

1

National

1,500

1

Pakistan Pakistan Pakistan Pakistan Pakistan Pakistan Pakistan

English Urdu Punjabi English English English English

Dawn Daily Jang Daily Bhulekha Economist International Herald Tribune Wall Street Journal Newsweek

National

180,000

1

National

820,000

2

National

12,000

1

National

3,135

1

National

120

1

Regional

47

1

National

7,822

1

Peru Peru Peru Peru

Spanish English Spanish English

El Comercio Economist Wall Street Journal Newsweek

National

150,000

2

National

517

1

Regional

165,000

1

National

304

1

Serbia Serbia Serbia Serbia

Serbian Serbian English English

Blic Vecernji Novosti Economist International Herald Tribune

National

200,000

1

National

230,000

1

National

389

1

National

80

1

Slovakia Slovakia Slovakia Slovakia Slovakia

Slovak Slovak English English English

Novy Cas Dennik Sme Economist International Herald Tribune Wall Street Journal

National

330,000

2

National

146,000

1

National

492

1

National

64

1

Regional

98

1

Slovenia Slovenia Slovenia Slovenia

Slovenian Slovenian English English

Slovenske Novice Nedeljski Dnevnik Economist International Herald Tribune

National

101,350

1

National

150,000

1

National

732

1

National

100

1

Sri Lanka Sri Lanka Sri Lanka Sri Lanka Sri Lanka

Sinhala English English English English

Sunday Lankadeepa Sunday Observer Economist International Herald Tribune Newsweek

National

345,000

1

National

170,000

1

National

769

1

National

85

1

National

2,254

1

Sudan Sudan

Arabic English

Al Rai El Aam Economist

National

45,000

3

National

42

1

Syria Syria Syria Syria Syria

Arabic Arabic English English Arabic

Tishreen Al Thawra Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National

75,000

2

National

80,000

1

National

93

1

National

133

1

National

750

1

Tunisia Tunisia Tunisia Tunisia

Arabic French English Arabic

Assabah Le Temps Economist Newsweek Bil Logha Al-Arabia

National

65,000

2

National

45,000

1

National

291

1

National

750

1

United Arab Emirates United Arab Emirates United Arab Emirates United Arab Emirates United Arab Emirates

Arabic English English English Arabic

Al Khaleej Gulf News Economist Newsweek Newsweek Bil Logha Al-Arabia

National

145,000

2

National

105,000

1

National

3,816

1

National

1,136

1

National

2,500

1

Attachment K- Paid Media Schedule

Uruguay Uruguay Uruguay

Case 1:05-cv-08136-DC
Spanish English
English

Document 56
El Pais Economist Newsweek

Filed 10/28/08

Page 299 of 323

National National National

98,000 234 71

Vietnam Vietnam Vietnam Vietnam Vietnam Vietnam

Vietnamese Vietnamese English English English English

Tuoi Tre Thanh Hien Vietnam News Economist International Herald Tribune Newsweek
Tier 4 Media

National National National National National National

300,000 300,000 30,000
525 279 728

Albania Albania

Country

Language Albanian English

Zeri I Populit Economist

Title

Distribution National National

Circulation 30,000 183

Angola Angola

Portuguese English

Jornal de Angola Economist

National National

40,000 21

Armenia Armenia

Armenian English

Yerkir Economist

National National

5,000 22

Azerbaijan Azerbaijan

Azerbaijani English

Yeni Zaman Economist

National National

15,000 31

Bahrain Bahrain Bahrain Bahrain

Arabic English English Arabic

Al Ayam Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National National National National

33,000 366 58 1,000

Bangladesh Bangladesh Bangladesh

Bengali English English

Daily Ittefaq Economist Newsweek

National National National

247,320 642 741

Benin Benin

French English

La Nation Economist

National National

5,000 12

Bolivia Bolivia Bolivia

Spanish English English

El Diario Economist Newsweek

National National National

57,500 79 122

Bosnia & Herzegovinia Bosnia & Herzegovinia Bosnia & Herzegovinia

Bosnian Bosnian English

Dnevni Avaz Slobodna Bosna Economist

National National National

40,000 28,000
179

Botswana Botswana

English English

Botswana Guardian Economist

National National

25,000 150

Burkina Faso Burkina Faso

French English

L'Observateur Paalga Economist

National National

8,000 3

Burundi Burundi

French English

Le Renouveau Economist

National National

10,000 9

Cambodia Cambodia Cambodia

English Khmer English

Phnom Penh Post Rasmei Kampuchea Economist

National National National

10,000 15,000
308

Cent African Rep Cent African Rep

French English

Le Citoyen Economist

National National

1,500 1

Chad

French

N'Diamena Hebdo

National

5,000

Congo, Dem Rep of Congo, Dem Rep of Congo, Dem Rep of

Arabic French English

L'Avenir Le Potentiel Economist

National National National

10,000 10,000
2

Congo, Republic Congo, Republic Congo, Republic

French French English

Tam Tam D'Afrique Le Defi Africain Economist

National National National

4,000 2,000
2

2 1 1
1 1 1 1 1 1
No of Insertions
2 1
2 1
2 1
2 1
2 1 1 1
2 1 1
2 1
2 1 1
1 1 1
2 1
2 1
2 1
1 1 1
2 1
2
1 1 1
1 1 1

Attachment K- Paid Media Schedule

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 300 of 323

Cote d'Ivoire Cote d'Ivoire

French English

Fraternite Matin Economist

National

40,000

2

National

4

1

Cyprus Cyprus Cyprus

Greek English English

O Phileleftheros Economist International Herald Tribune

National

70,000

1

National

842

1

National

164

1

Georgia Georgia Georgia

Georgian Russian English

Georgia Times Sakartvelos Respublika Economist

National

10,000

1

National

40,000

1

National

34

1

Ghana Ghana

English English

Daily Graphic Economist

National

100,000

2

National

511

1

Guinea Guinea

French English

Horoya Economist

National

10,000

2

National

3

1

Haiti Haiti Haiti Haiti

French Creole (Haitian) English English

Le Nouvelliste Le Nouvelliste Economist Newsweek

National

15,000

1

National

15,000

1

National

11

1

National

55

1

Honduras Honduras Honduras Honduras

Spanish English Spanish English

La Prensa Economist Wall Street Journal Newsweek

National

60,000

2

National

14

1

Regional

66,000

1

National

37

1

Iceland Iceland Iceland

Icelandic English English

Morgunbladid Economist International Herald Tribune

National

93,000

2

National

646

1

National

114

1

Jamaica Jamaica Jamaica

English English English

Daily Gleaner Economist Newsweek

National

115,000

2

National

337

1

National

287

1

Jordan Jordan Jordan Jordan Jordan

Arabic Arabic English English Arabic

Al Dustour Al Rai Economist International Herald Tribune Newsweek Bil Logha Al-Arabia

National

90,500

1

National

100,000

1

National

554

1

National

197

1

National

1,500

1

Kyrgyzstan Kyrgyzstan Kyrgyzstan

Russian Russian English

Sovetik Kyrgyzstan Slovo Kyrgyzstana Economist

National

162,297

1

National

111,000

1

National

91

1

Laos Laos Laos Laos

French Lao English English

Renovateur Vientiane Mal Economist Newsweek

National

1,000

1

National

5,000

1

National

41

1

National

6

1

Lesotho Lesotho

English English

Public Eye Economist

National

20,500

2

National

7

1

Liberia Liberia

English English

The News Economist

National

3,500

2

National

28

1

Macedonia Macedonia Macedonia

Macedonian Albanian English

Dnevnik Koha Economist

National

60,000

1

National

27,000

1

National

170

1

Madagascar Madagascar Madagascar

French English English

Midi Madagascar (Madagasikara) Midi Madagascar (Madagasikara) Economist

National

35,000

1

National

35,000

1

National

14

1

Malawi Malawi

English English

Malawi News Economist

National

22,000

2

National

71

1

Mali

French

Les Echos

Mali

English

Economist

National

25,000

2

National

5

1

Attachment K- Paid Media Schedule

Mauritania

Case 1:05-cArva-b0ic8136-DC DHoocrizuomns ent 56 Filed 10/28/08 PaNgateion3a0l 1 of 323,3000

2

Mauritania

English

Economist

National

2

1

Moldova Moldova Moldova

Romanian Russian English

Jurnal de Chisinau Moldavskie Vedomosti Economist

National

5,000

1

National

5,000

1

National

21

1

Mongolia Mongolia Mongolia

Khalkha Mongol English English

Daily Mirror Economist Newsweek

National

20,000

2

National

42

1

National

102

1

Mozambique Mozambique

Portuguese English

Noticias Economist

National

16,000

2

National

26

1

Namibia Namibia

English English

The Namibian Economist

National

28,000

2

National

101

1

Nicaragua Nicaragua Nicaragua Nicaragua

Spanish English Spanish English

La Prensa Economist Wall Street Journal Newsweek

National

38,000

2

National

21

1

Regional

40,017

1

National

25

1

Niger Niger

French English

Le Republicain Economist

National

6,000

2

National

5

1

Panama Panama Panama Panama Panama

Spanish Spanish English Spanish English

Critica El Siglio Economist Wall Street Journal Newsweek

National

60,000

1

National

45,000

1

National

80

1

Regional

41,129

1

National

161

1

Papua New Guinea Papua New Guinea

English English

Post-Courier Economist

National

7,000

2

National

61

1

Paraguay Paraguay Paraguay

Spanish English English

Ultima Hora Economist Newsweek

National

120,000

2

National

48

1

National

30

1

Qatar Qatar Qatar

Arabic English Arabic

Al Sharq Economist Newsweek Bil Logha Al-Arabia

National

45,000

2

National

359

1

National

750

1

Rwanda Rwanda Rwanda

English Kinyarwanda English

New Times Imvaho Economist

National

5,000

1

National

8,000

1

National

22

1

Senegal Senegal

French English

Le Soleil Economist

National

40,000

2

National

23

1

Sierra Leone Sierra Leone

English English

New Vision Economist

National

1,500

2

National

15

1

Somalia

English

Somaliland Times

National

1,000

2

Tajikistan Tajikistan

Tajik English

Turkmenskaya Iskra Economist

National

62,946

2

National

12

1

Tanzania Tanzania Tanzania

English Swahili English

Guardian Nipashe Economist

National

25,000

1

National

39,000

1

National

466

1

Togo Togo

French English

Togo-Press Economist

National

10,000

2

National

5

1

Trinidad & Tobago Trinidad & Tobago Trinidad & Tobago

English English English

Trinidad Express Economist Newsweek

National

78,000

2

National

222

1

National

173

1

Turkmenistan Turkmenistan Turkmenistan

Turkmen Turkmen English

Adalat Turkemnistan Economist

National

84,051

1

National

73,170

1

National

3

1

Attachment K- Paid Media Schedule

Uganda Uganda

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 302 of 323

English

New Vision

National

45,000

English

Economist

National

370

Uzbekistan Uzbekistan

Russian English

Trud 7 Economist

National National

65,000 7

Yemen Yemen Yemen

Arabic English Arabic

Al Thawra Economist Newsweek Bil Logha Al-Arabia

National National National

60,000 25
1,500

Zambia Zambia

English English

Times of Zambia Economist

National National

45,000 264

Zimbabwe Zimbabwe

English English

Sunday Mail Economist
Tier 5 Media

National National

120,000 190

Andorra Andorra

Country

Language Catalan English

Diari Bondia Economist

Title

Distribution National National

Circulation 8,000 38

Anguilla

English

The Anguillian

National

1,800

Antigua and Barbuda Antigua and Barbuda

English English

The Outlet Economist

National National

5,000 5

Aruba Aruba Aruba Aruba

English Papiamento English English

The News Bon Dia Economist Newsweek

National National National National

7,500 19,000
6 100

Bahamas Bahamas Bahamas

English English English

The Nassau Guardian Economist Newsweek

National National National

12,000 100 40

Barbados Barbados Barbados

English English English

The Daily Nation Economist Newsweek

National National National

27,000 121 204

Belize Belize Belize

English English English

Belize Times Economist Newsweek

National National National

6,000 77 49

Bermuda Bermuda Bermuda

English English English

Royal Gazette Economist Newsweek

National National National

19,500 232 1

British Virgin Islands British Virgin Islands

English English

BVI Beacon Economist

National National

6,500 442

Brunei Brunei Brunei Brunei

English Malay English English

Borneo Bulletin Media Permata Economist Newsweek

National National National National

25,000 15,000
132 933

Cape Verde Cape Verde

Portuguese English

Expresso das Ilhas Economist

National National

6,000 10

Cayman Islands Cayman Islands

English English

Caymanian Compass Economist

National National

12,000 85

Comoros

Arabic

Al Watwan

National

3,000

Cook Islands Cook Islands

English English

Cook Island News Economist

National National

2,300 3

Djibouti Djibouti

French English

La Nation Economist

National National

4,300 1

Dominica

English

The Chronicle

National

5,000

2 1
2 1
2 1 1
2 1
2 1
No of Insertions
1 1
1
1 1
1 1 1 1
1 1 1
1 1 1
1 1 1
1 1 1
1 1
1 1 1 1
1 1
1 1
1
1 1
1 1
1

Attachment K- Paid Media Schedule

Dominica

Case 1:05-cEnvg-l0ish8136-DC DEococnuommiset nt 56 Filed 10/28/08 PaNgateion3a0l 3 of 32133

1

East Timor East Timor

Indonesian English

Suara Timor Lorosae Economist

National

1,000

1

National

7

1

Equatorial Guinea

Spanish

La Gaceta de Guinea Ecuatorial

National

7,000

1

Falkland Islands Falkland Islands

English English

Penguin News Economist

National

1,600

1

National

4

1

Faroe Islands Faroe Islands

Faroese English

Dimmalaetin Economist

National

20,000

1

National

25

1

Fiji

English

Fiji Times

Fiji

English

Economist

National

31,000

1

National

122

1

French Guiana

French

France Guyane

National

8,000

1

French Polynesia French Polynesia

French English

La Depeche de Tahiti Economist

National

18,000

1

National

14

1

Gabon

French

L'Union

National

20,000

1

Gambia Gambia

English English

Daily Observer Economist

National

5,000

1

National

61

1

Gibraltar Gibraltar

English English

Gibraltar Chronicle Economist

National

3,500

1

National

85

1

Greenland Greenland Greenland

Danish Danish English

Sermitsiak Atuagagdliutit Gronlansposten Economist

National

4,000

1

National

4,500

1

National

15

1

Grenada Grenada

English English

Grenada Informer Economist

National

6,000

1

National

15

1

Guadeloupe Guadeloupe

French English

France Antilles Economist

National

70,000

1

National

1

1

Guinea-Bissau Guinea-Bissau

Portuguese English

Voz da Guine Economist

National

6,000

1

National

2

1

Guyana Guyana Guyana

English English English

Guyana Chronicle Economist Newsweek

National

24,000

1

National

74

1

National

160

1

Isle of Man

English

Isle of Man Examiner

National

15,500

1

Jersey & Guernsey

English

Guernsey Press and Star

National

16,000

1

Kiribati Kiribati

English English

Te Uekera Economist

National

1,500

1

National

2

1

Liechtenstein Liechtenstein

German English

Liechtensteiner Volksbratt Economist

National

20,000

1

National

55

1

Macau Macau Macau Macau

Chinese (Traditional) English English English

Jornal Va Kio Economist Wall Street Journal Newsweek

National

45,000

1

National

127

1

Regional

168

1

National

844

1

Maldives Maldives Maldives

English English English

Haveeru(website) Economist Newsweek

National

na

1

National

32

1

National

247

1

Malta Malta Malta

English Maltese English

Times L'Orrizont Economist

National

20,000

1

National

36,000

1

National

753

1

Marshall Islands Marshall Islands

English English

Marshall Islands Journal Economist

National

3,700

1

National

2

1

Attachment K- Paid Media Schedule

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 304 of 323

Martinique Martinique

French English

France Antilles Economist

National

70,000

1

National

7

1

Mauritius Mauritius Mauritius

French English English

Le Mauricien Economist Newsweek

National

45,000

1

National

468

1

National

1,306

1

Mayotte

French

Haraka Info

National

2,000

1

Micronesia

English

The Kaselehlie Press

National

1,000

1

Monaco Monaco

French English

Nice-Matin Economist

National

118,566

1

National

184

1

Montenegro Montenegro

Serbian English

Pobjeda Economist

National

250,000

1

National

40

1

Montserrat Montserrat

English English

Monserrat Reporter Economist

National

1,000

1

National

5

1

Nauru

English

Nauru Bulletin

National

700

1

Netherlands Antilles Netherlands Antilles Netherlands Antilles

Papiamento English English

Extra Economist Newsweek

National

25,000

1

National

205

1

National

105

1

New Caledonia New Caledonia

French English

Les Nouvelles Caledoniennes Economist

National

26,000

1

National

10

1

Niue

English

Niue Star

National

500

1

Palau

English

Palau Horizon

National

1,500

1

Palestinian Territories

Arabic

Al Quds (Jerusalem)

National

65,000

1

Reunion Reunion

French English

Le Journal de L'ille de la Reunion Economist

National

35,000

1

National

4

1

Saint Helena Saint Helena

English English

St. Helena Herald Economist

National

1,200

1

National

1

1

Saint Kitts and Nevis Saint Kitts and Nevis

English English

Democrat Economist

National

3,500

1

National

8

1

Saint Lucia Saint Lucia

English English

St Lucia Star Economist

National

8,000

1

National

27

1

Saint Pierre & Miquelon

French

L’Echo des Caps

National

1,000

1

Saint Vincent & the Grenadines Saint Vincent & the Grenadines

English English

The Daily Herald Economist

National

9,000

1

National

16

1

Sao Tome and Principe

Portuguese

Vitrina

National

1,500

1

Seychelles Seychelles

English English

Seychelles Nation Economist

National

10,000

1

National

26

1

Solomon Islands Solomon Islands

English English

The Soloman Star Economist

National

1,500

1

National

9

1

Suriname Suriname Suriname

Dutch English English

De Ware Tijd Economist Newsweek

National

22,000

1

National

23

1

National

1

1

Swaziland Swaziland

English English

Times of Swaziland Economist

National

26,000

1

National

127

1

Tokelau

English

Le Samoa Post

National

5,000

1

Tonga

English

Tonga Chronicle

National

10,000

1

Attachment K- Paid Media Schedule

Tonga

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 305 of 323

English

Economist

National

8

1

Turks & Caicos Turks & Caicos

English English

Turks and Caicos Sun Economist

National

TBC

1

National

1

1

Tuvalu Tuvalu

English English

Tuvalu Echoes Economist

National

260

1

National

1

1

Vanuatu Vanuatu

English English

Daily Post Economist

National

5,000

1

National

13

1

Wallis and Futuna

French

Journal Officiel

National

TBC

1

Global media Overview

Consumer Magazines Publication

Circulation

Issue Frequency

Unit

Plan

Unit Size Dimensions Frequency

Time (4 Int'l English

1,126,000

weekly

Full Pg

1

language editions)

The Economist

1,260,457

weekly

Full Pg

1

Newsweek (11 English

language & local language

1,091,000

weekly

Full Pg

1

editions)

Total

3,477,457

3

National Newspapers
Publication Wall Street Journal: Europe/Asia, U.S., Americas NY Times Group*

Circulation 3,542,036 2,083,124

Frequency Mon-Fri Mon-Thu

Unit

Plan

Unit Size Dimensions Frequency

1/4 Page 5.35" x 10.5"

1

5-11/16" x 10-

1/4 Page

1

1/2"

*NYTimes Group includes: International Herald Tribune, El Pais, The Observer, La Republica, Suddentsche Zeitung and Le Monde

Total

5,625,160

2

Online
International KeyWord Search Google Content Network

# of Languages 44 44

# of Est Impressions TBD TBD

Unit Size 85
characters Text & banner

Unit Dimensions

Plan Frequency minimum 1
month minimum 1
month

International Print and Online Trade media Overview

Trade Publications Country

# of total Pubs

Unit

Plan

Unit Size Dimensions Frequency

Australia China Finland France Germany Mexico Netherlands Sweden Taiwan United Kingdom Total
Trade Websites
Country

3 2 1 1 3 1 1 1 1 5 19
# of total Websites

Full Pg b/w

1

Full Pg b/w

2

Full Pg b/w

1

Full Pg b/w

1

Full Pg b/w

1

Full Pg b/w

1

Full Pg b/w

1

Full Pg b/w

1

Full Pg b/w

1

Full Pg b/w

1

Unit

Plan

Unit Size Dimensions Frequency

Australia

2

Banner

1 month

Attachment K- Paid Media Schedule

Austria

Case 1:05-cv-08136-DC

France

Germany

Greece

Mexico

Netherlands

Poland

Romania

United Kingdom

Total

Document 56
1 1 3 1 1 1 1 1 5 17

Filed 10/28/08

Page 306 of 323
Banner Banner Banner Banner Banner Banner Banner Banner Banner

1 month 1 month 1 month 1 month 1 month 1 month 1 month 1 month 1 month

Country Australia Australia Australia

International Trade Publications

Publication Name

Frequency

Australian Book Review

10 times/year

Southerly

Monthly

Quadrant

10 times/year

Brief Description
Australia's oldest and premier literary review, Australian Book Review publishes reviews, essays, commentaries, and creative writing.
Australia's oldest literary journal, Southerly publishes a wide range of poetry, essays and commentaries from writers and scholars all over
Australia and New Zealand.
Quadrant is the leading Australia-based general intellectual journal of ideas, literature, poetry, and
historical and political debate.

China China Finland France Germany Germany Germany Mexico Netherlands
Sweden
Taiwan United Kingdom United Kingdom United Kingdom

China Author Record Author's Digest
Parnasso
La Revue Des Livres Pour Enfants
Buchreport Boersenblatt BuchMarkt
Letras Libres
Boekblad
Svensk Bokhandel
UNITAS Magazine
Literary Review London Review of
Books Times Literary
Supplement

Monthly 2 times/week 7 times/year
Monthly Monthly Weekly Monthly Monthly 23 times/year
21 times/year
Monthly Monthly Bi-weekly Weekly

China Author Record is distributed to professional and non-professional writers across China.
Published by the Authors Association of China, Author's Digest is distributed to mostly state-
owned enterprises.
Finland’s leading literary magazine, Parmasso is read by professionals in the fields of reading and
writing.
La Revue Des Livres Pour Enfants is published for children's book authors, distributors and libraries.
Published monthly with wide-ranging analysis, Buchreport covers book publishing, and book
author trends. The leading trade magazine for the German book
industry, Boersenblatt targets publishers, book sellers and librarians.
BuchMarkt covers ideas, practical tips, background, trends and personalities in the book
market.
Letras Libres is Mexico's leading literature magazine.
Boekblad provides information for book publishers in the Netherlands and parts of
Belgium.
Svensk Bokhandel provides news, features, analysis, debate articles and essays on books
and literary subjects.
UNITAS Magazine is a literary magazine introducing works from national and international
authors.
Literary Review is a review-based literary magazine.
London Review of Books is Europe’s largest literary magazine.
One of the world’s leading literary journals, the Times Literary Supplement provides reviews of
over 2,000 books a year, covering all fields.

Attachment K- Paid Media Schedule

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 307 of 323

United Kingdom United Kingdom

Australia Australia

Country

Austria France

Germany Germany

Germany Greece Mexico Netherlands
Poland Romania United Kingdom United Kingdom United Kingdom United Kingdom United Kingdom

The Bookseller Writers' News

Monthly Monthly

The number one magazine for the British book trade, The Bookseller contains the latest news and analysis and in-depth market data for book
publishing and retailing.
Writer's News is a bestselling publication for writers, covering writing competitions.

Website Name Weekly Book
Newsletter (WBN)
The Monthly

International Trade Websites Brief Description
The Weekly Book Newsletter website contains, among others, local and international book industry news, bestseller charts, publisher announcements, and industry notices.
The Monthly, the official website of Australia's leading current affairs magazine, publishes firstclass writing from the nation's best thinkers.

Wespennest

The Wespennest is the website of the Austrian Literary Essayist Journal.

Livres Hebdo

The Livres Hebdo website provides an overview of the publishing industry in France.

Buchreport Boersenblatt

The Buchreport website, targeting publishers and authors, covers interviews, backgrounds and trends in the book market.
The Boersenblatt website covers developments in the book industry and new book additions in the market.

BuchJournal

The BuchJournal website covers author interviews and independent editorials of literary works.

STIGMES

STIGMES is the website for Greece's most important local periodical.

Letras Libres

Lestras Libres is the website for Mexico's leading literature magazine.

Boekblad

The Boekblad website provides information for book publishers in the Netherlands and parts of Belgium.

FA-Art

FA-Art is the official website of Poland's literary magazine, FA-Art.

Dilema Veche

Dilema Veche is the website for the most important cultural newspaper in Romania.

Writers' & Artists' Yearbook
London Review of Books
Poetry Review
Writers' News
Literary Times Supplement

The Writers' & Artists' Yearbook website provides an extensive resourceful listing, serving writers and artists of all kinds.
The London Review of Books is the website for Europe’s largest literary magazine.
Poetry Review is the website for the Poetry Society's internationally-acclaimed poetry magazine.
Writer's News is the website for the U.K.'s bestselling publication for writers, covering writing competitions.
The Literary Times Supplement website provides reviews of over 2,000 books a year, covering all fields.

Attachment K- Paid Media Schedule

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 308 of 323 ATTACHMENT L

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 309 of 323
Attachment L to Settlement Agreement

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------x

The Authors Guild, Inc., Association of American

:

Publishers, Inc., et al.,

:

:

Plaintiffs,

:

:

v.

:

:

Google Inc.,

:

:

Defendant.

:

------------------------------------------------------------------------x

Case No. 05 CV 8136-JES

[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL

This matter is before the Court pursuant to the motion for final class certification and

final approval of a proposed class action settlement of the above-captioned case (the “Action”)

entered into between, on the one hand, Plaintiffs Paul Dickson, Joseph Goulden, Daniel

Hoffman, Betty Miles, and Herbert Mitgang (“Author Sub-Class Representative Plaintiffs”), and

The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon

& Schuster, Inc., and John Wiley & Sons, Inc. (“Publisher Sub-Class Representative Plaintiffs”)

(collectively “Representative Plaintiffs”), and, on the other hand, defendant Google Inc.

(“Google”). Plaintiffs, through their counsel, the firms of Boni & Zack LLC, Milberg LLP, and

Kohn, Swift & Graf, PC for the Author Sub-Class (“Author Sub-Class Counsel”), and the firm of

Debevoise & Plimpton LLP for the Publisher Sub-Class (“Publisher Sub-Class Counsel”)

(collectively “Class Counsel”), have moved for an Order approving the settlement of the Action

in accordance with a Settlement Agreement, dated October 28, 2008, between Plaintiffs and

Google (the “Settlement Agreement”). Having read and considered the Settlement Agreement

and having held a hearing on the fairness of the proposed Settlement, at which objectors to the

Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 310 of 323
Settlement could appear, and based upon familiarity with the files and proceedings in this matter, the Court finds that:
1. Unless otherwise specified, all defined terms herein shall have the same meaning as in the Settlement Agreement.
2. The Court preliminarily approved the Settlement Agreement by Order of _____________ (the “Preliminary Approval Order”).
3. Notice of the proposed Settlement has been timely disseminated in accordance with the terms of the Preliminary Approval Order, which authorized such notice. Such notice is the best practicable notice to be provided under the circumstances and satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and applicable standards of due process.
4. The issues as to liability and remedies in the Action are issues as to which there are substantial grounds for difference of opinion, and the proposed settlement of the Action constitutes a resolution of those issues that is fair, reasonable and adequate to the members of the Class and Sub-Classes certified herein.
Accordingly, it is hereby ORDERED as follows: 5. The Settlement Agreement is approved as fair, reasonable, and adequate pursuant to Rule 23 of the Federal Rules of Civil Procedure and in the best interest of the Class and SubClasses, and the parties are directed to consummate the Settlement Agreement in accordance with its terms. 6. The following Class (the “Settlement Class”) and two Subclasses, provisionally certified in the Preliminary Approval Order, are now finally certified for purposes of the Settlement only:
2
Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 311 of 323
Settlement Class
All Persons that, as of January 5, 2009, have a Copyright Interest in one or more Books or Inserts. All Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Settlement Class are Google, the members of Google’s Board of Directors and its executive officers.
Author Sub-Class
Members of the Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Settlement Class who are not members of the Publisher Sub-Class.
Publisher Sub-Class
Members of the Settlement Class that are (a) companies that publish books, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees.
7. The Court finds that (a) the Author Sub-Class is so numerous that joinder of all
members is impracticable; (b) there are questions of law and fact common to the Author Sub-
Class; (c) claims of the Author Sub-Class Representative Plaintiffs are typical of the claims of all
members of the Author Sub-Class; (d) the Author Sub-Class Representative Plaintiffs and
Author Sub-Class Counsel have fairly and adequately protected and will fairly and adequately
protect the interests of the Author Sub-Class; (e) Google has acted on grounds generally
applicable to the Author Sub-Class, making final injunctive relief appropriate respecting the
Author Sub-Class as a whole; (f) common questions of law and fact predominate over questions
affecting only individual members of the Author Sub-Class; and (g) a class action (with sub-
classes) is superior to other available methods for the fair and efficient adjudication of this
controversy.
8. The Court finds that (a) the Publisher Sub-Class is so numerous that joinder of all
members is impracticable; (b) there are questions of law and fact common to the Publisher Sub3
Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 312 of 323
Class; (c) claims of the Publisher Sub-Class Representative Plaintiffs are typical of the claims of all members of the Publisher Sub-Class; (d) the Publisher Sub-Class Representative Plaintiffs and Publisher Sub-Class Counsel have fairly and adequately protected and will fairly and adequately protect the interests of the Class; (e) Google has acted on grounds generally applicable to the Publisher Sub-Class, making final injunctive relief appropriate respecting the Publisher Sub-Class as a whole; (f) common questions of law and fact predominate over questions affecting only individual members of the Publisher Sub-Class; and (g) a class action (with sub-classes) is superior to other available methods for the fair and efficient adjudication of this controversy.
9. The Action is hereby dismissed, with prejudice and without costs except as provided in the Settlement Agreement.
10. This Final Judgment and Order of Dismissal shall forever bar (a) all Rightsholder Releasors from instituting, maintaining, prosecuting, assigning or collecting on any and all (i) Claims against any Google Releasee, Fully Participating Library Releasee, Cooperating Library Releasee, and Public Domain Library Releasee that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or to the negotiation or execution of this Settlement Agreement or the Library-Registry Agreements, (ii) Google Released Claims against any of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (iii) Fully Participating Library Released Claims against any of the Fully Participating Library Releasees, (iv) the Cooperating Library Released Claims against any of the Cooperating Library Releasees, (v) the Public Domain Library Released Claims against any of the Public Domain Library Releasees, and (vi) Other Library Released Claims against any of the Other Library Releasees, provided that no
4
Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 313 of 323
Rightsholder Releasor is barred from instituting, maintaining, prosecuting, assigning or collecting on any Other Library Released Claim against an Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, including without limitation, by participating in, or recovering as a result of, any class or representative action, whether under United States federal or state law, in which any such Google Released Claims, Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims, or Other Library Released Claims have been or may be brought, and (b) all Google Releasees, all Cooperating Library Releasees, all Fully Participating Library Releasees, all Public Domain Library Releasees and all Other Library Releasees from instituting, maintaining, prosecuting, assigning or collecting on, any and all Claims against any Rightsholder Releasor or Class Counsel that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or the negotiation and execution of this Settlement Agreement or the Library-Registry Agreements.
10. This Final Judgment and Order of Dismissal shall have the effect of a dismissal with prejudice of all Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims and Other Library Released Claims as though each Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Releasee and Other Library Releasee had been named a defendant in the Action, and this Final Judgment and Order of Dismissal shall bar all such Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims and Other Library Released Claims by any Rightsholder Releasor, provided that this Order shall have no such effect with respect to, and shall not bar, any Other Library Released Claims against any
5
Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 314 of 323
Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy.
11. There is no just reason for delay and the judgment of dismissal with prejudice as to Google shall be final.
12. The Settlement Agreement and any proceedings taken pursuant thereto are not, and should not in any event be: (a) offered or received as evidence of a presumption, concession or admission on the part of Plaintiffs, Google, Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries, Other Libraries, any member of the Class, or any other person; or (b) offered or received as evidence of a presumption, concession or admission of any liability, fault, wrongdoing or other dereliction of duty.
13. Consummation of the Settlement shall proceed as described in the Settlement Agreement, and the Court hereby reserves jurisdiction over the subject matter and as to each party to the Settlement Agreement with respect to the interpretation and implementation of the Settlement Agreement for all purposes, including enforcement of any of the terms thereof at the instance of any party and resolution of any disputes that may arise relating in any way to, or arising from, the implementation of the Settlement Agreement or the implementation of this Order.
14. Attached hereto is a list of Persons who timely excluded themselves from the Settlement. Those Persons are not bound by any terms in this Order.
15. Attorneys’ fees and reimbursement of expenses to Counsel for the Author SubClass in the total amount of _________________ are hereby approved and awarded.
16. At any time after the date of this Final Judgment and Order of Dismissal but prior to the Effective Date, Plaintiffs and Google may, by written agreement, amend the Settlement
6
Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 315 of 323
Agreement without notice to or approval of the Court, but only if such amendment is not materially inconsistent with this Order and does not impair the rights of the Settlement Class under the Settlement Agreement. After the Effective Date, the Registry and Google may, by written agreement, amend this Settlement Agreement without notice to or approval of the Court, but only if such amendment does not impair the rights of the Settlement Class under the Settlement Agreement.
17. Pursuant to the terms hereof, final judgment shall be entered as provided herein. DATED this ____________ day of ____________, 2009.

____________________________________

Honorable

John E. Sprizzo,

United

States District Judge

7
Attachment L-[Proposed] Final Judgment And Order Of Dismissal

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 316 of 323 ATTACHMENT M

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page A31tt7acohfm3e2n3t M to Settlement Agreement
SETTLEMENT AGREEMENT BETWEEN PUBLISHERS AND GOOGLE This Settlement Agreement (the “Agreement”) is made as of October 28, 2008 by
and among plaintiffs The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc. (collectively, the “Publishers”) and defendant Google Inc. (“Google”) (each, a “Party” and, collectively, the “Parties”).
WHEREAS, on or about October 19, 2005, the Publishers filed a complaint against Google for copyright infringement in the United States District Court for the Southern District of New York captioned The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (JES) (the “Action”) arising out of, inter alia, Google’s unauthorized reproduction of books in which the Publishers own copyright interests; and
WHEREAS, Google raised various defenses and denials in response to the allegations in the Action; and
WHEREAS, the Publishers also are named as representative plaintiffs in an amended class action complaint against Google for copyright infringement that is being filed contemporaneously herewith in the United States District Court for the Southern District of New York captioned The Authors Guild v. Google Inc., 05 Civ 8136 (JES) (the “Class Action”) and is brought on behalf of copyright owners in books reproduced by Google without authorization; and
WHEREAS, Google raised various defenses and denials in response to the allegations in the Class Action; and
Attachment M-Settlement Agreement Between Publishers and Google

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 318 of 323
WHEREAS, the Parties, and other plaintiffs in the Class Action, entered into a settlement agreement (the “Class Action Settlement”), which is being filed contemporaneously herewith in the United States District Court for the Southern District of New York, to settle the claims asserted in the Class Action; and
WHEREAS, in order to avoid the costs and uncertainties of litigation, the Parties desire to settle all claims asserted in the Action;
NOW, THEREFORE, in consideration of the mutual covenants set forth below, the Parties agree as follows:
1. Google shall make a settlement payment to the Association of American Publishers, Inc. (the “AAP”) in the total amount of fifteen million five hundred thousand United States dollars (U.S. $15,500,000) (the “AAP Payment”), to settle the claims in the Action, to reimburse the AAP for attorneys’ fees and costs and to establish a fund to serve the interests of both publishers and authors. Within ten (10) business days after the Effective Date (as defined in the Class Action Settlement), Google shall make the AAP Payment by wire transfer to the AAP, as the AAP shall direct.
2. None of the Publishers are entitled to any part of the AAP Payment and the AAP shall pay no part of the AAP Payment to any of the Publishers.
3. The Publishers’ releases, as set forth in the Class Action Settlement, shall be effective on the Effective Date, provided that Google pays, and the AAP receives, the AAP Payment in accordance with the terms herein.
4. Notwithstanding anything in this Agreement, the Publishers have and retain all rights that they have under the Class Action Settlement.
2
Attachment M-Settlement Agreement Between Publishers and Google

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 319 of 323
5. The Parties shall file with the Court, within five (5) business days after the AAP’s receipt of the AAP Payment, a Stipulation and Order of Dismissal with Prejudice in the form attached hereto as Exhibit A.
6. The Parties agree to keep confidential all information received by one Party from any other Party during the course of discovery in the Action, and shall make no disclosure thereof to any third party except as provided in this Agreement.
7. This Agreement supersedes all previous arrangements or understandings, whether written or oral, and contains the entire agreement of the Parties with respect to the manner in which the Action will be dismissed.
8. This Agreement may be modified, varied or otherwise amended only by a writing, of even or subsequent date hereto, signed by the Parties.
9. This Agreement and the settlement incorporated herein is not and shall not be construed as an admission of liability by any Party.
10. This Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against any Party.
11. Each individual signing this Agreement warrants and represents that s/he is duly authorized to execute this Agreement on behalf of the Party for which s/he signs.
12. The Parties agree that the Court shall retain jurisdiction over any dispute arising from or relating to this Agreement.
13. This Agreement shall be governed by the laws of the State of New York, exclusive of its conflict of laws principles.
3
Attachment M-Settlement Agreement Between Publishers and Google

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 320 of 323 14. This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one agreement. 15. Executed originals of this Agreement may be delivered by facsimile or by
email. Faxed signatures or signatures transmitted by email shall be considered originals.
4
Attachment M-Settlement Agreement Between Publishers and Google

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 321 of 323

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 322 of 323

Bruce P. Keller (BK 9300) Jeffrey P. Cunard James J. Pastore, Jr. (JP 3176) Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 Attorneys for Plaintiffs

EXHIBIT A

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------x

THE MCGRAW-HILL COMPANIES, INC.,

:

PEARSON EDUCATION, INC., PENGUIN

:

GROUP (USA) INC., SIMON & SCHUSTER, :

INC., and JOHN WILEY & SONS, INC.,

:

:

Plaintiffs

:

:

v.

:

:

GOOGLE INC.,

:

:

Defendant.

:

:

------------------------------------x

05 Civ. 8881 (JES)
STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE
FILED ELECTRONICALLY

IT IS HEREBY STIPULATED by and among, on the one hand, The McGrawHill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc. (collectively, the “Publishers”), and, on the other hand, defendant Google Inc. (“Google”), by their undersigned counsel, as follows:
1. Any and all claims asserted herein by the Publishers shall be dismissed with prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
6
Attachment M-Settlement Agreement Between Publishers and Google

Case 1:05-cv-08136-DC Document 56 Filed 10/28/08 Page 323 of 323

2. This dismissal shall be without costs or fees. 3. This stipulation may be filed without further notice with the Clerk of the Court. 4. The Court shall retain jurisdiction over any disputes relating to the resolution of this matter.

SO ORDERED, this _____ day of _________________, 2009.

STIPULATED TO BY:

____________________________________ John E. Sprizzo United States District Judge

THE MCGRAW-HILL COMPANIES, INC., PEARSON EDUCATION, INC., PENGUIN GROUP (USA) INC., SIMON & SCHUSTER, INC., and JOHN WILEY & SONS, INC.

GOOGLE INC.

By their attorneys,

By its attorneys,

Bruce P. Keller (BK 9300) Jeffrey P. Cunard James J. Pastore, Jr. (JP 3176) DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 (212) 909-6000 (phone) (212) 909-6836 (fax) bpkeller@debevoise.com jpcunard@debevoise.com jjpastor@debevoise.com

Daralyn J. Durie, Esq. David J. Silbert, Esq. Joseph C. Gratz, Esq. KEKER & VAN NEST LLP 710 Sansome Street San Francisco, CA 94111 (415) 391-5400 (phone) (415) 397-7188 (fax) dsilbert@kvn.com ddurie@kvn.com jgratz@kvn.com

7
Attachment M-Settlement Agreement Between Publishers and Google

 
 UNITED STATES DISTRICT COURr SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------Jt The Authors Guild, Inc., Association of American Publishers, Inc., et aI.,

Plaintiffs, v.

Case No. 05 CV 8136-JES

GoogIe Inc.,

Defendant. ------------------------------------------------------------------------Jt
[PROPOSED] ORDER GRANTING PRELIMINARY SETTLEMENT APPROVAL

This matter is before the Court pursuant to the motion of Plaintiffs in the above-captioned

class action (the "Action") for preliminary approval of the settlement Plaintiffs reached with

defendant Google Inc. ("Ooogle"). Plaintiffs have moved for an order approving the settlement

of the Action in accordance with the Settlement Agreement between Plaintiffs and Google.

Having read and considered the Settlement Agreement, and based upon familiarity with the files

and proceedings in this matter, the Court finds that:

1. Plaintiffs filed an initial complaint, and subsequent amended complaints, in the

Action alleging, on behalf of themselves and a putative class of others similarly situated, that

defendant violated the United States Copyright Act, 17 U.S.C. §§ 101 ei seq.;

2. Defendant has vigorously contested the allegations;

3. The parties have entered into a Settlement Agreement that has been filed with the

Clerk of the United States District Court for the Southern District ofNew York;

4. The Court has reviewed the Settlement Agreement and detennined it to be within

the range ofpossible approval; and

5. The Court has reviewed the notice provisions of Article XII oftbe Sett1ement
Agreement, and the fOnDS of notice attached to the Settlement Agreement as Attachments I and
J, and the Court has detennined that the fOnD. content and manner ofdissemination ofthe notices
constitute the best notice practicable under the circumstances.
Accordingly, it is hereby ORDERED as follows:
6. The motion is GRANTED. The Settlement Agreement is hereby preliminarily
approved. Unless otherwise specified, all defined tenns herein shall have the same meaning as
in the Settlement Agreement.
7. The following Settlement Class and two Sub~Classes are provisionally certified for
settlement purposes only:
Settlement Class
All Persons that, as of January 5, 2009, have a Copyright Interest in one or more Books or Inserts. All Settlement Class members are either members ofthe Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Settlement Class are Google, the members ofGoogle's Board ofDirectors and its executive officers.
Author Sub-Class
Members ofthe Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Settlement Class who are not members of the Publisher Sub~Class.
Publisher Sub-Class
Members ofthe Settlement Class that are (a) companies that publish hooks, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees.
8. Plaintiffs Paul Dickson, Joseph Goulden, Daniel Hoffinan. Betty Miles, and
Herbert Mitgang are designated as Representative Plaintiffs for the Author Sub-C1ass. Plaintiffs
2

The McGraw-Hill Companies. Inc., Pearson Education, Inc., Penguin up (USA) Inc., Simon
& Schuster, Inc., and John Wiley & Sons, Inc. are designated as Repres ntative Plaintiffs for the Publisher Sub-Class.
9. The Court appoints the following law firms as Class Co el: the firms ofBoID & Zack LLC, Milberg LLP, and Kahn, Swift & Graf, PC for the Author S b-Class ("Author SubClass Counsel"), and the firm of Debevoise & Plimpton LLP for the P lisher Sub-Class ("PubJisher Sub-Class Counsel"). Author Sub-Class Counsel and Pubr her Sub-Class Counsel shall be referred to collectively herein as "Class Counse1."
10. A final settlement/fairness hearing shall be held on<_3J_.,,-+_--, 2009, at~: 0 0 .~< ~ I
(the "Hearing") before the undersigned in Courtroom 14C, United Stat District Court for the Southern District ofNew York, Daniel Patrick Moynihan United Stat Courthouse, 500 Pearl Street, New York, NY 10007. The purpose of the Hearing shall be to tenns and conditions ofthe proposed Settlement Agreement are fair, r onable, and adequate; (b) whether to certify the Class and the Sub-Classes for purposes of the settlement; and (c) whether the proposed Settlement Agreement should be approved by the Court and judgment entered thereon. At the Hearing, or such adjourned date as the Court d ems appropriate. Class
Counsel and any interested person shall be heard on the fairness, reaso ableness, and adequacy
ofthe tenns of the Settlement Agreement and on Author Sub-Class Co el's application for an award of attorneys' fees and reimbursement of expenses as set forth in e Settlement Agreement.
11. The Court preliminarily approves the proposed Settleme t Agreement, including the procedures for establishing and administering the settlement funds d procedures for notice,
3

~ ""'"'.,.., ..
,'.<
opting out, and objection as described therein, as fair, reasonable, and' the best interests ofthe
Settlement Class and the Sub-Classes. l2. The Court reserves the right to adjourn the Hearing or ord
without further notice other than an oral announcement at or prior to th Hearing. The Court also reserves the right to approve the proposed Settlement Agreement at or fter the Hearing with or without modification as consented to by the parties to the Settlement A cement and without further notice to members of the Settlement Class, The Court shall re n jurisdiction to consider all applications arising out of or connected with the proposed Settlem
13, The Court approves as to form, content, and method of di semination of the Notice
of Class Action Settlement ("Notice") and the Summary Notice of Clas Action Settlement (the
"Summary Notice") substantially in the forms attached to the Settlem
Attachments I and J,
14. Before disseminating Notice pursuant to paragraph 16 bel w. Class Counsel shall
submit to the Court for approval as to form and content the Claim Fo s to be included with the Notice.
15. The Notice Commencement Date shall be January 5, 200 . The Opt-Out Deadline shall be May 5, 2009.
16. Begimring on January 5,2009, Class Counsel shall cause e Notice to be forwarded to identifiable Settlement Class members by e-mail.postal.l.postageprepaid.at the last known mailing address, or other means ofdissemination.
17. Beginning on January 12, 2009 or earlier, Class Counsel 1cause to be published the Summary Notice as set forth in the Settlement Agreement and shall otherwise comply with the Notice program as set forth in Article XII ofthe Settlement Agre
4

18. AU notice required to be disseminated under the Notice p disseminated no later than February 27,2009.
19. At least five business days prior to the Hearing, Class Co compliance with the provisions ofparagraphs 16 and 17 ofthis Order by declaration describing
the aforementioned mailings and pUblications. and shall fiJe with the Co Plaintiffs' Motion for Final Settlement Approval and supporting papers, and Motion for Appro al of Plaintiffs' Attorneys' Fees and Reimbursement of Expenses and supporting papers.
20. The form and method of Notice and Summary Notice sped Agreement are hereby approved and detennined to be the best notice pr ticable under the circumstances. and the Court finds that the Notice and Summary Notice requirements ofRule 23 of the Federal Rules ofCivil Procedure and with applicable standards of due process.
21. Members of the Settlement Class and Sub-Classes will be eluded from the settlement only ifthey comply with the opt-out procedures set forth in th Notice and Settlement Agreement, which procedures are hereby approved as fair and reasonable Unless they have excluded themselves, members of the Settlement Class and Sub-Classes s all be bound by all determinations and judgments in this case relating to the proposed Settl ent, whether favorable or unfavorable, including the dismissal ofthe Action with prejudice and e release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Re easees, Public Domain Library Releasees and Other Library Re1easees from Liability to members f the Class. Persons who timely exclude themselves from the Class in accordance with the pro edures prescribed in the Notice and Settlement Agreement win not be bound by any orders or j gments entered in
5

the Action related to the proposed settlementt and shall not receive any the proposed Settlement Agreement in the event it is approved by the

efim provided for in

22. Persons who are members ofthe Settlement Class and do ot exclude themselves

may enter an appearance on their own behalf or through counsel ofthei

expense. Ifthey do not enter an appearance, they will be represented. b Class Counsel.

Any member of the Settlement Class who does not exclude hi

to: (i) the proposed Settlement Agreement; (ii) certification of the Settl

both of the Sub-Classes for purposes ofthe settlement; (iii) dismissal 0

judgment and releases to be entered with respect thereto; and/or (iv) Au or Sub-Class Counsel's

application for attorneys' fees and reimbursement of expenses in the Ac .on; or who otherwise

wishes to be heard, may appear in person or through his or her own atto ey at the hearing and

present evidence or argument that may be proper and relevant; provided however, that no Person

other than Class Counsel and Google in the Action shall be heard and n papers, briefs.

pleadings, or other documents submitted by any such Person shall be r eived and considered by

the Court (unless the Court in its discretion shall thereafter otherwise di t, upon application of

such person and for good cause shown), unless, (1) not later than May 5 2009, such Person has

filed a statement of the objection and the grounds for the objection, toge er with any supporting

papers or briefs, with the Court at the address listed below and served c ies of such papers by

email or ftrst class mail on the attorneys listed below; and (2) ifwishing 0 appear, not later than

May 5, 2009, such Person has filed a Notice of Intent to Appear, inc1udi g the Person's name,

address, telephone number and signature, as wen as the name and addre s. of counsel, if any, with

the Court at the address listed below and served copies of such papers b

on the attorneys listed below: 6

The District Court
Office ofthe Clerk
J.~ichael~c~ahon
U.S. District Court for the Southern District of New York
Soo Pearl Street
New York, New York 10007
Aath.or Sub-ClaS! Counsel
Michael J. Boni, Esquire Joanne Zack, Esquire Joshua D. Snyder, Esquire Boni & Zack LLC 15 Saint Asaphs Road Bala Cynwyd, PA 19004 Bookclaims@bonizack.com
Publisher Sub-Class CouDsel
Jeffrey P. Cunard, Esquire Bruce P. Keller, Esquire James J. Pastore, Esquire Debevoise & Plimpton LLP 919 Third Avenue New York. NY 10022 Bookclaims@debevoise.com
G.ogele CouDsel
Daralyn J. Durie, Esquire David J. Silbert, Esquire Joseph C. Gratz, Esquire Keker & Van Nest LLP 710 Sansome Street San Francisco, CA 94111 Bookclaims@kvn.com
23. Any Settlement Class member who retains an attorney to
proposed settlement on behalf of the Settlement Class member or oth .se to represent the
Settlement Class member in this litigation does so at the Settlement Cl member's own
expense. Any such attorney must file a notice of appearance in this liti tion with the Clerk of
7

this Court and serve copies ofthe notice on the attorneys listed in para aph 22 above, no later

than May 5, 2009. Any objection not timely made and in the manner p ovided herein shall be

deemed waived and fOl"ever barred,

24. Pending final determination ofwhether the proposed Settl ent Agreement should be approved. Plaintiffs and all members of the Sett1ement Class, either' 'vidually, directly. representatively, derivatively. or in any other capacity. are barred and ~oined from commencing or prosecuting any action or proceeding asserting any clai whatever on behalf of

themselves or the Settlement Class against Google that were brought or uld have been brought in the Second Amended Class Action Complaint and that relate to or se out of the claims as described in that complaint.
25. lfthe Court does not grant final approval of the Settlemen Agreement, or if the

settlement does not become effective for any reason whatever, the Settl

(including any modification thereof made with the consent ofthe partie as provided therein), any Class certification herein and any actions taken or to be taken in co

(including this Order and any judgment entered herein) shall be tennina d and shall become void and have no further force and effect, except as provided in the Settl ment Agreement.

26. The Settlement Agreement and any proceedings taken p

t thereto are not, and

should not in any event be: (a) offered or received as evidence ofa pres

admission on the part of any of Plaintiffs, Google. Fully Participating Li raries, Cooperating Libraries, Public Domain Libraries. Other Libraries, any member of the ettlement Class, or any

other person; or (b) offered or received as evidence of a presumption, co cession or admission by any person of any liability, fault, wrongdoing or other dereliction of

8

27. The Court reserves jurisdiction over the subj oct matter an as to each party to the Settlement Agreement with respect to the interpretation~ effectuation, d implementation ofthe Settlement Agreement in accordance with the terms thereof for all p ses, including

enforcement ofany ofthe tenns thereofat the instance ofany party an resolution of any

y disputes that may arise.

P ~ 0 If

_1___ DATED this

day of

,2008.

9

 
 Case 1:05-cv-08136-DC Document 125 Filed 08/05/09 Page 1 of 2

r.- AAPD~\~~~~ ,';.

~ ,:

AmerICan Assoc,at,on of People with Disabilities

,i\L El.ECTR. ON,CALLY

FILIP .. J

OC . !)

i '.

''f·~.}..

#' _ _~~~'\7I-r:

July 27,2009

The Honorable Denny Chin United States District Judge Daniel Patrick Moynihan Courthouse 500 Pearl Street New York, NY 10007

Dear Judge Chin:

Re: Authors Guild, Inc. et al. v. Google, Inc. Case No. cv- 8136-DC

I write on behalf of The American Association ofPeople with Disabilities (AAPD) to respectfully ask that the Court approve the proposed settlement between the Authors Guild and Google in the above captioned case. In particular, AAPD supports the provisions in the proposed the settlement agreement that enable people with disabilities to reap the benefits of the technology that makes the contents of many of the world's books only one or two clicks away and in a form accessible to many people with disabilities.

AAPD is the largest national nonprofit cross-disability member organization in the United States, dedicated to ensuring economic self-sufficiency and political empowerment for the more than 50 million Americans with disabilities. AAPD's principal concerns about technology and communications services are accessibility and usability, although affordability is equally important.

The settlement's benefits for readers with disabilities are extraordinary. People for whom transportation to a library or bookstore is difficult, unavailable or expensive would have access to these books through their computer. People with vision loss will be able to search for books through the Google Books interface and purchase, borrow, or read at a public library any of the books that are available to the general public in accessible formats. As a result, vast numbers of books will be opened up for many people for the first time ever.

Affordability is also an integral component of accessibility, and in that regard the free services provided under the agreement are very important. People with disabilities are among the least employed and under employed individuals in this country and require affordable options for accessing the world's information, including books. Under the settlement, anyone will be able to freely search and preview many books. Public libraries will be able to provide free access to millions of books at a designated terminal, and we

Case 1:05-cv-08136-DC Document 125 Filed 08/05/09 Page 2 of 2
believe researchers, students, and others with disabilities will be significant beneficiaries of this availability.
AAPD is conscious that the marketplace for digitized books is continuing to evolve. In order for users with disabilities to have their unique needs met, it is important that there be a variety of service providers. Therefore, we are pleased that the settlement not only allows Google to create new, accessible services but also makes it easier for other providers to develop book services.
From our viewpoint and understanding, Google appears committed to accessibility, usability, and affordability with respect to Google Book Search. Recently, we met with some Google representatives and they conveyed Google's commitment to exploring ways in which the company can further enhance accessibility of this product for people with disabilities that would be consistent with the proposed settlement.
AAPD is very encouraged by the steps being taken by Google to make digitized books available to more and more people, including people with disabilities. AAPD asks that the Court approve the proposed settlement agreement so that this important tool can become immediately more widely available. Respectfully submitted,
Andrew J. Imparato President and Chief Executive Officer
American Association of People with Disabilities
1629 K Street NW, Suite 950 • Washington, DC 20006 phone 202-457-0046 (V/TTY) • 800-840-8844 (V/TTY)· fax 202-457-0473· www.aapd.com

 
 Case 1:05-cv-08136-DC Document 716 Filed 09/16/09 Page 1 of 2

UNITED STA ES DISTRICT COURT
SOUTHERN D STRICT OF NEW YORK ----

- -x

THE AUTHORS GUILD et al.,

Plaintiffs,

USDCSD:NY DOCUMENT J' ELE~ON;CALLY FILED
1~1~7~~D:~~~II

- against -

GOOGLE , IN .,

Defendant. - - -x

CHIN,

Judge

ORDER 05 Civ. 8136 (DC)

September 8, 2009 was the deadline by which objections and amicu curiae briefs were to be filed with the Court. The Court has received approximately four hundred submissions objection to the proposed settlement, statements in support of the propo ed settlement, and briefs from amici curiae. All the submissio s have been uploaded onto the Court's electronic filing system.
In light of the volume of submissions, and the apparent public in erest in the case, the following procedures shall govern th fairness hearing:
(1) By October 2, 2009 the parties shall respond in writing t the filings in this case.
(2) The fairness hearing shall proceed as scheduled on October 7 2009 at 10:00 a.m.
(3) Any person who wishes to speak at the fairness st submit a request to speak by sending an email to ==;1..:!:...::==-==~=,!::=~~""-!..~~~=""!:::"!:::::,,,:,,=O:,,!,,v by 5: 0 0 p. m. EDT on September 21, 2009. The request shall include a brief statement of

Case 1:05-cv-08136-DC Document 716 Filed 09/16/09 Page 2 of 2

interest. Depending on the number of people who wish to be heard

in person l the Court may limit both the number of speakers and the time y particular person will be permitted to speak. Those

selected speak will be notified by the Court by September 25 1

2009 1 by r turn email. The parties to the case and the United States nee not submit a request to speak; they will be given an

opportunit to speak. Of course l the Court will review all the written s missions; objectors l supporters 1 and amici are not required t appear at the hearing for their views to be

considere

The parties shall post a copy of this order on the

settlemen website forthwith.

Details regarding courtroom seating l press access l and an ov rflow room will be provided in a later order.

SO ORDERED.

Dated:

iNew Yorkl New York
lSeptember 16, 2009

DENNY CHIN United States District Judge

-2-

 
 Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 1 of 32

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE AUTHORS GUILD, INC. et al.,
Plaintiffs,
v.
GOOGLE INC.,
Defendant.

05 Civ. 8136 (DC) ECF CASE

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA REGARDING PROPOSED CLASS SETTLEMENT

WILLIAM F. CAVANAUGH U.S. Department of Justice Deputy Assistant Attorney General Antitrust Division 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Tel.: (202) 353-1535

PREET BHARARA United States Attorney for the Southern District of New York
JOHN D. CLOPPER Assistant United States Attorney 86 Chambers Street, 5th Floor New York, New York 10007 Tel.: (212) 637-2716

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 2 of 32
TABLE OF CONTENTS I. Aspects of the Proposed Settlement in Its Current Form Require Modification to
Satisfy Rule 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. The Most Forward-Looking Provisions of the Agreement Require
Modification to Satisfy Rule 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 B. The Parties Have Not Demonstrated that the Class Representatives
Adequately Represent Absent Class Members . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. The Scope of the Proposed Settlement Requires Robust Notice, and
the Record Requires Further Development of Whether Such Notice Has Been Provided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 D. The Parties Should Consider Modifications to Address the Requirements of Rule 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 II. The Proposed Settlement May Be Inconsistent with Antitrust Law . . . . . . . . . . . . . 16 A. Horizontal Agreements Among Authors and Publishers as to Terms of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. Collective Agreement on Wholesale Terms . . . . . . . . . . . . . . . . . . . . . . 19 2. Restrictions on Retail Price Competition . . . . . . . . . . . . . . . . . . . . . . . . . 21 3. Terms of Sale for Orphan Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 B. Potential Foreclosure of Competition in Digital Distribution . . . . . . . . . . . . 23 III. Additional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
i

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 3 of 32
TABLE OF AUTHORITIES Cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 10, 12 Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332 (1982) . . . . . . . . . . . . . . . . . . . 17, 18, 20 Assoc. Press v. United States, 326 U.S. 1 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1 (1979). . . . . . . . . . . . . . . . . . 18, 19 Catalano, Inc. v. Target Sales, 446 U.S. 643 (1980) (per curiam). . . . . . . . . . . . . . . . . . 17, 20, 22 Citizen Publ’g, Co. v. United States, 394 U.S. 131 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977) . . . . . . . . . . . . . . . . . . . . . . . 5 Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Goldfarb v. Va. State Bar, 421 U.S. 773 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 In re Literary Works in Elec. Databases Copyright Litig., MDL No. 1379 (S.D.N.Y. Sept. 25, 2005), rev’d on other grounds, 509 F.3d 116 (2d Cir. 2007), cert. granted, Reed-Elsevier, Inc. v. Muchnick, No. 08-103 (Mar. 2, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007). . . . . . . . . . . . . . . . . . 17 Nat’l Super Spuds, Inc. v. New York Mercantile Exch., 660 F.2d 9 (2d Cir. 1981) . . . . . . . . . . . 6 Nat’l Soc’y of Prof. Eng’rs v. United States, 435 U.S. 679 (1978) . . . . . . . . . . . . . . . . . . . . . . . 20 NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 New York v. St. Francis Hosp., 94 F. Supp. 2d 399 (S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . 21 Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284 (1985) . . . 23, 24 State Oil Co. v. Khan, 522 U.S. 3 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Texaco Inc. v. Dagher, 547 U.S. 1 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ii

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 4 of 32
TFWS, Inc. v. Schaefer, 242 F.3d 198 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Toys “R” Us, Inc. v. FTC, 221 F.3d 928 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24 Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978 (7th Cir. 2002) . . . . . . . . . . . . . . 6 United States v. Aquafredda, 834 F.2d 915 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 United States v. Columbia Pictures Indus., Inc., 507 F. Supp. 412 (S.D.N.Y. 1980) . . . . . . . . 24 United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . 21 Va. Excelsior Mills, Inc. v. FTC, 256 F.2d 538 (4th Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . 21 Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . 6, 7 Other Hearing on Competition and Commerce in Digital Books: The Proposed Google Book Settlement Before the House Comm. on the Judiciary, 111th Cong., 1st Sess. (2009) (statement of Marybeth Peters, Register of Copyrights) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 House Comm. on the Judiciary, 111th Cong., 1st Sess. (2009) (statement of Paul Aiken, Executive Director of the Authors Guild) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 XI Herbert Hovenkamp, Antitrust Law ¶ 1907c at 246-48 (2d ed. 2005) . . . . . . . . . . . . . . . . . . 20
iii

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 5 of 32
The United States of America, by and through counsel, submits this statement of its views concerning the proposed class action settlement (the “Proposed Settlement” or “Agreement”) between the American Association of Publishers, et al. (the “Class Plaintiffs”) and Google Inc. (“Google”).
The United States has been informed by the parties that they are continuing to consider possible modifications of the Proposed Settlement to address the many concerns raised by various commenters and by the United States in its discussions with the parties. The Proposed Settlement is one of the most far-reaching class action settlements of which the United States is aware; it should not be a surprise that the parties did not anticipate all of the difficult legal issues such an ambitious undertaking might raise. Further, the parties have represented to the United States that they put this Court on notice of their ongoing discussions and that they may present a modified version of the Proposed Settlement in the future. The United States is committed to working with the parties constructively with respect to alterations the parties may propose.
The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works. The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit from the accessibility elements of the Proposed Settlement, and, if the Proposed Settlement were approved, full text access to tens of millions of books would be provided through institutional subscriptions. Finally, the creation of an independent, transparently-operated Book Rights Registry (the “Registry”) that would serve to clarify the
1

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 6 of 32
copyright status and copyright ownership of out-of-print works would be a welcome development.
Nonetheless, the breadth of the Proposed Settlement – especially the forward-looking business arrangements it seeks to create – raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.
This Memorandum sets forth the concerns of the United States with respect to the current version of the Proposed Settlement; these concerns may be obviated by the parties’ subsequent changes to the agreement. Commenters’ objections to the Proposed Settlement fall into three basic categories: (1) claims that the Proposed Settlement fails to satisfy Rule 23; (2) claims that the Proposed Settlement would violate copyright law; and (3) claims that the Proposed Settlement would violate antitrust law. In the view of the United States, each category of objection is serious in isolation, and, taken together, raise cause for concern. The Proposed Settlement seeks to implement a forward-looking business arrangement rather than a settlement of past conduct, using
2

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 7 of 32
the mechanism of Rule 23 in a manner that implicates the principle that copyright owners generally control whether and how to exploit their own works during the term of copyright. At the same time, the Proposed Settlement would establish a marketplace in which only one competitor would have authority to use a vast array of works – especially so-called “orphan” works1 – that may provide significant value both to Google and to the Registry, a collective which would control exploitation of those works. As the United States has previously advised the Court, the Antitrust Division of the Department of Justice is investigating the Proposed Settlement; although that investigation is still ongoing, the United States is providing in this Memorandum a preliminary explanation of its antitrust concerns.
The United States’ views on the Proposed Settlement are informed by three basic principles. First, one goal of the settlement – making large numbers of copyrighted works available to the public in electronic form while providing compensation to authors and publishers – is a public benefit that, to date, has not come to pass due to certain realities of the copyright system, including, for example, the fact that copyright owners are not required to formally register or otherwise assert their ownership. In particular, the rediscovery of currently unused or inaccessible works and the digitization of those works in formats that are accessible to persons with disabilities are important public policy goals. The United States believes that, through the actions of private entities and Congress (if necessary), steps should be taken to advance these objectives.
1 The United States notes that, as a general matter, “orphan works” refers to the subset of rightsholders who likely cannot be located after a diligent search. In the context of the settlement, some out-of-print works will be orphan works, while others may belong to copyright owners who may be locatable but will not come forward to join the Registry.
3

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 8 of 32
Second, the end result should be a marketplace in which consumers can be assured that they are paying competitive prices for the benefit they receive – in a marketplace in which they have multiple outlets from which to obtain access to works. The benefits of this settlement should not be achieved through unjustified restrictions on competition.
Third, the structural safeguards of Rule 23 must be satisfied to ensure that the rights of absent class members are fully protected. This Court should engage in a careful and searching examination of the Proposed Settlement and any revised version that may be submitted.
The United States recognizes that the only question before the Court is whether to approve or disapprove the Proposed Settlement. Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost. I. Aspects of the Proposed Settlement in Its Current Form Require Modification to
Satisfy Rule 23 Rule 23 is designed to ensure that the settlement of a class action resolves disputes on behalf of plaintiffs who have aligned interests and protects the legal rights of absent class members whose interests may diverge from those of the named class representatives. To prevent abuses and to provide structural guarantees of fundamental fairness, Rule 23 requires that the class be defined in terms of commonality, typicality, and adequacy of representation, and that
4

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 9 of 32
class settlements be fair, reasonable, and adequate. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 628-29 (1997); Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982); E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403-05 (1977).
The United States submits that, as currently drafted, the Proposed Settlement does not satisfy these requirements. As discussed below, there are changes that the United States has identified that may reduce potential conflicts among class members and address concerns about the adequacy of representation for absent class members. Moreover, the most sweeping forwardlooking licensing provisions of the current Proposed Settlement (which give open-ended control to the Registry and Google for the exploitation of the rights of absent class members unless those class members opt out of those provisions) both exacerbate potential conflicts between the interests of the class representatives and those of absent class members – especially rightsholders of out-of-print works and foreign rightsholders – and are difficult to square with the requirements of Rule 23. In addition, as discussed below, the record at this time does not establish that the class was afforded adequate notice, which is critical given the size and geographic scope of the class, and the alteration in copyright protection that the Proposed Settlement would effectuate.
The parties have indicated that they are renegotiating a number of aspects of the Proposed Settlement. Until the parties agree on new provisions, however, it is impossible to determine whether a modified settlement will satisfy Rule 23’s strictures. Accordingly, the United States respectfully submits that, as identified below, there are various ways to address the foregoing concerns that the parties should consider in their future discussions. The United States looks
5

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 10 of 32
forward to the opportunity to provide the Court with its comments regarding any modified version of the Proposed Settlement that the parties may negotiate.
A. The Most Forward-Looking Provisions of the Agreement Require Modification to Satisfy Rule 23
Various commenters have suggested that the Proposed Settlement must be limited to compensation for past conduct and should provide for little in the way of forward-looking relief (other than a prohibitory injunction going forward). Citing cases such as Amchem, 521 U.S. at 620, 628-29, National Super Spuds, Inc. v. New York Mercantile Exch., 660 F.2d 9, 17 (2d Cir. 1981), and Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 106-13 (2d Cir. 2005), these objectors contend that Rule 23 precludes settlements of claims that go beyond the four corners of the complaint filed, or that address claims that have not arisen. The United States does not advocate such a categorical view here. As a theoretical matter, a properly defined and adequately represented class of copyright holders may be able to settle a lawsuit over past conduct by licensing a broader range of conduct to obtain global “copyright peace.” At least one federal court of appeals has approved a class action settlement with a forward-looking licensing component covering claims that had not yet fully accrued. See Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 982 (7th Cir. 2002) (affirming class settlement that resolved trespass and slander of title claims by granting easements in railroad rights-of-way).
That said, the concerns that animated the Supreme Court’s decision in Amchem, which rejected a proposed class settlement of all present and future claims by workers exposed to asbestos because the currently-injured plaintiffs had different interests and goals from those workers that had been exposed but had not yet suffered any injury, 521 U.S. at 626-27, and those that led the Second Circuit in Wal-Mart to conclude that Rule 23 does not permit release of
6

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 11 of 32
claims of absent class members unless those claims arise from the “identical factual predicate,” 396 F.3d at 107, apply with significant force to the most forward-looking provisions of the Proposed Settlement. In Amchem, Wal-Mart, and other cases, the courts have cast doubt on the circumstances in which class representatives could adequately represent absent class members with respect to as-yet uncertain injuries or rights that were far removed from the facts underlying the complaint.
Against this backdrop, the United States has greater concerns about some provisions in the Proposed Settlement than it has about others. At one end of the spectrum are the provisions that settle the specific allegations of infringement in the Complaint – Google’s scanning of millions of copyrighted works and making available small portions of such works in response to search requests. As to those claims, there are strong arguments that an appropriate set of publisher and author class representatives can adequately represent all members of the class with respect to reaching a settlement for payments to be made to publishers and authors for the use of their works. The claims are based on specific conduct and present facts, and, assuming representation of those with potentially different interests, adequate representation seems possible.
At the other extreme are the provisions of the Proposed Settlement that authorize the Registry to license Google to exploit the copyrighted works of absent class members for unspecified future uses (potentially derivative works or other uses) – essentially authorizing, upon agreement of the Registry, open-ended exploitation of the works of all those who do not opt out from such exploitations. See Proposed Settlement Agreement, dated Oct. 28, 2008 (“S.A.”) § 4.7 (allowing the Registry to authorize future business models without any class notification). Such licensing is far afield from the facts alleged in the Complaint. And the rights conferred are so
7

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 12 of 32
amorphous and malleable that it is difficult to see how any class representative could adequately represent the interests of all owners of out-of-print works (including orphan works). The parties appear willing to address this problem by limiting the future rights that may be controlled by the Registry and Google. The United States looks forward to working with the parties to address these concerns across the entire spectrum of provisions in the Proposed Settlement.
B. The Parties Have Not Demonstrated that the Class Representatives Adequately Represent Absent Class Members
The Proposed Settlement raises concerns about the adequacy of representation afforded to absent class members, especially owners of “orphan” out-of-print works and foreign rightsholders. We address each set of concerns separately.
First, the Proposed Settlement draws distinctions between in-print and out-of-print works. Google must obtain the permission of copyright owners of in-print works before making use of those works (beyond scanning). See S.A. §§ 3.2(b), 3.4(b). But Google can incorporate out-ofprint works into new commercial products without the owner’s permission, S.A. §§ 3.2(b), 4.7. Copyright owners of out-of-print works can deny Google permission to use their works in certain ways if they learn of the agreement and their rights under it. S.A. §§ 3.2(e)(i), 3.5, 4.7. But, copyright owners of out-of-print works provide a release to Google for any exploitation of their rights that occurred prior to those owners becoming aware of Google’s use. S.A. §§ 10.1(f), 10.1(m)-(n), 10.2(a). And, because the owners of orphan works are an incredibly diverse group that includes not only living authors or active publishers, but heirs, assignees, creditors, and others who acquire the property interest by contract or operation of law, these rightsholders are difficult or impossible to locate, and thus difficult to notify. Moreover, no amount of notice is likely to protect those orphan rightsholders who are unaware of their rights or unclear how or
8

Case 1:05-cv-08136-DC Document 720 Filed 09/18/09 Page 13 of 32
whether they want to exploit them. Yet, if an out-of-print copyright owner does not come forward within five years, profits from the commercial use of the out-of-print work are distributed to pay the expenses of the Registry and then to the Registry’s registered rightsholders. See S.A. § 6.3; S.A. Attachment C, Plan of Allocation §§ 1.1(e), 2.3.
The structure of the Proposed Settlement itself, therefore, pits the interests of one part of the class (known rightsholders) against the interests of another part of the class (orphan works rightsholders). Google’s commercial use of orphan works will generate revenues, which will be deposited with the Registry. Any unclaimed revenues, however, will inure to the benefit of the Registry and its registered rightsholders. Thus, the Registry and its registered rightsholders will benefit at the expense of every rightsholder who fails to come forward to claim profits from Google’s commercial use of his or her work. And, as noted above, the broad scope of the Proposed Settlement’s licensing provisions exacerbate this conflict. The greater the economic exploitation of the works of unknown rightsholders by Google and the Registry, the stronger the incentive for known rightsholders to retain the unclaimed revenues for themselves.
The provisions of the Agreement that allow Google to negotiate with the Registry to develop new derivative products create additional adequacy-of-representation concerns. The class representatives who negotiated these terms are all known rightsholders.2 Thus, while these rightsholders are willing to authorize Google to develop future uses of copyrighted works, their own works are fully protected from unanticipated future uses: these owners can deny Google permission to use their works in ways they deem objectionable. Out-of-print rightsholders,
2 The parties have represented that all of the current class representatives have interests in both in-print and out-of-print works, with the exception of a single author representative whose works recently went out-of-print.
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however, will not enjoy such protections unless they learn of the Proposed Settlement and its terms (and in some cases their own ownership rights) before Google begins a new use of their works. It is noteworthy that the parties have indicated their belief that the largest publisher plaintiffs are likely to choose to negotiate their own separate agreements with Google (i.e., they will not opt in to the future provisions of the settlement), while benefitting from the out-of-print works that will be exploited by Google due to the effect of the opt-out requirement for those works. There are serious reasons to doubt that class representatives who are fully protected from future uncertainties created by a settlement agreement and who will benefit in the future from the works of others can adequately represent the interests of those who are not fully protected, and whose rights may be compromised as a result.
The parties respond to these concerns by contending that these conflicts are more theoretical than real. They submit that the Proposed Settlement will breathe new economic life into out-of-print works, which will create incentives for their owners to self-identify so that they can benefit from copyrights currently lacking commercial value. This theory is certainly plausible. But where, as here, the structure of a settlement agreement creates a conflict among known and unknown class members, a court cannot ignore or excuse that conflict based on an untested hypothesis that economic incentives will operate to obviate the conflict. See Amchem, 521 U.S. at 627 (looking to “structural assurance of fair and adequate representation”). That outof-print rightsholders might benefit from a fundamental alteration of their rights is insufficient to show that they were adequately represented by named plaintiffs whose rights will not be altered (or who can readily avoid such alteration), and who stand to gain if out-of-print rightsholders do
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not opt out.3 The United States looks forward to reviewing modifications to the Proposed Settlement that will provide structural assurances to minimize this conflict.
Second, the Proposed Settlement raises concerns about the adequacy of representation with respect to foreign rightsholders. The Proposed Settlement operates to sweep in untold numbers of foreign works, whose authors, under current law, are not required to register in the same manner as U.S. rightsholders. Many of those authors have never published works in the United States and are not members of the Authors Guild or the Association of American Publishers, which exclude many foreign copyright owners from membership by virtue of their membership criteria. Moreover, the interests of these class members likely differ from those of the class representatives. As the filings of France and Germany make clear, some of the United States’ trading partners have serious concerns about application of the Proposed Settlement to foreign authors4 and, in any event, the parties have not demonstrated that the class included representation sufficient to protect the interests of these foreign rightsholders.
Thus, although the Proposed Settlement may well provide overall benefits to a wide range of authors and publishers and to the public, there are at present insufficient assurances that absent
3 As the Register of Copyrights has explained, the Proposed Settlement’s far-reaching authorization to the Registry and ultimately Google to exploit out-of-print works without prior consent of the rightsholders, alters the traditional understanding of copyright law that allows the owner to exclude others from using a copyrighted work absent authorization of the copyright owner. Hearing on Competition and Commerce in Digital Books: The Proposed Google Book Settlement Before the House Comm. on the Judiciary, 111th Cong., 1st Sess. at 3, 6-8 (2009) (statement of Marybeth Peters, Register of Copyrights), available at http://judiciary.house.gov /hearings/pdf/Peters090910.pdf (accessed Sept. 18, 2009). 4 See Mem. of Law in Opp’n to the Settlement Proposal on Behalf of the French Republic at 1 (D.E. 179); Mem. of Law in Opp’n to the Settlement Proposal on Behalf of the Federal Republic of Germany, at 1 (D.E. 287) (“Germany Opp’n”).
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class members’ interests were adequately represented. The parties should continue to work on modifications to the Proposed Settlement to address these concerns.
C. The Scope of the Proposed Settlement Requires Robust Notice, and the Record Requires Further Development of Whether Such Notice Has Been Provided
Sufficient notice is a distinct requirement of Rule 23. The notice requirement is designed to ensure that absent class members are provided with the opportunity to protect their interests. As the Supreme Court explained in Amchem, “[t]o alert class members to their right to ‘opt out’ of a (b)(3) class, Rule 23 instructs the court to ‘direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.’ Fed. R. Civ. P. 23(c)(2); see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173-177 (1974) (individual notice to class members identifiable through reasonable effort is mandatory in (b)(3) actions; requirement may not be relaxed based on high cost).” 521 U.S. at 617.
The adequacy of notice is particularly important in this case because the Proposed Settlement seeks to certify a broad class, including individuals or entities who have not yet been injured in any fashion and whose rights may be exploited (without prior consent) in a form as-yet unknown based on future decisions by the Registry and Google. It is a difficult legal question whether notice could be formulated to be legally sufficient with respect to the many undefined and uncertain future uses the Proposed Settlement would authorize Google to make. Amchem, 521 U.S. at 628 (noting “the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous”). Once again, foreign rightsholders present special problems of notice, especially given the fact that
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some may not, to date, have sought to exploit their works in the United States, but may wish to in the future, and because the Proposed Settlement grants Google and the Registry broad rights to unclaimed works.
The record on the notice provided is, at this point, undeveloped. Some commenters have complained that they did not receive notice by any direct means. See, e.g., Objection of Scott E. Gant to Proposed Settlement at 16 n.31 (D.E. 143). Although the United States is not in a position to opine on whether the notice provided by Google has met the strictures of Rule 23, it believes the Court should undertake a searching inquiry to ensure both that a sufficient number of class members will be reached and that the notice provided gives a complete picture of the broad scope of the Proposed Settlement. The Court should not hesitate to require the parties to undertake further efforts to notify the class.
D. The Parties Should Consider Modifications to Address the Requirements of Rule 23
The United States is heartened that the parties are actively considering modifications of the Proposed Settlement and believes the best result is a negotiated solution that can satisfy the dictates of Rule 23, the copyright law, and the antitrust laws. The United States is fully cognizant that this is the parties’ agreement and that even small modifications to the Proposed Settlement may require significant renegotiation. Nevertheless, in an effort to assist the parties in their future discussions and to apprise the Court of the United States’ views, the United States identifies below provisions that the parties could consider modifying to address concerns with the Proposed Settlement as currently drafted.
As a threshold matter, changing the forward-looking provisions of the current Proposed Settlement applicable to out-of-print rightsholders from an opt-out to an opt-in would address the
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bulk of the Rule 23 issues raised by the United States. This would put the out-of-print rightsholders and in-print rightsholders in the same situation and respond to a significant concern expressed by foreign rightsholders. Such a revision would, of course, not give Google immediate authorization to use all out-of-print works beyond the digitization and scanning which is the foundation of the plaintiffs’ Complaint in this matter. Google has suggested that the vast majority of known authors and publishers of out-of-print works who have or will receive notice of the settlement will wish to be bound by it; if that is true, creating an opt-in mechanism would not seem to work a significant hardship for a broad category of affected works. Coupled with enhanced requirements of the Registry to search for rightsholders (who may then elect to opt in), such a change may achieve a significant portion of the benefit of the settlement as currently envisioned without running afoul of Rule 23. As noted in testimony by the Authors Guild before the House Judiciary Committee, “finding the rights owners of a book is not as daunting as many seem to believe.”5
The United States does not mean to suggest, however, that such a modification is the only means to revise the Proposed Settlement to make it consistent with Rule 23. A combination of other revisions affecting the scope of the forward-looking license provisions and protecting the interests of absent class members could also alleviate at least some of the United States’ concerns.
With respect to the interests of owners of out-of-print works (or any rightsholder that does not receive notice), extending the time for opting out of the class and for claiming escrowed profits owed to unknown rightsholders would minimize potential conflicts. Alternatively, the escrow provisions could be revised to eliminate the distribution of residual profits to registered
5 See House Comm. on the Judiciary, 111th Cong., 1st Sess. (2009) (statement of Paul Aiken, Executive Director of the Authors Guild at 8).
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rights owners. Instead, unclaimed profits could be devoted entirely to the search for rightsholders of orphan works, and the Registry could be authorized to petition the court for an alternative distribution based on a showing that search efforts had been fully exhausted. Another possibility would be to appoint persons to the Registry to serve as guardian representatives of orphan works owners. All of these steps could at least partially address the current conflict in the plaintiff class by moderating the incentive of known rightsholders to disadvantage unknown rightsholders or leverage their own economic interests on those of rightsholders who have not come forward.
The risk of such improper leveraging might also be reduced by narrowing the scope of the license. A settlement that simply authorized Google to engage in scanning and snippet displays in the future would limit the profits that others could potentially derive from out-of-print works whose owners fail to learn of their right to claim those profits. Other less significant limitations on the scope of the forward-looking license may be possible, and the United States looks forward to hearing from the parties on possible proposals.
The United States also believes progress can be made with respect to protecting the interests of foreign rightsholders. Google has already indicated that it will take steps to address the concerns of foreign rightsholders, though, to date, those actions do not appear to have addressed the concerns of the United States’ trading partners, which believe that an opt-out regime for foreign rightsholders is prohibited. See, e.g., Germany Opp’n at 9-11. In addition to consideration of an opt-in, as the parties continue discussions over modifications to the settlement, they should consider addressing the adequacy of representation of foreign rightsholders by adding foreign owners of in-print and out-of-print works to the class
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representatives, to provide some assurance that the interests of absent foreign rightsholders have been accommodated.
These are a few of many possible revisions that could be considered. The United States believes such future discussion between the parties is necessary and could be productive. II. The Proposed Settlement May Be Inconsistent with Antitrust Law
The Department of Justice has opened an investigation into the competitive impact of the Proposed Settlement. That investigation is not yet complete, and future modifications of the Proposed Settlement in response to comments filed in the instant proceeding may bear on the conclusions of that investigation. For these reasons, the United States cannot now state with certainty whether the Proposed Settlement violates the antitrust laws in any respect. Nevertheless, the Department’s views on certain core issues are sufficiently well developed that articulating them now may be beneficial to the Court in its consideration of the Proposed Settlement and to the parties in their continuing negotiations regarding possible modifications.6
In the view of the Department, the Proposed Settlement raises two serious issues. First, through collective action, the Proposed Settlement appears to give book publishers the power to restrict price competition. Second, as a result of the Proposed Settlement, other digital distributors may be effectively precluded from competing with Google in the sale of digital library products and other derivative products to come. These problems are evident on the face of the Proposed Settlement and the concerns they raise have not to this point been convincingly
6 The parties have represented to the United States that, with regard to any potential challenge to the legality of the settlement, they will not raise a defense based on the Noerr-Pennington doctrine.
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addressed by the parties. The parties have indicated, however, a willingness to consider modifications that would address at least some of the concerns set forth below.
A. Horizontal Agreements Among Authors and Publishers as to Terms of Sale Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits agreements in “unreasonable” restraint of trade. State Oil Co. v. Khan, 522 U.S. 3, 10 (1997). Some restraints are so manifestly anticompetitive and without redeeming value that they are deemed illegal per se under Section 1. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886 (2007). Other restraints are evaluated under the rule of reason, allowing consideration of the parties’ market power and any procompetitive justifications, as well as the restraint’s anticompetitive effects. In at least three respects, the collectively negotiated provisions of the Proposed Settlement appear to restrict price competition among authors and publishers: (1) the creation of an industrywide revenue-sharing formula at the wholesale level applicable to all works; (2) the setting of default prices and the effective prohibition on discounting by Google at the retail level; and (3) the control of prices for orphan books by known publishers and authors with whose books the orphan books likely compete. Although they arise in a unique context, these features of the Proposed Settlement bear an uncomfortably close resemblance to the kinds of horizontal agreements found to be quintessential per se violations of the Sherman Act. See Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332 (1982); Catalano, Inc. v. Target Sales, 446 U.S. 643 (1980) (per curiam). And, even if the provisions were considered under the rule of reason, a strong countervailing “procompetitive justification,” NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 100 (1984), would be needed to avoid antitrust condemnation of what appear to be direct and unnecessary restraints on price competition.
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As a threshold matter, the parties contend that the Proposed Settlement’s pricing terms should be viewed not as a form of horizontal collective action by publishers and authors actionable under Section 1, but simply as a unilateral offer by Google to each individual rightsholder to contract on specified terms. The Department is not persuaded by this description. Class representatives – who compete with each other – collectively negotiated these pricing terms on behalf of all rightsholders. That some individual authors or publishers might opt out of those terms does not make them any less the product of collective action by competitors.
Alternatively, the parties contend that the Proposed Settlement should be considered a joint venture like the one at issue in Broadcast Music, Inc. v. Columbia Broadcast. System, Inc., 441 U.S. 1 (1979). In BMI, the Supreme Court held that the blanket licenses issued and priced by the music performing rights organizations ASCAP and BMI were not subject to per se invalidation under Section 1 because: (1) they allowed for new, integrated products “entirely different from the product that any one composer was able to sell by himself,” see Maricopa, 457 U.S. at 355;7 (2) they generated substantial transaction-cost savings; (3) they were a practical necessity if songwriters were to be paid for the use of their compositions; and (4) ASCAP and BMI already operated under DOJ consent decrees.
The present situation is quite different. Wholly apart from whatever new integrated products Google might offer using the rights it obtains in the Proposed Settlement, Google will also act as a joint sales agent, offering each rightsholder’s books for individual sale. Contrast BMI, 441 U.S. at 22 (approving only blanket license that was distinct from individually licensed
7 A legitimate joint venture may set the price for its own offering without incurring per se antitrust liability, see Texaco Inc. v. Dagher, 547 U.S. 1 (2006), but it must involve an efficiency-enhancing integration, and not a mere joint marketing of competitors’ products. See Maricopa, 457 U.S. at 355-57.
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compositions). Additionally, the Proposed Settlement’s revenue-sharing provision reduces incentives for authors and publishers to compete at the wholesale level through bilateral negotiations with Google. In contrast, ASCAP and BMI have always negotiated separate bilateral agreements with rightsholders, preserving competition among the rightsholders for their share of the blanket license revenues – just as Google (through its Partner Program) and competitors such as Amazon.com and Sony have done with thousands of publishers. Moreover, unlike music rightsholders who need the ASCAP/BMI organizations to detect the “fleeting” uses of their compositions on the airwaves, id. at 19, book authors and publishers have not shown that they lack a practical means to be paid for uses of their works in the absence of collectively negotiated pricing mechanisms. Finally, unlike both ASCAP and BMI, id. at 10-15, 24, no actor here has its market power constrained by a consent decree with the Department of Justice, which, among other things, allows licensees to ask the court to set the price of a license.
Thus, the parties’ threshold arguments do not justify forgoing a thorough inquiry into the anticompetitive potential of the Proposed Settlement’s collectively negotiated pricing terms. As will be shown, absent modification by the parties, there is a significant possibility that the Department will conclude that those terms violate the federal antitrust laws.
1. Collective Agreement on Wholesale Terms Currently, publishers compete with each other over the terms on which they will sell hardcopy and digital books to distributors, including Google. The pricing terms in the Proposed Settlement appear to restrict that competition. The parties have fixed the royalty rate at 63% of all revenues Google earns under the settlement. See § 2.1(a). This term operates as a price floor (even for those who elect not to use the Proposed Settlement’s default pricing mechanisms),
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diminishing the incentives of individual authors or publishers to discount or offer other terms more favorable to the purchaser. See Goldfarb v. Va. State Bar, 421 U.S. 773, 781-82 (1975) (holding that price floor for legal services is illegal price fixing); Maricopa, 457 U.S. at 349 (agreement among doctors to set maximum fee they would accept for purposes of contracting with health insurers is per se illegal); Catalano, 446 U.S. at 646-50 (fixing price related terms in wholesale agreements is per se unlawful). Thus, for antitrust purposes, it is immaterial that authors and publishers can negotiate individually rather than accept the Proposed Settlement’s terms. Maricopa, 457 U.S. at 341, 349-54.
The parties’ contention that this kind of industry-wide pricing mechanism is necessary to create a vibrant market for digital books is difficult to reconcile with the facts on the ground. Millions of digital books are already available for purchase, including growing numbers of out-ofprint books, as a result of bilateral negotiations between distributors and individual rightsholders. In the same vein, it is difficult to justify a uniform royalty rate on the theory that it will eliminate transaction costs between Google and publishers. The antitrust laws do not permit parties to justify their conduct on the ground that competition itself is undesirable. See XI Herbert Hovenkamp, Antitrust Law ¶ 1907c at 246-48 (2d ed. 2005) (reducing transaction “costs of operating the competitive market itself” is not a valid defense because “[o]ur entire market system is built on the premise that these costs are worth their price in the great majority of cases.”); see also, e.g., Nat’l Soc’y of Prof. Eng’rs v. United States, 435 U.S. 679, 687, 692-95 (1978).
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2. Restrictions on Retail Price Competition
The Proposed Settlement also directs Google to develop a pricing algorithm to set default retail prices for individual books governed by the settlement.8 In other contexts, courts have
repeatedly rejected as per se illegal the establishment of a joint price-setting mechanism. Citizen
Publ’g, Co. v. United States, 394 U.S. 131, 134-35 (1969); Va. Excelsior Mills, Inc. v. FTC, 256
F.2d 538, 540-41 (4th Cir. 1958); New York v. St. Francis Hosp., 94 F. Supp. 2d 399, 412-14
(S.D.N.Y. 2000). Similarly, courts have held that the use of formulas agreed upon among
competitors to set the price of competing goods is per se illegal. United States v. Socony-Vacuum
Oil Co., 310 U.S. 150, 198-99, 222-23 (1940); Va. Excelsior Mills, 256 F.2d at 540. This feature
of the Proposed Settlement warrants particularly close scrutiny.
The Proposed Settlement also restricts Google from discounting off a rightsholder’s list
price without authorization of the Registry and notification of the rightsholder, either of which
may veto the discount. S.A. § 4.5(b)(ii). This term discourages Google from funding discounts and making the rightsholder whole, as any other retailer might.9 And allowable discounts are
limited to 40% off a book’s list price. In other contexts, such collective restraints on discounting
8 See S.A. §§ 4.2(b)(i)(2), 4.2(c)(ii). The Proposed Settlement also establishes retail “pricing bins,” which define the prices at which algorithm-priced books may actually be offered for sale. S.A. § 4.2(c). It identifies twelve initial pricing bins ranging from $1.99 to $29.99 and the initial percentage of books to be assigned to each bin, S.A. § 4.2(c)(ii)(1), but also states that Google and the Registry may add or modify the bins at any time, S.A. § 4.2(c)(i). Google will create a pricing algorithm to determine the retail price bin into which each book is placed, as a default option. This algorithm must: (1) “maximize revenue for each Rightsholder,” S.A. § 4.2(b)(i)(2); and (2) determine the retail price for books based “upon the aggregate data collected with respect to Books that are similar to such Book,” S.A. § 4.2(c)(ii)(2). 9 The Agreement authorizes Google to fund “temporary” discounts, without elaborating on such a discount’s permissible duration. S.A. § 4.5(b)(i). This uncertainty reduces the ability of discounts under this Section to have any meaningful impact on consumer prices.
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have been held to be per se violations of Section 1. See Catalano, 446 U.S. at 648 (ban on extending credit is “tantamount to an agreement to eliminate discounts, and thus falls squarely within the traditional per se rule against price fixing”); TFWS, Inc. v. Schaefer, 242 F.3d 198, 210 (4th Cir. 2001) (volume discount ban per se illegal); United States v. Aquafredda, 834 F.2d 915, 917 (11th Cir. 1987) (criminal violation based on agreement to cease offering discounts).
3. Terms of Sale for Orphan Works The Proposed Settlement also appears to limit price competition by giving publishers, through the mechanism of negotiations conducted by the Registry, the ability to control the future pricing of orphan works that may compete with the works of known rightsholders. The Registry is effectively controlled by large commercial publishers. Allowing it to set the prices of orphan works effectively allows known rightsholders to choose the price at which their competitors’ books (those of unknown rightsholders) are offered for sale. Citizen Publ’g, 394 U.S. at 134-135 (joint sales of newspaper advertising and subscriptions by competing newspapers held to be “plain beyond peradventure” per se violations of § 1). Known rightsholders would appear to have every incentive to ensure that the orphan works will not offer effective competition.
* * * * * In each of the respects described above, the Proposed Settlement’s pricing terms appear to constrain competition among authors and publishers. Moreover, none seems reasonably necessary to achieve the stated benefit of the Proposed Settlement – breathing new commercial life into millions of long-forgotten, commercially unavailable works. Accordingly, absent modification of those terms, there is a significant potential that the Department will conclude that they violate the Sherman Act.
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B. Potential Foreclosure of Competition in Digital Distribution Under the Proposed Settlement, competing authors and publishers grant Google de facto exclusive rights for the digital distribution of orphan works. Such “joint efforts by a firm or firms to disadvantage competitors by either directly denying or persuading or coercing suppliers or customers to deny relationships the competitors need in the competitive struggle” have significant anticompetitive potential and may violate the antitrust laws. Toys “R” Us, Inc. v. FTC, 221 F.3d 928, 936 (7th Cir. 2000) (quoting Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 294 (1985)). The Proposed Settlement appoints the Registry to negotiate with Google on behalf of the entire class regarding new commercial uses of digital books, and releases Google from any copyright liability arising from those new uses. S.A. §§ 4.7, 10.1(f), 10.2(a). The Proposed Settlement does not forbid the Registry from licensing these works to others. But the Registry can only act “to the extent permitted by law.” S.A. § 6.2(b). And the parties have represented to the United States that they believe the Registry would lack the power and ability to license copyrighted books without the consent of the copyright owner – which consent cannot be obtained from the owners of orphan works. If the parties are correct, the Registry will lack the ability to provide competitors with licenses that will allow them to offer to the public anything like the full set of books Google can offer if the Settlement Proposal is approved. Google’s competitors are unlikely to be able to obtain comparable rights independently. They would face the same problems – identifying and negotiating with millions of unknown individual rightsholders – that Google is seeking to surmount through the Settlement Proposal. Nor is it reasonable to think that a competitor could enter the market by copying books en masse
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without permission in the hope of prompting a class action suit that could then be settled on terms comparable to the Proposed Settlement. Even if there were reason to think history could repeat itself in this unlikely fashion, it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation as a means of obtaining approval for licensing provisions that could not otherwise be negotiated lawfully. Moreover, the “most favored nation” clause in the Proposed Settlement, S.A. § 3.8(a), discourages potential competitors (including those sponsored by rightsholders) from attempting to follow Google into digital-book distribution because it could not obtain better terms than Google.
This de facto exclusivity (at least as to orphan works) appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription. The seller of an incomplete database – i.e., one that does not include the millions of orphan works – cannot compete effectively with the seller of a comprehensive product. Foreclosure of newcomers is precisely the kind of competitive effect the Sherman Act is designed to address. See Assoc. Press v. United States, 326 U.S. 1, 13-14 (1945). At this stage in the Department’s investigation, it is not at all clear that this aspect of the Proposed Settlement can be “justified by plausible arguments that [it is] intended to enhance overall efficiency and make markets more competitive.” Nw. Wholesale Stationers, 472 U.S. at 294. To the contrary, the Proposed Settlement appears to share features of collective agreements courts have rejected. See Toys “R” Us, Inc., 221 F.3d at 936 (condemning agreements between Toys “R” Us and key suppliers “to disadvantage . . . competitors . . . by inducing the suppliers to collude [by selling only through Toys R Us], rather than to compete independently for shelf space in the different [] retail stores.”); United States v. Columbia Pictures Indus., Inc., 507 F. Supp.
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412 (S.D.N.Y. 1980) (condemning agreement in which competing movie studios exclusively licensed their movies to a single cable channel formed by the studios through a joint venture, the profits of which were shared according to a profit-sharing agreement).
This risk of market foreclosure would be substantially ameliorated if the Proposed Settlement could be amended to provide some mechanism by which Google’s competitors’ could gain comparable access to orphan works (whatever such access turns out to be assuming the parties negotiate modifications to the settlement).10 See, e.g., In re Literary Works in Elec. Databases Copyright Litig., MDL No. 1379 (“Order for Final Approval of Settlement and Final Judgment”) (S.D.N.Y. Sept. 25, 2005) (numerous companies beyond the named defendants allowed to obtain benefits of settlement) (available at www.copyrightclassaction.com/ final_judge.pdf), rev’d on other grounds, 509 F.3d 116 (2d Cir. 2007), cert. granted, ReedElsevier, Inc. v. Muchnick, No. 08-103 (Mar. 2, 2009). Analysis of such provisions would have to take into account the limitations of Rule 23, but they would have an important impact on the antitrust analysis.
If Rule 23 permits the class to enter into an agreement with Google that extends well beyond the scope of the alleged violation, and to set up an industry-wide arrangement for the licensing of copyrighted works for digital distribution, that arrangement should conform to the procompetitive mandate of the federal antitrust laws. Consumers may benefit from the creation of
10 Authorizing the Registry to license the orphan works to third parties would appear to expand only the circumstances under which it could exercise the authority to act as continuing agent for the rightsholders with respect to orphan works already granted to it under the Agreement. See S.A. § 4.7 (empowering Registry to authorize Google to distribute books under new, unspecified business models); § 3.7(c) (authorizing Registry to empower “one or more provider(s)” to sell the class’s books if Google decides it no longer wants to sell the books as the Agreement envisions).
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digital libraries that would not otherwise be feasible, but they should not be required to pay the price of eliminating competition among authors and publishers on the one hand and de facto exclusive control of the library by Google on the other. III. Additional Considerations
In addition to the issues discussed above, the United States offers two additional observations with respect to the Proposed Settlement.
First, the parties have sought to maximize accessibility in a way that will provide individuals with print disabilities with a substantially similar experience as users without print disabilities. In the Proposed Settlement, Google has committed to providing accessible formats and comparable user experience to individuals with print disabilities – and if these goals are not realized within five years of the agreement, Google will be required to locate an alternative provider who can accomplish these accommodations. Along with many in the disability community, the United States strongly supports such provisions.
Second, given the nature of the digital library the Proposed Settlement seeks to create, the United States believes that, if the settlement is ultimately approved, data provided should be available in multiple, standard, open formats supported by a wide variety of different applications, devices, and screens. Once these books are digitized, the format in which they are made available should not be a bottleneck for innovation. Google has made clear in the past that it started this project on the premise that anyone, anywhere, anytime should have the tools to explore the great works of history and culture. However the Proposed Settlement is modified by the parties, this approach should continue to be at its heart.
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CONCLUSION This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.
Respectfully submitted,

WILLIAM F. CAVANAUGH U.S. Department of Justice Deputy Assistant Attorney General, Antitrust Division 950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 353-1535
Dated: September 18, 2009

PREET BHARARA United States Attorney

By:

/s/ John D. Clopper

JOHN D. CLOPPER

Assistant United States Attorney

86 Chambers Street

New York, NY 10007

Telephone: (212) 637-2716

Facsimile: (212) 637-0033

john.clopper@usdoj.gov

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CERTIFICATE OF SERVICE I hearby certify that on the 18th day of September, 2009, I caused a true and correct copy of the foregoing STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA REGARDING PROPOSED CLASS SETTLEMENT to be served electronically via the CM/ECF system on the lead attorneys to be noticed in this matter, including those counsel of record identified below.
/s/ John D. Clopper JOHN D. CLOPPER
Michael J. Boni, Esq. Joanne Zack, Esq. Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004
Jeffrey P. Cunard, Esq. Bruce P. Keller, Esq. Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022
Daralyn J. Durie, Esq. Joseph C. Gratz, Esq. Durie Tangri Lemley Roberts & Kent LLP 332 Pine Street, Suite 200 San Francisco, CA 94104
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 Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-x
AUTHORS GUILD

Plaintiffs,

- against GOOGLE, INC.,
Defendant.

MEMORANDUM DECISION 05 Civ. 8136 (DC)

APPEARANCES:

- - - - - - -x

BONI & ZACK LLC

By: Michael J. Boni, Esq. 15 St. Asaphs Road

Bala Cynwyd, PA 19004

Attorneys

Author Plaintiffs

DICKSTEIN SHAPIRO LLP

By: Shi

O. Saed, Esq.

Charles D. Ossola, Esq.

Elaine Metlin, Esq.

1825 I Street, Northwest

Washington, DC 20006

-and-

VICTOR S. PERLMAN, ESQ.

General Counsel

American Soc ty of Media

Photographers, Inc.

150 North Street

Philadelphia, PA 19160

Attorneys

Proposed Intervenors

CHIN, District Judge

The American Society of Media Photographers, the Graphic Artists Gui ,the Picture Archive Council of America,
North American Nature Photography Association, Meyerowitz, Dan Budnik, Pete Turner, and Lou Jacobs, Jr. (the Ifmovants ll ) move, pursuant to Federal Rule of Civil Procedure

Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 2 of 9

59(e), for reconsideration of the Court's deni motion to intervene in this case.

of their earlier

The movants make two arguments for intervention.

First, they argue that they are entitled to intervene as of right

under Rule 24(a) (2). Second, in the alternative, they ask the

Court to exercise its discretion to permit them to intervene

under Rule 24(b) (2). For the reasons that follow, the motion is denied in its entirety.

BACKGROUND

This is a class action brought by the Authors Guild,

various publishing firms, and certain individual authors on

behalf of all holders of United States copyright interests in

books and other specified textual works. (2d Am. Compo ~ 34).

Holders of United States copyright interests in pictoral

materials - except for the illustrations

children's books -

are explicitly excluded from the class of plaintiffs.

. ~

38). The second amended complaint alleges that defendant Google,

Inc. (IIGoogle") infringed plaintiffs' copyrights when it scanned

copyrighted materials without permission, and made plans to

provide those mat als to the public through an online

searchable database. (Id. ~ 47) .

After long negotiations, plaintiffs and Google

submitted a proposed settlement agreement to the Court on October

28, 2008. The proposed settlement purports to allocate rights to

the copyrighted materials at issue, providing royalty payments to

known copyright owners in exchange for Google's permission to

publish the materials online, and setting up a separate entity

called the Books Rights Registry to manage and stribute royalty

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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 3 of 9
payments. Notice was sent to class members on January 5, 2009. A fairness hearing was scheduled and adjourned several times because of the complexity of the issues and the number of supporters and objectors who wished to be heard. The hearing was set for October 7, 2009, but it was once again delayed when the United States Department of Justice raised concerns about antitrust and other issues implicated by the proposed settlement. Currently, the parties are renegotiating the proposed settlement agreement, working with the Department of Justice to address the concerns. The parties are due to fi the revised proposed settlement agreement with the Court on November 9, 2009.
The movants, persons and entities holding copyright interests in pictoral materials, seek to intervene in the litigation.
DISCUSSION A. Applicable Law
Under Rule 24(a) (2), lito intervene as of right. . an applicant must (1) timely file an application; (2) show an interest in the action; (3) demonstrate that the interest may be impaired by the disposition of the action; and (4) show that the interest is not protected adequately by the parties to the action. New York News Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992) (citation omitted) . "Failure to satisfy anyone of these requirements is a sufficient ground to deny the application. II Catanzano v. Wing, 103 F.3d 223,232 (2d Cir. 1996) (quoting Farmland Dairies v. Comm'r, 847 F.2d 1038, 1043 (2d Cir. 1988»
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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 4 of 9
The timeliness decision is based on a set of flexible criteria and it is subject to the district court's discretion. pnited States v. Yonkers Bd. of Educ., 801 F.2d 593, 594-95 (2d Cir. 1986); see also United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994). "The length of time the applicant knew or should have known of his interest before making the motion" is one of the most important factors to be considered in determining timeliness. Catanzano, 103 F.3d at 232. As the Second Circuit has noted, "timeliness defies precise definition. II Pitney Bowes, 25 F.3d at 70. Among the factors to be considered are" (1) how long the applicant had notice of the interest before it made the motion to intervenei (2) prejudice to existing parties resulting from any delaYi (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness. II Id., 25 F.3d at 70 (citation omitted) .
Under Rule 24(b) (2), the district court's discretion is broad. Sackman v. Liggett Group, 167 F.R.D. 6, 22 (E.D.N.Y. 1996). The text of the rule directs the court to consider "whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24 (b) (2) . B. Application
The movants' request to intervene is untimely and the parties would be prejudiced if the movants were allowed to intervene now. This litigation was initiated in September 2005, and it has garnered extensive media attention ever since. The movants have been aware of the litigation since it was filed more
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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 5 of 9

than four years ago, and they have known that they were not

intended to be included in the class of plaintiffs. (See,~,

Letter from Boni & Zack LLC, dated 10/5/09, Ex. A). Now, they

argue that their intervention is still timely because 1) their

attorneys only finished reviewing the parties' proposed

settlement agreement in February 2009, and 2) any motion for

intervention within a settlement's "opt-out" period should be

considered presumptively timely. Neither of these arguments,

however, mitigates the prejudice that intervention would impose

on the parties to the case.

Whether a motion to intervene is "timely" is driven

heavily by an analysis of prejudice: whether the parties to the

case will be prejudiced by intervention, and whether the proposed

intervenor will be prejudiced by being kept out of the

litigation. See Pitney Bowes, 25 F.3d at 72-73. Though the

movants seem to propose that the Court adopt a per se rule that

any motion within a settlement's "opt-out" period be considered

presumptively timely, "it is incorrect to adopt a per se

rule.

. Instead, the determination [of timeliness] must be

based on all the circumstances of the case." United States v.

State of New York, 820 F.2d 554, 557 (2d Cir. 1987). In this

case, the parties will be far more prejudiced by intervention

than the movants will be prejudiced by a denial of their motion

to intervene.

The parties to this litigation have been negotiating

and renegotiating a complicated settlement agreement for several

years. In the last two months, the parties have begun working

with the Department of Justice to revise the agreement to attempt

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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 6 of 9

to avoid antitrust problems, and they are due to re-file their

new settlement proposal on November 9, 2009. The proposed

settlement, if approved, would allocate rights to millions of

textual materials. It represents thousands of hours of

discussion, compromise, and legal draftmanship. Yet, the movants

propose to intrude at the very end of this long process, and to

add the question of millions of pictoral materials to the

equation. Intervention could "destroy [the parties'] settlement

and send[] them back to the drawing board." In re Holocaust

Victim Asset Litig., 225 F.3d 191, 199 (2d Cir. 2000).

The movants, on the other hand, are not unduly

prejudiced by the proposed settlement in this case. The proposed

settlement does not concern the rights to their pictoral

materials and it binds them in no way. The movants are free to

initiate

ir own litigation, and to invest the time, money, and

energy to seek out their own settlement with Google. The movants

claim that it would be "burdensome and prejudicial" to be forced

to file their own lawsuit. (Mov. Mem. at 6). This argument is

not persuasive, however, because the ordinary burden of ling a

lawsuit does not constitute an impediment to a party's capacity

to protect its rights. See id. (c ing SEC v. Everest Mgmt.

Corp., 475 F.2d 1236, 1239 (2d r. 1972)) ("the potential

obstacles to the pursuit of an independent lawsuit do not 'impair

or impede the applicant's lity to protect [its] interest'!!).

The movants may not delay or destroy the parties' settlement

because they wish they had been involved in the litigation from

the outset.

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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 7 of 9

The movants argue that the royalty payments to textual

copyright holders under the proposed settlement will effectively

serve as a IIceilingll in the future, and that the movants lack the

market power to negotiate a better deal for themselves

separately. (Mov. Mem. at 9). This argument is speculative.

Even assuming it is correct, it shows that the movants wish to

intervene in this lawsuit -- rather than file their own

lawsuit

so that they can achieve a better deal than they could

negotiate on their own by injecting themselves into a process

that is already well underway and putting the entire settlement

at risk. This is exactly the type prejudice that Rules

24(b) (2) and 24(a) (2) seek to avoid.

Finally, the movants argue that the broad class

definition in the first amended complaint vested them with rights

in the litigation, and that class counsel acted "egregious [ly] II

by not representing them adequately, and by negotiating them out

of the settlement. In the original complaint, plaintiffs defined

the class to include anyone who holds a copyright in a 1I1iterary

work II in the Uni vers i ty of Michigan 1 ibrary . (Comp . ~ 20). In

the first amended complaint, the class was expanded to include

anyone who holds a copyright in a IIwork" in the University of

Michigan library. (1st Am. Compo ~ 22). Finally, in the second

amended complaint, the class was limited to holders of united

States copyright interests in Books and other textual materials,

not including "pictoral works." (2d Am. Compo ~ 38).

The movants are incorrect: the broad class that was

defined in the first amended complaint does not entitle them to

intervene at this late date. liThe broad language of a complaint

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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 8 of 9
does not vest in putative class members a right to be part of the class ultimately certified by the District Court." Holocaust Litigation, 225 F.3d at 202. The center this litigation has always been copyrighted textual materials. I reject the argument that class counsel acted in bad faith in the way they defined the class because there are legitimate reasons for limiting the class to holders of textual copyrights. See McBean v. City of New York, 228 F.R.D. 487, 497 (S.D.N.Y. 2005) (Lynch, J.) ("Th[e] argument [that the parties acted in bad th] would have weight if there were no conceivable justification for plaintiffs' decision to narrow the class aside from desiring a quick and easy settlement.") .
The holders of pictoral copyrights are differently situated from the holders of textual copyrights. Frankly, in the context of a online database that is searchable using keywords, it makes sense to prioritize the rights to word-based material. It is true that the class could have included the owners of pictoral copyrights, as well, but the class members are not under an obligation to resolve every conceivable controversy under the auspices of this litigation. As long as movants retain their right to bring their own lawsuit, they have not been harmed by this litigation, and they do not retain an automatic right to intervene a year after the proposed settlement agreement was filed. From the perspectives of fairness and ficiency, it makes more sense for the movants to file their own lawsuit than to be permitted to delay this lawsuit.
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Case 1:05-cv-08136-DC Document 765 Filed 11/04/09 Page 9 of 9

DENIED. Dated:

CONCLUSION For the reasons set forth above/ the motion is hereby

SO ORDERED.
New York/ New York November 4/ 2009

-
Judge

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 Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 1 of 11

UNITED STATES DISTRICT COURT

',;

"

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------)(
The Authors Guild, Inc., Association of American
Publishers, Inc., et at,

Plaintiffs, v.

Case No. 05 CV 8136 (DC)

Google Inc.,

Defendant. ------------------------------------------------------------------------)(
1PROPOSI;Bt ORDER GRANTING PRELIMINARY APPROVAL OF AMENDED SETTLEMENT AGREEMENT

This matter is before the Court pursuant to the motion of Plaintiffs in the above-captioned class action (the "Action") for preliminary approval of an Amended Settlement Agreement among Plaintiffs and defendant Google Inc. ("Google"). Having read and considered the Amended Settlement Agreement, and based upon familiarity with the files and proceedings in this matter, the Court finds that:
1. Plaintiffs filed an initial complaint, and subsequent amended complaints, in the Action alleging, on behalf of themselves and a putative class of others similarly situated, that defendant violated the United States Copyright Act, 17 U.S.c. §§ 101 et seq.;
2. Defendant has vigorously contested the allegations; 3. The parties entered into a Settlement Agreement that was filed with the Clerk ofthe United States District Court for the Southern District of New York on October 28, 200Band
@
preliminarily approved by the Court on November 14,2008; 4. In an order dated December 23, 2008, the Court approved the form and content of
the paper Claim Form and the online Claim Form;

Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 2 of 11

5. After the conclusion of the notice and opt-out period for the Settlement Agreement,

the parties advised the Court that they would not be seeking final approval of the Settlement

Agreement, and would instead seek preliminary approval of an Amended Settlement Agreement;

6. The parties have now filed the instant motion seeking preliminary approval of the

Amended Settlement Agreement;

7. The Court has reviewed the Amended Settlement Agreement and determined it to

be within the range of possible approval; and

8. The Court has reviewed the notice provisions of Article XII of the Amended

Settlement Agreement, and the form of Supplemental Notice attached to the Amended

Settlement Agreement as Attachment N, and the Court has determined that the form, content and

manner of dissemination of the Supplemental Notice constitutes the best notice practicable under

" the circumstances) e....c'ep~ -+~....-t.. ~ t:~~~ rlc.~~

~~(id cu;. A.""'{'~

Accordingly, it is hereby ORDERED as follows:

k..t..t.c J

9. The motion is GRANTED. The Amended Settlement Agreement is hereby

~

~ preliminarily approved. Unless otherwise specified, all capitalized terms herein shall have the

same meaning as in the Amended Settlement Agreement.

10. The following Amended Settlement Class and two Sub-Classes are provisionally

certified for settlement purposes only:

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 3 of 11
Amended Settlement Class All Persons that, as of January 5,2009, have a Copyright Interest in one or more Books or Inserts. All Amended Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Amended Settlement Class are Google, the members of Google's Board of Directors and its executive officers, and the departments, agencies and instrumentalities of the United States Government, and the Court. Author Sub-Class Members of the Amended Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Amended Settlement Class who are not members ofthe Publisher Sub-Class. PubUsher Sub-Class Members of the Amended Settlement Class that are (a) companies that publish books, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees. 11. Plaintiffs Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, Herbert Mitgang, Maureen Duffy, Daniel Jay Baum, Margaret Drabble and Robert Pullan are designated as Representative Plaintiffs for the Author Sub-Class. Plaintiffs The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc, Macmillan Publishers Limited, Harlequin Enterprises Limited, Melbourne University Publishing Limited and The Text Publishing Company are designated as Representative Plaintiffs for the Publisher Sub-Class. 12. The Court appoints the following law firms as Class Counsel: the firms ofBoni & Zack LLC, Milberg LLP, and Kohn, Swift & Graf, PC for the Author Sub-Class ("Author SubClass Counsel"), and the firm of Debevoise & Plimpton LLP for the Publisher Sub-Class
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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 4 of 11

c 9 ("Publisher Sub-Class Counsel"). Author Sub-Class Counsel and Publisher Sub-Class Counsel
shall be referred to collectively herein as "Class Counsel."

f!'b. lS 13. A final settlement/fairness hearing shall be held on

,2010, at ~:oo AM

(the "Hearing") before the undersigned in Courtroom llA, United States District Court for the

Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl

Street, New York, NY 10007. The purpose of the Hearing shall be to determine: (a) whether the

terms and conditions of the Amended Settlement Agreement are fair, reasonable, and adequate;

(b) whether to certify the Amended Settlement Class and the Sub-Classes for purposes of the

settlement; and (c) whether the Amended Settlement Agreement should be approved by the

Court and judgment entered thereon. At the Hearing, or such adjourned date as the Court deems

appropriate, Class Counsel and any interested person shall be heard on the fairness,

reasonableness, and adequacy of the terms of the Amended Settlement Agreement and on Author

Sub-Class Counsel's application for an award of attorneys' fees and reimbursement of expenses

as set forth in the Amended Settlement Agreement.

14. The Court preliminarily approves the Amended Settlement Agreement, including

the procedures for establishing and administering the settlement funds and procedures for notice,

opting out, opting in and objecting as described therein, as fair, reasonable, and in the best

interests of the Amended Settlement Class and the Sub-Classes.

15. The Court reserves the right to adjourn the Hearing or order any adjournment

without further notice other than an oral announcement at or prior to the Hearing. The Court also

reserves the right to approve the Amended Settlement Agreement at or after the Hearing with or

without modification as consented to by the parties to the Amended Settlement Agreement and

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 5 of 11

without further notice to members of the Amended Settlement Class. The Court shall retain

jurisdiction to consider all applications arising out of or connected with the Amended Settlement

Agreement.

16. The Court approves as to form, content, and method of dissemination the

Supplemental Notice of Class Action Settlement ("Supplemental Notice") substantially in the

_ (Ql;

"'~ W"O~-0~ form attached to the Amended Settlement Agreement as Attachment N)

/..e.rt-lv\ .

l)o:,\~2009. 17. The Supplemental Notice Commencement Date shall be

The

Opt-Ou~ -j'~ Supplemental

Opt-in and Objection Deadline shall be

2010.

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@

18. Unless withdrawn, all objections timely filed by members of the Amended

Settlement Class in connection with the Settlement Agreement will be considered in connection

with the Amended Settlement Agreement and should not be refiled. Objections to the terms of

the Amended Settlement Agreement shall be limited to the provisions amended from the

Settlement Agreement.

19. Class Counsel shall assist the Clerk of the Court to assure that the electronic

docketing of objections will be conducted in an efficient manner.
20. Beginning on\)e~ 2009, Class Counsel shall cause the Supplemental Notice to be
\'c
emailed or sent by postal mail to all persons who provided contact information on the official

settlement website or on a Claim Form, who opted out of the original Settlement Agreement, or

who filed an objection, amicus position or other statement with the Court.
21. Beginning on~r, 2009, Class Counsel shall cause the Supplemental Notice to be

posted on the official Settlement website, www.googlebooksettlement.com.

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 6 of 11

'R-b. 22. On

II ,2010, Class Counsel shall certify compliance with the Notice

programs for the Settlement Agreement and the Amended Settlement Agreement by declaration,

and shall file with the Court Plaintiffs' Motion for Final Settlement Approval and supporting

papers, and Motion for Approval of Plaintiffs' Attorneys' Fees and Reimbursement of Expenses

and supporting papers.

23. The form and method of Supplemental Notice specified in the Amended Settlement

Agreement are hereby approved and determined to be the best notice practicable under the

circumstances, and the Court finds that the Supplemental Notice complies with the requirements

of Rule 23 of the Federal Rules of Civil Procedure and with applicable standards of due process.

24. Members ofthe Amended Settlement Class who timely opted out ofthe original

Settlement Agreement will be considered to have opted out of the Settlement, unless they opt in

by the deadline established in paragraph 17 of this Order. Members of the Amended Settlement

Class and Sub-Classes will be excluded from the Amended Settlement only ifthey have

complied with the opt-out procedures set forth in the original Notice and original Settlement

Agreement, or the opt-out procedures set forth in the Supplemental Notice and Amended

Settlement Agreement, which procedures are hereby approved as fair and reasonable. Unless

they have so excluded themselves, members ofthe Amended Settlement Class and Sub-Classes

shall be bound by all determinations and judgments in this case relating to the Settlement,

whether favorable or unfavorable, including the dismissal of the Action with prejudice and the

release of Google Releasees, Fully Participating Library Releasees, Cooperating Library

Releasees, Public Domain Library Releasees and Other Library Releasees from liability to

members of the Amended Settlement Class. Persons who timely exclude themselves from the

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 7 of 11

Amended Settlement Class will not be bound by any orders or judgments entered in the Action

related to the proposed settlement, and shall not receive any benefits provided for in the proposed

Amended Settlement Agreement in the event it is approved by the Court.

25. Persons who are members of the Amended Settlement Class and do not exclude

themselves may enter an appearance on their own behalf or through counsel of their own choice

at their own expense. If they do not enter an appearance, they will be represented by Class

CounseL

Any member of the Amended Settlement Class who does not exclude himself or herself

but objects to: (i) the Amended Settlement Agreement; (ii) certification of the Amended

Settlement Class or one or both of the Sub-Classes for purposes of the Settlement; (iii) dismissal

of the Action or the judgment and releases to be entered with respect thereto; and/or (iv) Author

Sub-Class Counsel's application for attorneys' fees and reimbursement of expenses in the

Action; or who otherwise wishes to be heard, may appear in person or through his or her own

attorney at the hearing and present evidence or argument that may be proper and relevant;

provided, however, that no Person other than Class Counsel and Google in the Action shall be

heard and no papers, briefs, pleadings, or other documents submitted by any such Person shall be

received and considered by the Court (unless the Court in its discretion shall thereafter otherwise

::Jo.n.aJ, direct, upon application of such person and for good cause shown), unless, (1) not later than

2010, such Person has filed a statement of the objection and the grounds for the objection

@

(objections filed to the Settlement Agreement need not and should not be refiled), together with

any supporting papers or briefs, with the Court at the address listed below and served copies of

such papers by email or first class mail on the attorneys listed below; and (2) if wishing to

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 8 of 11

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f<..'o. appear. not later than

4

,2010, such Person has filed a Notice ofIntent

to Appear, including the Person's name, address, telephone number and signature, as well as the

name and address of counsel, if any, with the Court at the address listed below and served copies

of such papers by email or first class mail on the attorneys listed below:

The District Court
Office of the Clerk J. Michael McMahon U.S. District Court for the Southern District of New York 500 Pearl Street New York, New York 10007

Author Sub-Class Counsel

Michael J. Boni, Esquire Joanne Zack, Esquire Boni & Zack LLC 15 Saint Asaphs Road Bala Cynwyd, PA 19004 Bookclaims@bonizack.com

Publisher Sub-Class Counsel

Jeffrey P. Cunard, Esquire Bruce P. Keller, Esquire Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 Bookclaims@debevoise.com

Google Counsel

DaralynJ. Durie, Esquire Joseph C. Gratz, Esquire Durie Tangri LLP 332 Pine Street, Suite 200 San Francisco, CA 94104 Bookclaims@durietangri.com

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 9 of 11

26. Any Amended Settlement Class member who retains an attorney to make

objections to the proposed Settlement on behalf of the Amended Settlement Class member or

otherwise to represent the Amended Settlement Class member in this litigation does so at the

Amended Settlement Class member's own expense. Any such attorney must file a notice of

appearance in this litigation with the Clerk ofthis Court and serve copies of the notice on the

~

'1 ' attorneys listed in paragraph 25 above, no later than F<:J,. 2010. Any objection not timely ~

made and in the manner provided herein shall be deemed waived and forever barred.

27. Pending final determination of whether the Amended Settlement Agreement should

be approved, Plaintiffs and all members of the Amended Settlement Class, either individually,

directly, representatively, derivatively, or in any other capacity, are barred and enjoined from

commencing or prosecuting any action or proceeding asserting any claims whatever on behalf of

themselves or the Amended Settlement Class against Google that were brought or could have

been brought in the Third Amended Class Action Complaint, and that relate to or arise out of the

claims as described in that complaint.

28. If the Court does not grant final approval of the Amended Settlement Agreement,

or if the settlement does not become effective for any reason whatever, the Amended Settlement

Agreement (including any modification thereof made with the consent of the parties as provided

therein), any class certification herein and any actions taken or to be taken in connection

therewith (including this Order and any judgment entered herein) shall be terminated and shall

become void and have no further force and effect, except as provided in the Amended Settlement

Agreement.

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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 10 of 11
29. The Settlement Agreement and the Amended Settlement Agreement and any proceedings taken pursuant thereto are not, and should not in any event be: (a) offered or received as evidence of a presumption, concession or admission on the part of any of Plaintiffs, Google, Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries, Other Libraries, any member of the Amended Settlement Class, or any other person; or (b) offered or received as evidence of a presumption, concession or admission by any person of any liability, fault, wrongdoing or other dereliction of duty.
30. The Court reserves jurisdiction over the subject matter and as to each party to the Amended Settlement Agreement with respect to the interpretation, effectuation, and implementation of the Amended Settlement Agreement in accordance with the terms thereof for all purposes, including enforcement of any of the terms thereof at the instance of any party and resolution of any disputes that may arise.
DATED this J~-f"- dayof )JDV~"- 2009.
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Case 1:05-cv-08136-DC Document 772 Filed 11/19/09 Page 11 of 11
Attachment N to Amended Settlement Agreement
Your Rights Under the Amended Settlement Agreement
Members ofthe Amended Settlement Class have the following options:

Wish to remain in the Amended

You need not do anything at this time.

N/A

Settlement Class (if you did not

previously opt out of the Original

Settlement)

Wish to remain in the Amended Settlement Class and wish to be eligible to receive a Cash Payment for any Book . or Insert scanned on or before May 5, i 2009 but haven't yet claimed your Books and Inserts

You must submit a claim by using the Claim Form, available at http://www.googlebooksettlement.com or from the Settlement Administrator.

March 31,2011

Have already claimed Books and Inserts You need not take any additional steps at this N/A

using the Claim Form

time with respect to those Books and Inserts.

Opted out ofthe Original Settlement, You need not - and should not - opt out

N/A

and wish to remain opted out of the

again. Your opting out of the Original

Amended Settlement

Settlement will serve as an opt-out of the

Amended Settlement as welL

Did not opt out of the Original Settlement but wish to opt out of the . Amended Settlement

You may do so by following the instructions in the original Notice and at http://www.googlebooksettlement.com.

_ _ _ _:,2010

Opted out of the Original Settlement and wish to opt back in to the Amended Settlement

You may do so by notifying the Settlement Administrator or Class Counselor by filling out the "Opt-Back-In Form" at http://www.googlebooksettlement.com.

_ _ _.,2010

Wish to file an objection to the terms of the Amended Settlement

have not opted you may file an objection by following the instructions in the original

Attachment N - Supplemental Notice

s'rlllcnded Settlelilent, Ito 040, e"..you may object only to the provisions amending the Original Settlement.
All objections filed in connection with the Original Settlement are preserved unless withdrawn and should not be refiled.
5

 
 Case 1:05-cv-08136-DC Document 779 Filed 12/01/09 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

- -x

THE AUTHORS GUILD et al.,

Plaintiffs,

- against -

MEMORANDUM DECISION

GOOGLE, INC., APPEARANCES:

05 Civ. 8136 (DC)
Defendant.
- -x
IRELL & MANELLA LP By: David Nimmer, Esq. Alexander F. Wiles, Esq.
1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067
andDAVID ZAPOLOSKY, ESQ. Vice President & Associate General Counsel Amazon.com Inc. 1200 12th Avenue South, Suite 1200 Seattle, Washington 98144
Attorneys for Amazon.com Inc.
BONI & ZACK LLC By: Michael J. Boni, Esq.
15 St. Asaphs Road Bala Cynwyd, Pennsylvania 19004
Attorneys for Author Plaintiffs

CHIN, District Judge

Amazon. com, Inc. ("Amazon"), a member of the plaintiff class in this class action, moves for reconsideration of the Court's order granting preliminary approval of the parties' Amended Settlement Agreement. Amazon argues that the Amended Settlement Agreement should not have been preliminarily approved because "it purports to release Google and others from liability for actions they may take in the future." (Mem. at 7). For the

reasons set forth below, the motion is denied.

Case 1:05-cv-08136-DC Document 779 Filed 12/01/09 Page 2 of 3
The standards for reconsideration are strict. See Doe v. New York City Dep't of Soc. Serv., 709 F.2d 782, 789 (2d Cir. 1983), cert. denied, 464 U.S. 864 (1983). To prevail on a motion for reconsideration, the moving party must show an intervening change in the law, the availability of new evidence, or the need to correct clear error or prevent a manifest injustice. McLaughlin v. State of New York, 784 F. Supp. 961, 965 (N.D.N.Y. 1992). Those standards are not met here.
Preliminary approval of a class action settlement proposal "is at most a determination that there is what might be termed 'probable cause' to submit the [settlement] proposal to class members and hold a full-scale hearing as to its fairness." In re Traffic Executive Assoc., 627 F.2d 631, 634 (2d Cir. 1980). At the preliminary approval stage, the Court need decide only if the proposed settlement nfits within the range of possible approval." In re Prudential Sec. Inc. Ltd. P'ships Litig., 163 F.R.D. 200, 209-10 (S.D.N.Y. 1995) (citations omitted) .
In evaluating a proposed class action settlement agreement for preliminary approval -- particularly one as complicated and multi-faceted as the one at issue here - a full fairness analysis is neither feasible nor appropriate. See Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 237 F.R.D. 26, 34 (E.D.N.Y. 2006). Rather, the many nuances of the Amended Settlement Agreement will be considered after the fairness hearing is held on February 18, 2010, and after all class members, amici, and the Department of Justice have had the opportunity to make their views known. The Court will conduct a thorough fairness analysis then, taking all considerations into
2 -

Case 1:05-cv-08136-DC Document 779 Filed 12/01/09 Page 3 of 3

account. Amazon's motion for reconsideration is denied. Amazon

may set forth its arguments in its objections to the proposed

settlement in conjunction with the final settlement approval

process.

Amazon also requests that the Court amend its

preliminary approval order with regard to the mechanism by which

objectors may submit objections to the proposed settlement. The

order provides that objectors may now object only to amended

terms of the settlement agreement, and that the time for

objecting to the original settlement terms has passed. The Court

will consider objections to the amended settlement in conjunction

with previously-submitted objections to the original settlement.

Amazon asks that/ instead/ objectors be permitted to withdraw

their previous objections and to submit superseding objections

that relate to both the original and the amended settlement

terms. This request is denied, but to the extent that objectors

find it necessary to refer to their prior objections now to

present "cohesive and accurate filings/" they may do so.

SO ORDERED.

Dated:

New York/ New York December I, 2009

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 Case 1:05-cv-08136-DC Document 858 Filed 01/28/10 Page 1 of 4

JAN 2 i 2010

Marc Maurer. President
200 East Wells Street at Jernigan Place
Baltimore, MD 21230 Phone4106599314 Fax4106855653 WWW,nfb,org

January 19, 2010

Office of the Clerk J. Michael McMahon U.S. District Court for the Southern District of New York 500 Pearl Street New York, New York 10007

Re: The Authors Guild et al. v. Google, Inc. Case No. 05 CV 8136-DC

Dear Mr. McMahon:

I am writing to request that this Court permit the National Federation of the Blind to speak briefly in favor of the proposed settlement at the fairness hearing in the above referenced matter scheduled for February 18, 2010. Our statement of interest follows.

The National Federation of the Blind (NFB) is the largest national membership organization of blind people in the United States. The NFB is a nonprofit corporation duly organized under the laws of the District of Columbia with its principal place of business in Baltimore, Maryland, It has affiliates in all fifty states; Washington, D.C.; and Puerto Rico. The vast majority of the approximately 50,000 members are blind persons. The NFB is widely recognized by the public, Congress. executive agencies of government, and the courts as the most significant collective and representative voice on behalf of blind Americans and their families. The purpose of the NFB is to promote the general welfare of the blind by (1) assisting the blind in their efforts to integrate themselves into society on terms of equality and (2) removing barriers and changing social attitudes, stereotypes, and mistaken beliefs that sighted and blind persons hold

( Voice of the Nation's Blind

- - - - - - - - --_._._...
Case 1:05-cv-08136-DC Document 858 Filed 01/28/10 Page 2 of 4
Mr. J. Michael McMahon January 19, 2010 Page two
concerning the limitations created by blindness, resulting in the denial of opportunity to blind persons in virtually every sphere of life.
The NFB and many of its members have long been actively involved in
promoting adaptive technology and ensuring the accessibility of information for the blind, so that blind persons can live and work independently in today's technology-dependent world.
In recent years, recognizing the potential digital books have to offer the
blind, the NFB has focused significant attention and resources on ensuring
that digital materials are accessible to the blind. Because the terms of the proposed settlement require that all books under the agreement be
accessible to the blind, if this Court approves the settlement, the NFB and its
members, as well as the estimated thirty million Americans who cannot read print due to other disabilities, will benefit from unprecedented access to information.
The terms of the settlement allow Google to provide the material it offers users "in a manner that accommodates users with print disabilities so that such users have a substantially similar user experience as users without print disabilities." A user with a print disability under the agreement is one who is "unable to read or use standard printed material due to blindness, visual disability, physical limitations, organic dysfunction, or dyslexia." The settlement, if approved, will therefore bring the printed word to as many as thirty million Americans who currently have limited access to it. Blind people will be able to search for books through the Google Books interface and purchase, borrow, or read at a public library any of the books that are available to the general public, in a format that is compatible with text enlargement software, text-to-speech screen access software, and refreshable Braille devices. If this settlement is approved, blind people will have greater access to books than we have ever had in human history.
( Voice of the Nation's Blind

Case 1:05-cv-08136-DC Document 858 Filed 01/28/10 Page 3 of 4
Mr. J. Michael McMahon January 19, 2010 Page three
Currently, the blind have access to a relatively sparse selection of titles produced by government and nonprofit organizations dedicated to serving our needs. The primary source of reading material for most blind Americans is the National Library Service for the Blind and Physically Handicapped of the Library of Congress. While this service has done an outstanding job of providing books to the blind within budgetary constraints, it has, at most, perhaps 70,000 circulating titles in its collection. Furthermore, even if all methods of providing content in a format accessible to the blind, including commercial audio books, are taken into consideration, it is estimated that only 5 percent of the books published each year are ever produced in a format that can be used by the blind or others with print disabilities.
While the blind have for years been tantalized by the promise of greater access through e-books, which are inherently accessible, the sad fact is that no other provider of e-books has yet made its offerings accessible to the blind. Instead, publishers distribute their e-books through inaccessible devices and platforms, use digital rights management schemes to prevent screen access technology and other methods used by the blind from accessing these books, or both. Prior to this landmark settlement agreement, neither authors and publishers nor any entity promoting e-book technology had ever consented to any system that would make such a large number of books immediately accessible to the blind and other Americans with print disabilities. The Google settlement therefore represents the only present prospect for blind people to access electronic texts. It is our hope and belief that the settlement will also represent a paradigm shift that will encourage other publishers and e-book distributors to make accessibility a priority.
Libraries are currently distributing e-books to borrowers. An increasing number of universities require students to use e-textbooks. Some state governments are contemplating replacing printed books with e-textbooks. The e-book market is expanding rapidly, and the Google settlement represents the only substantial effort to make this form of information usable by the blind. The technology exists to make all of this distributed information readily accessible to the blind. Unless an immediate effort to implement
( Voice of the Nation's Blind

Case 1:05-cv-08136-DC Document 858 Filed 01/28/10 Page 4 of 4
Mr. J. Michael McMahon January 19, 2010 Page four
such a system is pursued, however, the result for employment for blind people will be devastating. Already the lack of information has meant that fewer than 50 percent of blind people in their school years will graduate from high school. Already the lack of information has contributed to an unemployment rate for the blind in excess of 70 percent. Already the lack of information has prevented blind students from being able to matriculate in college courses of their choosing. Blind people are willing to pay for books, but they must be books we can read. The proposed Google settlement is a promise that this magnificent notion may become real.
For the foregoing reasons, the National Federation of the Blind respectfully requests the opportunity to address the court briefly at the February 18 fairness hearing regarding the proposed settlement in this matter. Our position is further explicated in the amicus brief we have submitted along with seven other organizations representing the blind or others with print disabilities. If the court has further questions or concerns, we are happy to cooperate. I can be reached at 200 East Wells Street, Baltimore, Maryland, 21230; or by telephone at (410) 659-9314. Sincerely,
Marc Maurer, President NATIONAL FEDERATION OF THE BLIND
MMlwmb
( Voice of the Nation's Blind

 
 'ITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -X
THE AUTHORS GUILD et al.,
Plaintiffs,
- against -
GOOGLE INC.,
Defendant.

OPINION 05 Civ. 8136 (DC)

APPEARANCES : (See last page) CHIN, Circuit Judge
Before the Court is plaintiffs' motion pursuant ,to Rule 23 of the Federal Rules of Civil Procedure for final approval of the proposed settlement of this class action on the terms set forth in the Amended Settlement Agreement (the "ASAH). The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.
While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action - - which was brought against defendant Google Inc. ("GoogleI1)to challenge its scanning of books and display of "snippets" for on-line searching - - to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire

books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.
Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys' fees and costs is denied, without prejudice.
BACKGROUND A. The Facts and Prior Proceedings
In 2004, Google announced that it had entered into agreements with several major research libraries to digitally copy books and other writings in their collections. Since then, Google has scanned more than 12 million books. It has delivered digital copies to the participating libraries, created an electronic database of books, and made text available for online searching. See generally Emily Anne Proskine, Google's Technicolor Dreamcoat: A Copyright Analysis of the Google Book Search Library Project, 21 Berkeley Tech. L.J. 213, 220-21 (2006) (describing project). Google users can search its "digital
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library" and view excerpts -- "snippets" -- from books in its digital collection.1
The benefits of Google's book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books -- particularly out-of-print books, many of which are falling apart buried in library stacks -- will be preserved and given new life.2

1

The term "digital library" apparently first appeared in

the 1980s, see Mary Murrell, Digital + Library: Mass Book

Digitization as Collective Inquiry, 55 N.Y.L. Sch. L. Rev. 221,

230 (2010), although the notion of a "universal library -- the

utopian dream of gathering [] all human knowledge and,

especially, all the books ever written in one place" -- has been

with us for many centuries, id. at 226; see also id. at 226-36

(detailing that history). It is estimated that there are 174

million unique books. (Clancy Decl. ¶ 11, ECF No. 946). The

Republic of Germany reports that certain "European nations have

taken affirmative steps to create a European Digital Library

('Europeana') that balances the needs of authors and publishers

with those of users in a way that meets the interests of both."

(Mem. in Opp'n to ASA of Republic of Germany 2, ECF No. 852

("Germany Mem.")).

2

See, e.g., Matthew Sag, The Google Book Settlement &

the Fair Use Counterfactual, 55 N.Y.L. Sch. L. Rev. 19, 73 (2010)

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Millions of the books scanned by Google, however, were still under copyright, and Google did not obtain copyright permission to scan the books.3 As a consequence, in 2005, certain authors and publishers brought this class action and the related case, respectively, charging Google with copyright infringement. The authors seek both damages and injunctive relief, and the publishers seek injunctive relief. Google's principal defense is fair use under § 107 of the Copyright Act, 17 U.S.C. § 107.
The parties engaged in document discovery and, in the fall of 2006, began settlement negotiations. On October 28,

("There is no doubt that approval of the settlement will yield enormous cultural, intellectual, and educational benefits. It will expand access to millions of out-of-print books for all readers; it will also facilitate a revolution in access for print-disabled persons and users in remote locations without immediate geographic access to the nation's marquee research libraries. . . . From the perspective of authors and publishers, the GBS [Google Book Search] settlement promises new ways to profit from out-of-print works, as well as the possibility that increased access will draw in new readers and open up new niche markets.").

3

"Google proceeded to scan, digitize, and copy books

. . . without attempting to contract with rightsholders

beforehand to obtain rights and licenses to copy in-copyright

books and display portions of them on its website. In doing so,

Google reversed the default copyright arrangement by shifting the

burden to rightsholders to assert their rights." Alessandra

Glorioso, Google Books: An Orphan Works Solution, 38 Hofstra L.

Rev. 971, 992 (2010) (footnotes omitted).

-4-

2008, after extended discussions, the parties filed a proposed settlement agreement. The proposed settlement was preliminarily approved by Judge John E. Sprizzo by order entered November 17, 2008 (ECF No. 64). Notice of the proposed settlement triggered hundreds of objections. As a consequence, the parties began discussing possible modifications to the proposed settlement to address at least some of the concerns raised by objectors and others. On November 13, 2009, the parties executed the ASA and filed a motion for final approval of the ASA pursuant to Federal Rule of Civil Procedure 23(e) (ECF No. 768). I entered an order preliminarily approving the ASA on November 19, 2009 (ECF No. 772).
Notice of the ASA was disseminated. As was the case with the original proposed settlement, hundreds of class members objected to the ASA. A few wrote in its favor. The Department of Justice ("DOJ") filed a statement of interest raising certain concerns (ECF No. 922). Amici curiae weighed in, both for and against the proposed settlement. The Court conducted a fairness hearing on February 18, 2010. B. The ASA
The ASA is a complex document. It is 166 pages long, not including attachments. Article I sets forth 162 definitions,
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including the capitalized terms discussed below. I will not describe the ASA in detail, but will summarize its principal provisions.
The Class consists of all persons (and their heirs, successors, and assigns) who, as of January 5, 2009, own a U.S. copyright interest in one or more Books or Inserts4 implicated by a use authorized by the ASA. Certain individuals and entities are excluded. (ASA § 1.13). The Author Sub-Class consists principally of members of the Class who are authors and their heirs, successors, and assigns. (ASA § 1.17). The Publisher Sub-Class consists of all members of the Class that are publishing companies that own a U.S. copyright interest in an Insert or have published a Book. (ASA § 1.122).
Under the ASA, Google is authorized to (1) continue to digitize Books and Inserts, (2) sell subscriptions to an electronic Books database, (3) sell online access to individual Books, (4) sell advertising on pages from Books, and (5) make certain other prescribed uses. (ASA §§ 3.1, 4.1-4.8; see also ASA § 1.149). The rights granted to Google are non-exclusive;

4

An Insert includes, for example, a foreword, prologue,

or essay that is independently copyrighted, if certain other

requirements are met. (ASA § 1.75).

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Rightsholders retain the right to authorize others, including competitors of Google, to use their Books in any way. (ASA §§ 2.4, 3.1(a)). Google will pay to Rightsholders 63% of all revenues received from these uses, and revenues will be distributed in accordance with a Plan of Allocation and AuthorPublisher Procedures. (ASA §§ 2.1-2.4, 4.5, 5.4 & Attachs. A, C).
The ASA will establish a Book Rights Registry (the "Registry") that will maintain a database of Rightsholders, and the Registry will administer distributions of revenues. (ASA § 6.1(b)). Google will fund the establishment and initial operations of the Registry with a payment of $34.5 million (which will also cover the costs of notice to the Class). (ASA § 2.1(c)). The Registry will be managed by a Board consisting of an equal number of Author Sub-Class and Publisher Sub-Class representatives (at least four each). (ASA § 6.2(b)). The ASA will also create an "independent" Unclaimed Works Fiduciary to represent interests with respect to, and assume responsibility for certain decisions pertaining to, unclaimed works, including pricing and book classification. (ASA §§ 3.2(e)(i), 3.3, 3.10, 4.2(c)(i), 4.3, 4.5(b)(ii), 4.7, 6.2(b)(ii)).
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Rightsholders can exclude their Books from some or all of the uses listed above, and they can remove their Books altogether from the database. At any time Rightsholders can ask Google not to digitize any Books not yet digitized, and Google will use "reasonable efforts" not to digitize any such Books. (ASA §§ 1.124, 3.5(a)(i)). A Rightsholder may also request removal from the Registry of a Book already digitized, and Google is obligated to remove the Book "as soon as reasonably practicable, but it any event no later than thirty (30) days." (ASA § 3.5(a)(i)).
As for Books and Inserts digitized before May 5, 2009, Google will pay $45 million into a Settlement Fund to make Cash Payments to Rightsholders -- at least $60 per Principal Work, $15 per Entire Insert, and $5 per Partial Insert, for which at least one Rightsholder has registered a valid claim on or before the agreed-upon deadline. (ASA §§ 2.1(b), 13.4; see also Stip. & Order to Extend Cash Payment Deadline 1-2, Feb. 18, 2011, ECF No. 970). These are minimum amounts, and if more than $45 million becomes necessary to pay all eligible claims, Google will provide additional funds. If payment of all eligible claims requires less than $45 million, the Registry will distribute greater amounts up to a maximum of $300 per Principal Work, $75 per Entire Insert, and $25 per Partial Insert. (ASA § 5.1).
-8-

Going forward, the ASA provides for Google to split revenues with Rightsholders. For works covered by the ASA, Google will pay to the Registry, on behalf of Rightsholders, 70% of net revenues from sales and advertising; net revenues reflect a 10% deduction for Google's operating costs. (ASA §§ 1.89, 1.90, 4.5(a)(i)-(ii)). Revenue splits can be renegotiated by individual Rightsholders. (ASA § 4.5(a)(iii)).
The ASA obligates the Registry to use "commercially reasonable efforts" to locate Rightsholders. (ASA § 6.1(c)). The Registry will receive payments from Google on behalf of Rightsholders and will in turn distribute them to registered Rightsholders. (ASA § 6.1(d)). Funds unclaimed after five years may be used, in part, to cover the expense of locating owners of unclaimed works. (ASA § 6.3(a)(i)(2)). After ten years, unclaimed funds may be distributed to literary-based charities. (ASA § 6.3(a)(i)(3)).5

5

The States of Connecticut, Massachusetts, Pennsylvania,

Texas, and Washington objected specifically to provisions of the

ASA dealing with unclaimed funds. (See Objection to ASA of

Massachusetts, Pennsylvania & Washington, ECF No. 860; Objection

of Connecticut to ASA, ECF No. 851; Letter from Att'y Gen. of

Tex. to Court (Jan. 27, 2010) (ECF No. 887)). I need not rule on

these objections at this time, as no unclaimed funds yet exist

(see Pls.' Suppl. Mem. Responding to Specific Objections 154-55,

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The ASA distinguishes between in-print (Commercially Available) and out-of-print (not Commercially Available) Books. (ASA §§ 1.31, 3.2, 3.3). Google may not display in-print Books at all unless and until it receives prior express authorization from the Books' Rightsholders. The ASA does give Google the right to make Non-Display Uses of in-print Books. (ASA § 3.4). Google may display out-of-print Books without the prior express authorization of the Books' Rightsholders, but its right to do so ceases when and if the Rightsholder directs Google to stop. C. The Objections
Approximately 500 submissions were filed commenting on the ASA and the original proposed settlement. The vast majority objected to the ASA.6 Some 6800 class members opted out.

ECF No. 955 ("Pls.' Suppl. Mem.")), and in light of my rulings below.

6

Plaintiffs argue that the number of objections received

is small when "viewed in light of the size of the Class, which

numbers in the hundreds of thousands, or millions." (Pls.'

Suppl. Mem. 1-2 & n.2, ECF No. 955). Some wrote in support of

the ASA. (See, e.g., Letter from Gregory Crane to Court 1 (Aug.

7, 2009) (ECF No. 898) ("I am writing to support making the

millions of books that Google has digitized reach the widest

possible audience as quickly as possible. . . . This is a

watershed event and can serve as a catalyst for the reinvention

of education, research and intellectual life."); Letter from

Nat'l Fed'n of the Blind to Court 2 (Jan. 19, 2010) (ECF No. 858)

("[I]f this Court approves the settlement, the NFB and its

members, as well as the estimated thirty million Americans who

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(Fairness Hr'g Tr. 166, Feb. 18, 2010 (Michael J. Boni)). The major objections are as follows:
1. Adequacy of Class Notice Certain objectors contend that class members were given
inadequate notice of the original proposed settlement as well as of the ASA. For example, the Science Fiction and Fantasy Writers of America, Inc., the American Society of Journalists and Authors, Inc., and certain foreign publisher and authors associations object to the adequacy of notice.
2. Adequacy of Class Representation Certain objectors, including some foreign authors,
academic authors, Insert authors, and others object to the adequacy of representation, contending that their interests are at odds with the interests of the representative plaintiffs.
3. Scope of Relief Under Rule 23 Certain objectors as well as the United States argue
that the ASA will improperly use Rule 23 to shape a "forwardlooking" business arrangement that would release claims not
cannot read print due to other disabilities, will benefit from unprecedented access to information."); Letter from Publishers Ass'n to Court 1-2 (Jan. 27, 2010) (ECF No. 825); Letter from Canadian Publishers' Council to Court (Jan. 27, 2010) (ECF No. 826)).
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before the Court. They contend that the case is about the scanning of books and the display of "snippets," while the ASA will release claims regarding the display and sale of entire books.
4. Copyright Concerns Certain objectors, including two of Google's major
competitors, Amazon.com, Inc. ("Amazon") and Microsoft Corp. ("Microsoft"), object to the ASA on the grounds it would violate existing copyright law. They contend, for example, that judicial approval of the ASA would infringe on Congress's constitutional authority over copyright law. They contend further that the provisions of the ASA pertaining to "orphan works" would result in the involuntary transfer of copyrights in violation of the Copyright Act, as copyrighted works would be licensed without the owners' consent. See 17 U.S.C. § 201(e).
5. Antitrust Concerns Certain objectors oppose the ASA on antitrust grounds,
arguing that (1) certain pricing mechanisms would constitute horizontal agreements that would violate the Sherman Act; (2) the ASA would effectively grant Google a monopoly over digital books, and, in particular, orphan books; and (3) such a monopoly would
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further entrench Google's dominant position in the online search business.
6. Privacy Concerns Certain objectors, including the Center for Democracy
and Technology and the Electronic Privacy Information Center, contend that the ASA raises significant privacy issues, as the digitization of books would enable Google to amass a huge collection of information, including private information about identifiable users, without providing adequate protections regarding the use of such information.
7. International Law Concerns Certain foreign authors and entities contend that the
ASA, even with its narrowed coverage of non-U.S. works, would violate international law by, for example, requiring foreign rightsholders to determine whether they are covered and therefore must "opt out," and also by favoring rightsholders from certain nations.
The parties have submitted detailed responses to all of the objections.
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DISCUSSION A. Applicable Law
Under Rule 23(e) of the Federal Rules of Civil Procedure, a settlement of a class action requires approval of the court. Fed. R. Civ. P. 23(e). The court may approve a settlement that is binding on the class only if it determines that the settlement is "fair, adequate, and reasonable, and not a product of collusion." Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000); see Fed. R. Civ. P. 23(e)(2). This analysis requires the court to consider both "the settlement's terms and the negotiating process leading to settlement." Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir.), cert. denied, 125 S. Ct. 2277 (2005). "A 'presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length negotiations between experienced, capable counsel after meaningful discovery.'" Id. (quoting Manual for Complex Litigation (Third) § 30.42 (1995)).
Rule 23(e) does not set forth the factors a court is to consider in determining whether an agreement is fair, reasonable, and adequate. In this Circuit, courts traditionally consider the following factors, commonly referred to as the Grinnell factors: (1) the complexity, expense, and likely duration of the
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litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through trial; (7) the ability of defendants to withstand greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal citations omitted), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); see also Wal-Mart Stores, 396 F.3d at 117-19 (applying Grinnell factors in considering approval of settlement). The weight given to any particular factor varies based on the facts and circumstances of the case. 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1797.1, at 77 (3d ed. 2005).
Public policy, of course, favors settlement. Wal-Mart Stores, 396 F.3d at 116-17; accord Williams v. First Nat'l Bank, 216 U.S. 582, 595 (1910) ("Compromises of disputed claims are favored by the courts."); TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 461 (2d Cir. 1982) (noting "the paramount policy of
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encouraging settlements"). Consequently, when evaluating a settlement agreement, the court is not to substitute its judgment for that of the parties, nor is it to turn consideration of the adequacy of the settlement "into a trial or a rehearsal of the trial." Grinnell, 495 F.2d at 462. "Rather, the Court's responsibility is to reach an intelligent and objective opinion of the probabilities of ultimate success should the claims be litigated and to form an educated estimate of the complexity, expense and likely duration of such litigation and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise." In re Met. Life Derivative Litig., 935 F. Supp. 286, 292 (S.D.N.Y. 1996) (quoting Lewis v. Newman, 59 F.R.D. 525, 527-28 (S.D.N.Y. 1973) (internal quotation marks and ellipsis omitted)).
In this case, the fairness and reasonableness of the ASA has been challenged on the basis that it would release claims not properly before the Court. The Second Circuit has observed that "[b]road class action settlements are common," and that consequently "[p]laintiffs in a class action may release claims that were or could have been pled in exchange for settlement relief." Wal-Mart Stores, 396 F.3d at 106. But the Second Circuit has recognized that there are limits. First, "class
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action releases may include claims not presented and even those which could not have been presented as long as the released conduct arises out of the 'identical factual predicate' as the settled conduct." Id. at 107 (quoting TBK Partners, 675 F.2d at 460). Second, the released claims must be adequately represented prior to settlement, in the sense that "[c]laims arising from a shared set of facts will not be precluded where class plaintiffs have not adequately represented the interests of class members." Id. at 106-07, 110.7 B. Application
I consider the "settlement's terms" and the "negotiating process" in the context of discussing the Grinnell

7

In the context of a consent decree resolving a race

discrimination class action, the Supreme Court has identified

similar concerns while addressing the scope of a federal court's

remedial authority. In Local No. 93, Int'l Ass'n of

Firefighters, AFL-CIO C.L.C. v. City of Cleveland (Firefighters),

it held that a consent decree must (1) "spring from and serve to

resolve a dispute within the court's subject-matter

jurisdiction"; (2) "com[e] within the general scope of the case

made by the pleadings"; and (3) "further the objectives of the

law upon which the complaint was based." 478 U.S. 501, 525

(1986) (alteration in original) (internal quotation marks

omitted). Although the consent decree in Firefighters permitted

forward-looking conduct, the conduct was remedial in nature and

was intended to address the harm that was the subject of the

lawsuit, i.e., the past discrimination. The consent decree did

not create new and independent forward-looking business

arrangements.

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factors. As the Second Circuit did in Wal-Mart Stores, I combine certain of the factors and discuss them together. See 396 F.3d at 118 (combining fourth, fifth, and sixth factors), 119 (combining eighth and ninth factors). Of course, I consider also the objections to the ASA.
As a preliminary matter, I conclude that most of the Grinnell factors favor approval of the settlement. The ASA was the product of arm's length negotiations between experienced, capable counsel, with assistance from DOJ. Further litigation would be complex, expensive, and time-consuming. Although the parties have conducted only limited discovery, the case has been pending for some years. The legal and factual issues are complex, and there is a risk that if plaintiffs were to proceed to trial, they would be unable to establish liability or prove damages. As discussed further below, substantial questions exist as to whether the case could be maintained as a class action, in its present form, through trial. In light of the attendant risks, the financial aspects of the ASA fall well within the range of reasonableness.
Only two of the Grinnell factors weigh against approval of the settlement: the reaction of the class and defendant's ability to withstand judgment. As for the latter, there is no
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real risk that a judgment following trial would render Google insolvent, and thus the avoidance of insolvency is not an issue. The former, however, is important. Not only are the objections great in number, some of the concerns are significant. Further, an extremely high number of class members -- some 6800 -- opted out. See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785, 812 (3d Cir. 1995) (noting that "the number and vociferousness of the objectors" is a factor to consider in weighing reasonableness of proposed settlement). I turn to the objections now.
1. Adequacy of Class Notice The objections to the adequacy of the class notice are
rejected. I am satisfied that the class received adequate notice. More than 1.26 million individual notices in thirty-six languages were sent directly to copyright owners, potential class members, and publisher and author associations worldwide. (Pls.' Suppl. Mem. 36-37, 54-60, ECF No. 955). Plaintiffs also established a website to provide information about the case, the original proposed settlement, and the ASA. Of course, the case has received enormous publicity, and it is hard to imagine that many class members were unaware of the lawsuit. (But see
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Objections of Wash. Legal Found. to ASA & Class Certification, ECF No. 901 (objecting to notice)).
2. Adequacy of Class Representation The adequacy of representation inquiry considers
whether "1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). Here, representative plaintiffs are represented by counsel highly experienced in class action and copyright litigation. I am confident that they are qualified, experienced, and able to conduct the litigation.
As to the first prong of the analysis, however, as discussed below, I conclude that there is a substantial question as to the existence of antagonistic interests between named plaintiffs and certain members of the class. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 595 (1997) ("[T]he settling parties achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected."). While it is true, as plaintiffs argue, that "differences in views or characteristics between class members do not mean the Class has not been adequately
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represented" (Pls.' Suppl. Mem. 24, ECF No. 955), the differences here are troubling.
3. Scope of Relief Under Rule 23 The ASA can be divided into two distinct parts. The
first is a settlement of past conduct and would release Google from liability for past copyright infringement. The second would transfer to Google certain rights in exchange for future and ongoing arrangements, including the sharing of future proceeds, and it would release Google (and others) from liability for certain future acts. (See, e.g., ASA §§ 10.1(f), 10.1(g), 10.2(a)).8 I conclude that this second part of the ASA contemplates an arrangement that exceeds what the Court may permit under Rule 23. As articulated by the United States, the ASA "is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation." (DOJ Statement of

8

The United States is of the view that the first part of

the settlement -- settling claims for past infringement based on

digitization for use of snippets -- is a matter that is

appropriately settled in this case, while the second part -- the

series of forward-looking commercial arrangements -- is not.

(Hr'g Tr. 117-18 (William Cavanaugh)).

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Interest 2, Feb. 4, 2010, ECF No. 922 ("DOJ SOI")).9 Moreover, the Rules Enabling Act provides that the rules of procedure "shall not abridge, enlarge or modify any substantive right." 28 U.S.C. § 2072(b). As the Supreme Court noted in Amchem: "Rule 23 . . . must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view." 521 U.S. at 629.
Although I am persuaded that the parties are seeking in good faith to use this class action to create an effective and beneficial marketplace for digital books, I am troubled in several respects.
a. A Matter for Congress First, the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court. The ASA would create, for example, the Registry and the Fiduciary. Together, they would represent -- purportedly on an independent basis -- the interests of Rightsholders, including those who have not registered but are covered merely because they did not opt out.

9

But see Uhl v. Thoroughbred Tech. & Telecomm., Inc.,

309 F.3d 978 (7th Cir. 2002) (affirming approval of settlement of

class action based on forward-looking business arrangement).

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The questions of who should be entrusted with
guardianship over orphan books, under what terms, and with what
safeguards are matters more appropriately decided by Congress
than through an agreement among private, self-interested parties.
Indeed, the Supreme Court has held that "it is generally for
Congress, not the courts, to decide how best to pursue the
Copyright Clause's objectives." Eldred v. Ashcroft, 537 U.S.
186, 212 (2003); accord Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 429 (1984) ("[I]t is Congress that
has been assigned the task of defining the scope of the limited
monopoly that should be granted to authors or to inventors in
order to give the public appropriate access to their work product.").10 In Sony, the Supreme Court noted that it was
Congress's responsibility to adapt the copyright laws in response
to changes in technology:
From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment -- the printing press -- that gave rise to the original need for copyright protection.
10 See also Amchem Prods., 521 U.S. at 628-29 ("The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution.").
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Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned new rules that new technology made necessary. 464 U.S. at 430-31 (footnotes omitted). In fact, Congress has made "longstanding efforts" to enact legislation to address the issue of orphan works. (Objections of Microsoft to ASA & Certification of Class 4-5 & nn.10-11, ECF No. 874 (quoting Statement of Marybeth Peters)). "Orphan Books" legislation was proposed in Congress in 2006 and 2008, but the proposed laws were not enacted. See Glorioso, supra n.3, at 980 (reviewing proposed legislation). As discussed below, the ASA would also raise international concerns, and foreign countries, authors, and publishers have asserted that the ASA would violate international law. For this reason as well, the matter is better left for Congress. b. The Scope of the Pleadings Second, the ASA would release claims well beyond those contemplated by the pleadings. This case was brought to challenge Google's use of "snippets," as plaintiffs alleged that Google's scanning of books and display of snippets for online searching constituted copyright infringement. Google defended by
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arguing that it was permitted by the fair use doctrine to make available small portions of such works in response to search requests. There was no allegation that Google was making full books available online, and the case was not about full access to copyrighted works. The case was about the use of an indexing and searching tool, not the sale of complete copyrighted works.
The parties argue that the pleadings are not limited to plaintiffs' claims with respect to the display of snippets, citing the Third Amended Complaint. (Pls.' Suppl. Mem. 33-34, ECF No. 955 (quoting Third Am. Compl. ¶¶ 4-8, 60, ECF No. 782)). While it is true that the pleadings refer to broader conduct (including the creation of "digital copies" of books (Third Am. Compl. ¶ 4, ECF No. 782; see also Hr'g Tr. 158-59 ("When the publishers sued, they sued for the intial act of scanning our books without permission, cover to cover. We were not so concerned about what uses were made.") (Bruce P. Keller))), the copying and display of copyrighted material occurred in the context of "Google Book Search," which "is designed to allow users to search the text of books online. The digital archiving of the Books that are the subject of this lawsuit was undertaken by Google as part of Google Book Search." (Third Am. Compl. ¶ 41, ECF No. 782; see also id. ¶ 55 (describing Google's
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agreements with four university libraries and one public library
"to 'digitally scan books from their collections so that users
worldwide can search them in Google'")).
Google did not scan the books to make them available
for purchase, and, indeed, Google would have no colorable defense
to a claim of infringement based on the unauthorized copying and
selling or other exploitation of entire copyrighted books.11
Yet, the ASA would grant Google the right to sell full access to
copyrighted works that it otherwise would have no right to
exploit.12 The ASA would grant Google control over the digital
commercialization of millions of books, including orphan books
11 Counsel for Google acknowledged at the fairness hearing that Google would not have tried to defend digitizing and selling entire books. (Hr'g Tr. 150 (Daralyn J. Durie)).
12 Certain authors note, for example, that the ASA would release other intellectual property claims that were never asserted in the case. (Objections of Arlo Guthrie et al. to Proposed Class Action Settlement Agreement 14, ECF Nos. 209, 849-2 ("This expansive release [ASA § 10.1(f)] bars class members from protecting their most fundamental intellectual property rights, including for example the trademark interests of Catherine Ryan Hyde [to the mark Pay It Forward]. . . . Moreover, the release would preclude authors from pursuing any number of other claims commonly associated with full protection of their intellectual property rights -- including for example right of publicity, disparagement, and tortious interference claims -- that also were not alleged.")).
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and other unclaimed works.13 And it would do so even though
Google engaged in wholesale, blatant copying, without first
obtaining copyright permissions. While its competitors went
through the "painstaking" and "costly" process of obtaining
permissions before scanning copyrighted books, "Google by
comparison took a shortcut by copying anything and everything
regardless of copyright status." (Hr'g Tr. 43 (Thomas Rubin,
counsel for Microsoft)). As one objector put it: "Google
pursued its copyright project in calculated disregard of authors'
rights. Its business plan was: 'So, sue me.'" (Objection of
Robert M. Kunstadt to Proposed Settlement 3, ECF No. 74).14
13 As articulated by the academic authors objecting to the ASA: "The Google Book Search (GBS) initiative envisioned in the [ASA] is not a library. It is instead a complex and large-scale commercial enterprise in which Google -- and Google alone -- will obtain a license to sell millions of books for decades to come." (Letter from Pamela Samuelson to Court (Jan. 27, 2010) (ECF No. 893) ("Samuelson Letter")).
14 Some objectors accused Google of engaging in piracy. (See, e.g., Letter from Erika Faith Larsen to Court 1 (Jan. 27, 2010) (ECF No. 818) ("I am opting out because I believe this to be a copyright infringement and a form of pirating."); Letter from William Ash to Court 1 (Jan. 12, 2010) (ECF No. 884) ("Google . . . is trying to benefit by weakening copyright. It seems to first want to do this with 'orphaned' works based on the shady practice of stealing by finding. . . . Google is trying to legalize piracy.")).
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Applying Firefighters, I conclude that the released
claims would not come within "the general scope of the case made
by the pleadings." 478 U.S. at 525.15 Applying Wal-Mart Stores,
I conclude that the released conduct would not arise out of the
"identical factual predicate" as the conduct that is the subject
of the settled claims. 396 F.3d at 107 (citation omitted).
c. The Interests of Class Members
Third, the class plaintiffs have not adequately
represented the interests of at least certain class members. See
Wal-Mart Stores, 396 F.3d at 106-07, 110. The academic author
objectors, for example, note that their interests and values
differ from those of the named plaintiffs: "Academic authors,
almost by definition, are committed to maximizing access to
15 As for the third prong of the Firefighters test, supporters of the proposed settlement argue that it would "serve[] copyright law's central purpose of advancing knowledge and culture by furthering copyright's social utility and social justice goals through inclusion of those who have been excluded. The Google Books Project furthers these goals by using an accepted copyright mechanism (i.e., a private, court-supervised settlement) to address the novel copyright problems presented by the new technologies, while still preserving the rights of copyright holders." Lateef Mtima & Steven D. Jamar, Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information, 55 N.Y.L. Sch. L. Rev. 77, 79-80 (2010); see Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 545 (1985) ("[C]opyright is intended to increase and not to impede the harvest of knowledge."). As discussed below, however, the ASA raises significant copyright concerns as well.
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knowledge. The [Authors] Guild and the [Association of American Publishers], by contrast, are institutionally committed to maximizing profits." (Samuelson Letter 3 (ECF No. 893)).16 In addition, the class representatives have interests that may be at odds, at least in part, with interests of foreign Rightsholders, as discussed below. Likewise, the named plaintiffs have interests different from Rightsholders who do not come forward to register. The parties have little incentive to identify and locate the owners of unclaimed works, as fewer opt-outs will mean more unclaimed works for Google to exploit.17
Plaintiffs argue that in "virtually every class action settlement, a percentage (often a high percentage) of class members does not file claims or otherwise participate but, nevertheless, their claims are released. From a Rule 23 perspective, there is no more an 'orphan' problem here than in any other class action settlement in which less than 100% of the
16 Many academic authors, for example, would prefer that orphan books be treated on an "open access" or "free use" basis rather than one where they would be controlled by one private entity. (See Hr'g Tr. 55-57 (Pamela Samuelson)).
17 Plaintiffs contend that "one of the Registry's core missions is to locate Rightsholders of unclaimed out-of-print books . . . . The Registry will strive to locate the Rightsholders of unclaimed Books." (Pls.' Suppl. Mem. 21, ECF No. 955).
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class participates." (Pls.' Suppl. Mem. 3-4, ECF No. 955). I disagree. While it is true that in virtually every class action many class members are never heard from, the difference is that in other class actions class members are merely releasing "claims" for damages for purported past aggrievements. In contrast, here class members would be giving up certain property rights in their creative works, and they would be deemed -- by their silence -- to have granted to Google a license to future use of their copyrighted works.
4. Copyright Concerns As alluded to above, the Copyright Clause of the
Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I, § 8, cl. 8. The Supreme Court has recognized that courts should encroach only reluctantly on Congress's legislative prerogative to address copyright issues presented by technological developments: "Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials." Sony, 464 U.S. at 431.
-30-

The ASA raises statutory concerns as well. Certain
objectors contend that the ASA's opt-out provisions would grant
Google the ability to expropriate the rights of copyright owners
who have not agreed to transfer those rights. (See, e.g.,
Objection of Amazon to ASA 9, ECF No. 823). The argument may
have merit. The Copyright Act provides:
When an individual author's ownership of a copyright, or any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under the copyright, shall be given effect under this title, except as provided under title 11.
17 U.S.C. § 201(e). Yet, the ASA proposes to expropriate rights
of individuals involuntarily.
Plaintiffs argue that § 201(e) was enacted to prevent
governmental suppression of copyrights and that it does not apply
to private parties. (Pls.' Suppl. Mem. 113, ECF No. 955 (citing,
e.g., In re Peregrine Entm't, Ltd., 116 B.R. 194, 206 n.16 (C.D.
Cal. 1990))). The statute, however, refers to "any governmental
body or other official or organization," and at a minimum a fair
question exists as to whether this Court or the Registry or the
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Fiduciary would be expropriating copyright interests belonging to authors who have not voluntarily transferred them. As Professor Nimmer has written: "By its terms Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts of seizure, etc., by any 'organization' as well." 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.04 (Rev. Ed. 2010) (footnote omitted). In any event, I need not decide the precise question of whether the ASA would in fact violate § 201(e); the notion that a court-approved settlement agreement can release the copyright interests of individual rights owners who have not voluntarily consented to transfer is a troubling one. See also 17 U.S.C. § 106(1), (3) ("[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . reproduce the copyrighted work . . . [and] distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership.") (emphasis added).
A copyright owner's right to exclude others from using his property is fundamental and beyond dispute. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude
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others from using his property."). As counsel for Amazon argued: "[T]he law of the United States is a copyright owner may sit back, do nothing and enjoy his property rights untrammeled by others exploiting his works without permission." (Hr'g Tr. 46-47 (David Nimmer)). Under the ASA, however, if copyright owners sit back and do nothing, they lose their rights. (See id. at 47). Absent class members who fail to opt out will be deemed to have released their rights even as to future infringing conduct. "Copyright owners who are not aware that the [ASA] affects their interest unknowingly leave Google to decide how their books are used." Glorioso, supra n.3, at 992.
Many objectors highlighted this concern in their submissions to the Court. An author from the United Kingdom states, very simply: "I do not want my books to be digitized." (Letter from Tony Peake to Settlement Administrator 1 (Dec. 24, 2009) (ECF No. 821)). A 79-year old nature writer and author of 23 books illustrated with photographs of animals in the wild worries that the loss of control over her works could result in their being used to "vilif[y] the wildlife I spent my life trying to help the public come to understand and protect." (Letter from Hope Ryden to Court 1 (Apr. 17, 2009) (ECF No. 84)). An author from Canada writes: "I am opting out because I believe in the
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integrity of copyright. I believe that only I, myself, should
have the right to determine how my work can be used." (Letter
from Dina E. Cox to Court 1 (Jan. 19, 2010) (ECF No. 783)).
Finally, an author from Texas gives the example of her
grandfather. He self-published a memoir, Dust and Snow, in 1988.
He passed away in the 1990s, and the copyright to the book passed
to his three daughters. The author observes:
From Google's point of view, Dust and Snow is an "orphaned" book. If and when Google scans it, the company is likely to be unsuccessful in trying to locate the publisher, since the book was self-published and my grandfather is now deceased. In essence, the way the settlement is written, such "orphaned" titles are automatically handed to Google free of charge to do with as it will.
From my family's point of view, Dust and Snow is not orphaned at all. It is very clear who owns the copyright. So why is Google being granted the automatic right to take over the copyright of books like my grandfather's?
(Letter from Margaret Jane Ross to Court 2 (Jan. 20, 2010) (ECF
No. 787)).
While the named plaintiffs and Google would argue that
these authors can simply opt out (see Hr'g Tr. 144 (Daralyn J.
Durie)), the comments underscore certain points. First, many
authors of unclaimed works undoubtedly share similar concerns.
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Second, it is incongruous with the purpose of the copyright laws
to place the onus on copyright owners to come forward to protect
their rights when Google copied their works without first seeking
their permission.18 Third, there are likely to be many authors
-- including those whose works will not be scanned by Google
18 In one submission, two literary agents expressed this concern eloquently:
By accepting this settlement, the court will be setting a highly questionable precedent, usurping the role of the legislature by creating a legal loophole for one corporation and reversing the very foundation of copyright protection. We who have devoted our lives to assisting the work of creative individuals are left with a sense of moral indignation. We have pledged, in our contracts with clients, to sell or license their rights to ethically and financially sound purchasers and licensees. And for many years we have toiled over agreements and contracts to accomplish this, aided by the protections of the law. The situation we find ourselves in now is one of dismay and powerlessness, with only the weak ability to "object" or opt out. We beseech you to give authors back their rights. Force Google to negotiate like any other publisher. And let us get back to work.
(Letter from Stuart Bernstein & Susan Bergholz to Court 3-4 (Jan. 26, 2010) (ECF No. 888)).
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until some years in the future -- who will simply not know to
come forward.19
5. Antitrust Concerns
The United States, Amazon, and Microsoft, among others,
raise a number of antitrust concerns presented by the ASA.
The ASA would give Google a de facto monopoly over
unclaimed works. Only Google has engaged in the copying of books
en masse without copyright permission. (See DOJ SOI 21, ECF No.
922; Hr'g Tr. 43 (Thomas Rubin)). As the United States observed
in its original statement of interest:
This de facto exclusivity (at least as to orphan works) appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription. The seller of an incomplete database -- i.e., one that does not include the millions of orphan works -- cannot compete effectively with the seller of a comprehensive product.
(DOJ Statement of Interest 24, Sept. 18, 2009, ECF No. 720). And
as counsel for the Internet Archive noted, the ASA would give
Google "a right, which no one else in the world would have, . . .
19 Google notes that under the ASA -- and unlike in other class actions -- class members retain "the right to change their mind. They can pull their books from the program at any point in time in the future." (Hr'g Tr. 152 (Daralyn J. Durie)).
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to digitize works with impunity, without any risk of statutory liability, for something like 150 years." (Hr'g Tr. 95 (Hadrian Katz)).
The ASA would arguably give Google control over the search market. (See, e.g., Suppl. Mem. of Open Book Alliance in Opp'n to ASA 14-19, ECF No. 840). The ASA would permit third parties to display snippets from books scanned by Google, but only if they "have entered into agreements with Google." (ASA § 3.9). Likewise, the ASA would permit third parties to "index and search" scanned books only if they are non-commercial entities or they otherwise have Google's prior written consent. (ASA §§ 1.123, 1.93(e), 7.2(b)). The ASA would broadly bar "direct, for profit, commercial use of information extracted from Books in the Research Corpus" except with the express permission of the Registry and Google. (ASA § 7.2(d)(viii)). Google's ability to deny competitors the ability to search orphan books would further entrench Google's market power in the online search market. Cf. United States v. Griffith, 334 U.S. 100, 109 (1948) (holding that owners of movie theaters with monopoly power in certain towns violated § 2 of Sherman Act by obtaining exclusive licensing agreements for first-run films, allowing them to
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foreclose competition and establish monopolies in more towns).20
(See Mem. of Internet Archive in Opp'n to ASA 3-4, ECF No. 811
("Internet Archive Mem.") ("Google would have the right to make
complete copies of orphan works and use them for both display and
non-display purposes, with no risk of copyright liability.
Competitors that attempted to do the same thing, however, would
face exposure to statutory damages.")).
20 Nor is it merely Google's competitors that have raised antitrust concerns. For example, amicus curiae Public Knowledge, a non-profit public interest organization "devoted to preserving the free flow of information in the digital age," objects that the ASA would grant Google "a monopoly in the market for orphan books." (Br. of Pub. Knowledge in Opp'n to ASA 2, ECF No. 895). It argues that "public access to orphan books must be open to all comers on a level playing field." (Id.). In addition, the Institute for Information Law and Policy at New York Law School argues:
The heart of the [ASA] is that it would give Google a license to sell complete copies of out-of-print books unless their copyright owners object. It is all but certain that many orphan copyright owners will be unable to object. This sweeping default license will operate only in Google's favor, instantly giving it a dominant market position.
(Letter from Inst. for Info. Law & Policy to Court 5 (Jan. 28, 2010) (ECF No. 856)).
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6. Privacy Concerns The Consumer Watchdog, Privacy Authors and Publishers,
and others raise privacy concerns. The Consumer Watchdog argues that the ASA would give Google "the ability to collect nearly unlimited data about the activities of users of its Book Search and other programs, including users' search queries, the identity of books a particular user reads, how long that reader spends on each book, and even what particular pages were read." (Second Br. of Consumer Watchdog in Opp'n to ASA 11, ECF No. 841). These objectors contend that the ASA fails to provide adequate protections for users of Google Book Search. (Id. at 11-12; Privacy Authors & Publishers' Objection to Proposed Settlement 16, ECF No. 281). They contend that the ASA fails to follow established law that protects reader privacy by limiting the disclosure of reader information. (Privacy Authors & Publishers' Objection to Proposed Settlement 16-20, ECF No. 281 (citing case law and state statutes)).
The privacy concerns are real. Yet, I do not believe that they are a basis in themselves to reject the proposed settlement. The ASA provides that contact information provided by Class members to the Registry will not be disclosed to Google or the public if the Class member so requests. (ASA
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§ 6.6(c)(iii), (d)). It also provides that Google shall maintain in confidence any Rightsholder's personally identifiable information received in connection with the settlement. (ASA § 6.6(f)). Google has "committed" to certain safeguards (Def.'s Br. in Supp. of Approval of ASA 55-56, ECF No. 941), although these are voluntary undertakings only. I would think that certain additional privacy protections could be incorporated, while still accommodating Google's marketing efforts.
7. International Law Concerns The original settlement included any book subject to a
U.S. copyright interest as of the Notice Commencement Date. That definition would have included all books published after 1989 in any country that is a signatory to the Berne Convention because the Berne Convention guarantees that foreign authors be given the same rights and privileges for their works as domestic authors. As the United States signed onto the Berne Convention in 1988, and it became effective in 1989, foreign books are covered by U.S. copyright protection (regardless of formal registration) after the effective date.
The ASA narrowed the definition so that any non-"United States work," see 17 U.S.C. § 101, is covered only if the copyright was affirmatively registered in Washington, D.C. or if
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the Book was published in Canada, the United Kingdom, or Australia, on or before January 5, 2009 (ASA § 1.19). Plaintiffs also added "six non-U.S. based Representative Plaintiffs who fairly and adequately represent the interests of Class members whose Books and Inserts were published in the U.K., Canada or Australia." (Pls.' Suppl. Mem. 25, ECF No. 955).
Foreign rightsholders remain concerned, however, because many foreign books were registered in the United States to ensure coverage under U.S. law, especially those registered before 1989. (See, e.g., Germany Mem. 2-3, ECF No. 852; Suppl. Decl. of French Republic 2, ECF No. 853; Objections of Carl Hanser Verlag et al. 1-2, ECF No. 868 (publishing and author associations in Germany, Switzerland, Austria, Italy, and New Zealand); Letter from Literar Mechana to Court 1 (Jan. 18, 2010) (ECF No. 797)). VG Wort, a German "collecting society" representing authors and publishers of literary works and the fiduciary owner of some 380,000 German authors and 9000 German publishers, notes that many foreign copyright owners remain members of the class because they registered their works with the U.S. Copyright Office. (Letter from VG Wort to Court 3-4 (Jan. 21, 2010) (ECF No. 857)). Indeed, France and Germany, as well as many authors and publishers from countries such as Austria,
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Belgium, India, Israel, Italy, Japan, New Zealand, Spain, Sweden, Switzerland, and the United Kingdom continue to object to the ASA, even with the revisions.
Many foreign objectors express concern as to whether the ASA would violate international law, including the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights. Indian authors and publishers, for example, object that the ASA "continues to provide Google with sweeping rights to exploit works of Indian authors/publishers under copyright protection without their express permission/consent, a violation of international and Indian copyright laws." (Objections of Niyogi Books et al. 1, ECF No. 807). An association of Canadian university teachers asserts that the ASA would "put[] the United States in violation of international intellectual property law and specifically in violation of trade agreements among Canada, the United States, and other parties as those agreements relate to copyright." (Letter from Canadian Ass'n of Univ. Teachers to Court 2 (Jan. 28, 2010) (ECF No. 900)). The Japan P.E.N. Club, an organization consisting of poets, playwrights, essayists, editors, and novelists in Japan, also opposes approval of the ASA, arguing that the settlement would give Google "an almost insurmountable
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market advantage worldwide in the world of digital book publishing, while granting it a monopoly at home in the United States and other English-speaking countries." (Japan P.E.N. Club Amicus Curiae Br. in Opp'n to ASA 6, ECF No. 848-2).
Google responds that "this case is about United States copyright interests. It's about uses of works in the United States." (Hr'g Tr. 157-58 (Daralyn J. Durie)). This argument, however, ignores the impact the ASA would have on foreign rightsholders. In any event, I need not decide whether the ASA would violate international law. In light of all the circumstances, it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.
A number of foreign objectors also complain that it was difficult for foreign authors to determine whether they were covered by the ASA. (See, e.g., Germany Mem. 6-7, ECF No. 852; Letter from Centro Español de Derechos Reprográficos to Court 1 (Jan. 22, 2010) (ECF No. 827); Letter from Irish Copyright Licensing Agency Ltd. to Court 1 (Jan. 26, 2010) (ECF No. 881); Letter from Assucopie to Court 1 (Jan. 22, 2010) (ECF No. 882)).21 Works registered in the Copyright Office before 1978,
21 There was some support for approval of the ASA from Australia, Canada, and the United Kingdom (see, e.g., Letter from Publishers Ass'n to Court 1 (Jan. 27, 2010) (ECF No. 825) (United
-43-

for example, are not included in the online directory, and until
recently the only way such foreign rightsholders could search the
Copyright Office records was to do so in person in Washington,
D.C., or by commissioning a member of the Copyright Office staff
to conduct a search for a fee of $330. (Objections of Carl
Hanser Verlag et al. 12, ECF No. 868).
In addition, certain foreign objectors emphasize that
the problem of orphan books is a global one. As Germany notes:
"Courts and class action settlements are not the proper province
for creating a cutting edge copyright . . . framework to bind
future generations and impact global competition for the future
of digital libraries." (Germany Mem. 11, ECF No. 852).
Likewise, France argues:
Concerning «Unclaimed books», national laws on «orphan» or «unclaimed» books in the digital age are now being elaborated in many countries. Each nation, pursuant to its own governing laws and structure, is the only actor with sufficient legitimacy to make
Kingdom); Letter from Canadian Publishers' Council to Court 1 (Jan. 27, 2010) (ECF No. 826); Letter from Australian Publishers Ass'n to Court 1 (Jan. 28, 2010) (ECF No. 830); Letter from Soc'y of Authors to Court 1-2 (Jan. 22, 2010) (ECF No. 876) (United Kingdom)), although not everyone from those countries agreed (see, e.g., Letter from Diana Kimpton to Court 1 (Jan. 10, 2010) (ECF No. 817) (United Kingdom); Letter from Jenny Darling & Assocs. to Court 1 (Jan. 22, 2010) (ECF No. 886) (Australia); Letter from Canadian Ass'n of Univ. Teachers to Court 1 (Jan. 28, 2010) (ECF No. 900)).
-44-

decisions that affect Copyright. France considers that, in the meantime, any digital exploitation of books must abide by the international principles of copyright and, in particular, the prior consent of the rights holders.
(Suppl. Decl. of French Republic 2, ECF No. 853). The fact that
other nations object to the ASA, contending that it would violate
international principles and treaties, is yet another reason why
the matter is best left to Congress.22
CONCLUSION
In the end, I conclude that the ASA is not fair,
adequate, and reasonable. As the United States and other
22 Germany further argues as follows:
The [ASA] still rewards Google -- a serial scanning infringer -- with a de facto exclusive license regarding copyrights held by authors for books published in the United States, Canada, Australia, and United Kingdom, as well as over German and other international authors whose books have been registered in the United States. Competing digital libraries in Germany ("Deutsche Digitale Bibliothek") and throughout the world do not enjoy rights to such authors or "Orphan Works" because Germany requires licensing of rights prior to the usage of Orphan Works. Such a sweeping de facto compulsory license system would require legislative action (equivalent to Congressional action) in Germany.
(Germany Mem. 8, ECF No. 852).
-45-

objectors have noted, many of the concerns raised in the

objections would be ameliorated if the ASA were converted from an

I1opt-out1s!ettlement to an llopt-in"settlement. (See, e.q., DOJ

SO1 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811). I

urge the parties to consider revising the ASA accordingly.

The motion for final approval of the ASA is denied,

without prejudice to renewal in the event the parties negotiate a

revised settlement agreement. The motion for an award of

attorneys1 fees and costs is denied, without prejudice.

The Court will hold a status conference on April 25,

2011, at 4:30 p.m., in Courtroom 11A of the Daniel Patrick

Moynihan Courthouse.

SO ORDERED.

Dated:

March 22, 2011 New York, New York

c -1DUnEiNtNeYdCHSItNates Circuit Judge

Sitting By Designation

APPEARANCES
For Author Plaintiffs:
BONI & ZACK LLC By: Michael J. Boni, Esq, Joanne Zack, Esq.
15 St. Asaphs Road Bala Cynwyd, PA 19004
For Publisher Plaintiffs:
DEBEVOISE & PLIMPTON LLP By: Bruce P. Keller, Esq. Jeffrey P. Cunard Richard S. Lee, Esq.
919 Third Avenue New York, NY 10022
For Defendant Google Inc.
DURIE TANGRI LLP By: Daralyn J. Durie, Esq. Joseph C. Gratz, Esq.
217 Leidesdorff Street San Francisco, CA 94111
For United States of America:
PREET BHARARA, Esq. United States Attorney
for the Southern District of New York By: John D. Clopper, Esq. Owen Knedler, Esq. Assistant United States Attorneys
86 Chambers Street, 5th Floor New York, NY 10007
- and -
-47-

WILLIAM F. CAVANAUGH, Esq. Deputy Assistant Attorney General Antitrust Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
-48-

 
 Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 1 of 16

Michael J. Boni (pro hac vice)
Joane Zack
BONI & ZACK LLC
15 St. Asaphs Road
Bala Cynwyd, P A 19004
(6 i 0) 822-0200 (phone) (610) 822-0206 (fax)
MBoniêbonizack.com JZackêbonizack.com

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

_ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x
The Authors Guild, Inc., Associational Plaintiff, Herbert Mitgang, Betty Miles, Daniel Hoffian, Paul Dickson, Joseph Goulden, and Jim Bouton, individually and on behalf of all others similarly situated,
Plaintiffs,
v.

FOURTH AMENDED CLASS ACTION COMPLAINT
Case No. 05 CV 8136-DC
JURY TRIAL DEMANDED

Google Inc., Defendant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x Plaintiffs, by their attorneys, allege as follows: NATURE OF THE ACTION
1. Plaintiffs are published authors and The Authors Guild, Inc. ("Authors
Guild"). Plaintiffs other than the Authors Guild have United States copyrght interests in books
contained in public librares, university librares and elsewhere in the United States.

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 2 of 16

2. The Authors Guild is the nation's largest organization of

book authors,

which has as its primar purose to advocate for and support the copyrght and contractual
interests of published writers.

3. Defendant Google Inc. ("Google") owns and operates a major Internet

search engine that, among other things, provides access to commercial and other sites on the

Internet. Google has contracted with several public and university librares to create digital

"archives" ofthe librares' collections of

books, including those of

the University of

Michigan,

the University of

Wisconsin, and the University ofCalifomia. As par of

the consideration for

creating digital copies of

these collections, the agreements entitle Google to reproduce and retain

for its own commercial use a digital copy of

the libraries' archives.

4. By reproducing for and distrbuting to these and other libraries a digital

copy of in-copyrght Books (defined in paragraph 22 below), by reproducing for itself a digital

copy of these Books, and by publicly displaying these Books, Google is engaging in massive

copyrght infrngement. It has infrnged, and continues to infinge, the electronic and other rights

of the copyrght holders of the Books.

5. Google has reproduced and continues to reproduce the Books for use on its
website in order to, among other things, attract visitors to its web site and generate advertising
revenue thereby.

6. Google knew or should have known that the Copyrght Act, 17 U.S.C. §

101 et seq. ("the Act"), required it to obtain authorization from the holders of

the copyrghts in

these Books before creating, distributing and reproducing digital copies of

the Books for the

2

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 3 of 16

librares providing Books to Google, for its own commercial use and for the use of others.

Despite this knowledge, Google has unlawfully reproduced, distrbuted and publicly displayed

the Books, and intends to continue to do so, without the copyrght holders' authorization.

Google has derved, and intends to continue to derive, revenue from this program by, among

other things, attracting more viewers and advertisers to its website.

7. By this action, plaintiff authors, on behalf of themselves and all others

similarly situated, seek damages, injunctive and declaratory relief

with respect to Google's

present infrngement, and declaratory and injunctive relief

with respect to Google's past, present

and future planed unauthorized commercial and other use of the Books.
JURISDICTION AND VENUE

8. This copyrght infrngement action arises under 17 U.S.C. § 101 et seq.

This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question), and

28 U.S.C. § 1338 (acts of

Congress related to copyrght).

9. Venue is proper in this distrct pursuant to 28 U.S.C. §§ 1391(b) and

1400(a) because several of

the named plaintiffs reside in this distrct and because defendant

maintains offces and conducts business in this district.

PARTIES

REPRESENTATIVE PLAINTIFFS

10. The representative plaintiffs are published, professional authors who

created Books.

3

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 4 of 16

11. Plaintiff

Herbert Mitgang ("Mitgang") resides in New York, New York.

He is a published author of numerous nonfiction Books, and a holder of the United States

copyrght in the Book The Man Who Rode the Tiger: The Life of Judge Samuel Seabury and the

Story of the Greatest Investigation of City Corruption in this Century (registration number

A216794), published by Lippincott, which has been copied, distributed and displayed by Google.

12. Plaintiff

Betty Miles ("Miles") resides in Shelburne, Vermont. She is the

author of several Books of children's and young adult fiction and is a holder of

the United States

copyrght in the Book Just Think (registration number A330604), published by Alfred A. Knopf,

which is contained in the library of the University of Michigan.

13. Plaintiff

Daniel Hoffian ("Hoffman") resides in Swarthmore,

Pennsylvania. He is the author and editor of many volumes of poetry, translation, and literar

criticism, and of a memoir. He is a holder of

the Unites States copyrght in the Book Barbarous

Knowledge: Myth in the Poetry of Yeats, Graves, and Muir (registration number A896931 and

registration renewal number RE-696-986), published by Oxford University Press, which has been

copied, distributed and displayed by Google.

14. Plaintiff

Paul Dickson ("Dickson") resides in Garrett Park, MD. He is a

full-time writer and the author of

numerous Books, and is a holder ofthe United States copyrght

in Out of This World: American Space Photography (registration number A923312), published

by Delacorte Press, and The NEW Offcial Rules: Maxims for Muddling through to the Twenty-

First Century (registration number TX0002621899), published by Addison-Wesley Publishing

Company, which have been copied, distributed and displayed by Google.

4

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 5 of 16

15. Plaintiff Joseph Goulden ("Goulden") resides in Washington, D.C. He is

the author of several Books, and is a holder of the United States copyrght in The Superlawyers:

The Small and Powerful World of

the Great Washington Law Firms (registration number

A346254), published by Weybright and Talley, which has been copied, distributed and displayed

by Google.

16. Plaintiff Jim Bouton ("Bouton") resides in Alford, Massachusetts. He is

the author and copyrght holder of

several Books, and is a holder of

the United States copyrght

in Ball Four (registration number AI73097), published by World Publishing Company, which

has been copied, distrbuted and displayed by Google.

17. Plaintiffs are the exclusive owners of

the copyrghts for their Books listed

above. None of

the plaintiffs has authorized Google to reproduce his or her Books or to display,

sell and/or distribute such Books on its website or anywhere else.

ASSOCIATIONAL PLAINTIFF

18. Plaintiff

The Authors Guild, Inc. ("the Guild") is a not-for-profit

corporation organized under New York law and having its place of

business at 31 East 32nd

Street, New York, New York. The Guild and its predecessor organization, the Authors League

of America ("the League"), have been leading advocates for authors' copyrght and contractual

interests since the League's founding in 1912. The Guild, whose membership includes more

than 8,500 published authors, is the nation's largest organization of authors. The activities of

the

Guild include reviewing members' publishing and agency contracts; intervening in disputes

involving authors' rights; providing advice to members regarding developments in the law and in

5

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 6 of 16

the publishing industr that affect their rights; and supporting legislation in matters affecting

copyrght, freedom of expression, taxation and other issues affecting professional writers. 19. The Guild has associational standing to pursue claims for injunctive and
declaratory relief on behalf of its members. The member authors would have standing to sue in

their own right. The protection of authors' copyrghts is germane, indeed central, to the purpose

of the Guild. Individual partcipation of the authors is not required to determine whether

Google's copying and planed display of

the authors' copyrghted works for commercial use is in

violation of

the Act and to provide injunctive and declaratory relief

to the Guild and the authors.

DEFENDANT

20. Google is a Delaware corporation with its principal place of

business

located in Mountain View, California. Google owns and operates the largest Internet search

engine in the United States, which contains links to more than one trillon commercial and

noncommercial Internet pages. Its search engine is available free of charge to Internet users, and is supported by commercial and other entities' purchases of advertising space on Google's and

others' websites.

21. Late in 2004, Google anounced the launch of a project it calls the Google

Library Project, which was par of a service it called Google Print and now calls Google Book

Search. Google Book Search is designed to allow users to search the text of

books online. The

digital archiving of

the Books that are the subject of

this lawsuit was undertaken by Google as

par of Google Book Search.

6

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 7 of 16

CLASS ALLEGATIONS

22. The Class is defined as all persons residing in the United States who hold a United States copyrght interest in one or more Books and are either (a) natural persons who are

authors of such Books or (b) natual persons, family trusts or sole proprietorships who are heirs,

successors in interest or assigns of such authors. "Books" means each full-length book published

in the United States in the English language and registered with the United States Copyrght Offce within three months after its first publication. Excluded from the Class are the directors,

offcers and employees of

Google; personnel of

the departents, agencies and instrmentalities

of the United States Governent; and Court personneL.

23. This action has been brought and may properly

Action pursuant to Rules 23(b)(2) and (b)(3) of

the Federal Rules of

be maintained as a Class Civil Procedure.

24. Numerosity of

the Class - Fed. R. Civ. Proc. 23(a)(l): The persons in the

Class are so numerous that their joinder is impractical, and the disposition of their claims in a

class action rather than in individual actions wil benefit the paries and the Cour. The exact

number of

members of

the Class is not known to plaintiffs, but plaintiffs reasonably estimate that

there are at least thousands of Class members.

25. Existence and Predominance of

Common Question of

Law or Fact - Fed.

R. Civ. Proc. 23(a)(2) & 23(b)(3): There is a well-defined community of interest in the questions

oflaw or fact involved affecting the Class. Questions oflaw or fact common to the Class

include, but are not limited to, the following:

7

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 8 of 16

a. Whether Google has digitized (i.e, reproduced) Books and
distrbuted copies of such Books to librares and other sources; b. Whether Google plans to continue to digitize Books and distribute
copies of such Books to librares and other sources;

infingement;

c. Whether such reproduction and distribution constitutes copyrght

d. Whether Google has reproduced, and plans to continue to
reproduce, Books for its own commercial use;

e. Whether the reproduction by Google of Books constitutes

copyrght infrngement;

f. Whether Google's public display of content from Books on its
commercial website infinges the copyrghts ofthe Class;

g. Whether Google's reproduction, distribution and display of

milions of

Books as alleged herein constitute a "fair use" of

the Books;

h. Whether Google acted wilfully with respect to the acts complained

of herein;

i. Whether members of the Class have sustained damages and, if so,

the proper measure of such damages;

j. Whether injunctive relief

is appropriate.

These questions of law or fact predominate over questions that affect only

individual class members.

8

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 9 of 16

26. Typicality - Fed. R. Civ. Proc. 23(a)(3): The claims of

the representative

plaintiffs are tyical of those of the Class. All plaintiffs own copyrghts in works that have been

or face the imminent threat of authorization. The claims of

being copied, distrbuted and displayed by Google without

the representative plaintiffs and all members of

the Class depend on

a showing of

the acts of

Go ogle complained of

herein.

27. Adequacy of

Representation - Fed. R. Civ. Proc. 23(a)(4): Plaintiffs are

adequate representatives of

the Class and wil fairly and adequately protect the interests ofthe

Class. Plaintiffs' interests do not in any way conflct with the interests of

the members of

the

Class that they seek to represent. Plaintiffs are committed to the vigorous prosecution of this

action and have retained competent counsel experienced in complex class action litigation and in

copyrght actions.

28. Injunctive Relief - Fed. R. Civ. Proc. 23(b)(2): Google has acted or
refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief with respect to the Class as a whole.
29. Superiority- Fed. R. Civ. Proc. 23(b)(3): A class action is the best

available method for the fair and efficient adjudication of this controversy. Since the damages

suffered by individual class members, while not inconsequential, may be relatively small, the

expense and burden of individual

litigation make it impractical for members of the Class to seek

redress individually for the wrongful conduct alleged herein. Should separate actions be required

to be brought by each individual member of

the Class, the resulting multiplicity oflawsuits

would cause undue hardship and expense on the Cour and the litigants. A class action is

9

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 10 of 16

therefore the best method to assure that the wrongful conduct alleged herein is remedied, and that

there is a fair, efficient, and full adjudication of this controversy. Plaintiffs anticipate no undue

diffculty in the management of

this litigation as a class action.

GENERAL ALLEGATIONS

30. Google is in the business of

providing Internet search services to the

public. It derives the vast majority of its revenues directly from the sale of advertising, and

would likely be unable to offer its search engine and other services to the public free of charge

without a continued stream of advertising revenues. 31. On December 14, 2004, Google announced in a press release that it had

entered into agreements with four university libraries and one public library to "digitally scan

books from their collections so that users worldwide can search them in Google." According to

Google's release, this was to be an "expansion of

the Google Print program, which assists

publishers in making books and other offine information searchable online. Google is now

working with libraries to digitally scan books from their collections, and over time wil integrate

this content into the Google index, to make it searchable for users worldwide." Google's press

release also claimed that it would make "brief excerpts" of copyrghted material available. 32. Google is providing the scanng technology that allows the librar books

to be copied.

33. Google uses the Books obtained from varous librares and other sources

in order to attract visitors and, thereby, advertisers, to its website.

10

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 11 of 16

34. Google has already copied Books from the collections of

various libraries,

including Books in which plaintiffs Mitgang, Hoffian, Dickson, Goulden and Bouton own

United States copyrght interests. In so doing, Google has reproduced in their entirety at least

two digital copies of such Books - one for the library that permitted Google to digitize such

Books and the other for Google's own commercial use - without the copyrght holders'

permission and in violation of

their rights under copyrght. Google has also announced plans to,

and has for several years, publicly displayed the Books on its commercial website.

35. Google continues to reproduce and distribute digitized copies of

the

Class's Books without their authorization. Google continues to display the Books on its website

for the commercial puroses detailed above.

36. Google's acts have caused, and unless restrained, wil continue to cause

damages and irreparable injury to representative plaintiffs and the Class through:

a. continued copyrght infingement of

the Books and/or the

effectuation of new and fuher infrngements;

b. depreciation in the value and abilty to license and sell their Books;

c. lost profits and/or opportnities; and

d. damage to their goodwil and reputation.

37. Google acted wilfully or knew or should have known that its actions

constitute infingement.

38. Plaintiffs and the other members of

the Class have suffered damages

and/or are in imminent danger of suffering fuher damages from Google's unawful practices.

11

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 12 of 16

COUNT ONE - Copyright Infringement (By Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton)

39. Plaintiffs Hoffan, Dickson, Goulden and Bouton reallege and
incorporate by reference as if fully set forth herein the allegations contained in all preceding

paragraphs.

40. Plaintiffs Mitgang, Hoffman, Dickson, Goulden and Bouton and other

members of

the Class own a valid copyrght in and to at least one Book that has been copied,

distributed and displayed by Google without permission. They, not Google, have the exclusive

rights to, among other things, reproduce their Books, distribute copies of

their Books to the

public, publicly display their Books, and authorize such reproduction, distribution and display of

their Books.

41. Google has copied, distrbuted and/or displayed for its own commercial

use one or more copies of some of

the Books from university librares or other sources, and

Google has stated that it intends to copy most, if not all, of the Books in the collection of the

University of

Michigan library and other libraries.
42. Google's conduct is in violation of

the copyrghts held by named plaintiffs

Mitgang, Hoffman, Dickson, Goulden and Bouton and other members of

the Class.

43. Google's infrngement of

the copyrghts of

the Books was wilfuL.

44. As a result of Google' s acts of copyrght infrngement and the foregoing

allegations, plaintiffs Mitgang, Hoffan, Dickson, Goulden and Bouton and other members of

the Class have suffered damages.

12

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 13 of 16

COUNT TWO - Injunctive Relief (By All Plaintiffs)
45. Plaintiffs reallege and incorporate by reference as if
the allegations contained in all preceding paragraphs.

fully set forth herein

46. Google has reproduced, distrbuted and displayed, and continues to

reproduce, distrbute and display, Books contained in the University of Michigan, the University

of Wisconsin, the University of

California and other libraries.

47. Google has also placed such unlawfully copied Books on its website in

order to, among other things, generate consumer traffc and revenues.

48. Google's commercial use of

the Books constitutes additional wholesale

copyrght infrngement.

49. Unless enjoined from doing so, Google's commercial use of

the Books,

and distribution ofthe Books to the librares, wil cause plaintiffs and the Class irreparable har

by depriving them of

both the right to control the reproduction, display and/or distrbution of

their copyrghted Books and to receive revenue therefrom.

50. Plaintiffs and the Class are likely to succeed on the merits of their

copyrght infrngement claim because Google's existing and planned uses of

the Books do not

fall within any of

the statutory exceptions to copyrght infingement and are in violation of

copyrght.

5 i. The balance of

hardships tips in favor of plaintiffs and the Class, because

Google's massive earngs wil not be severely damaged by its inabilty to create a new stream of

revenues and because other comprehensive electronic databases exist for public use.
13

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 14 of 16

52. Plaintiffs are therefore entitled to an injunction barng Google from

continued infrngement of the copyrghts of plaintiffs and the Class, and other equitable relief as

more fully set fort in the Prayer for Relief.

COUNT THREE - Declaratory Relief (By All Plaintiffs)
53. Plaintiffs reallege and incorporate by reference as if

fully set forth herein

the allegations contained in all preceding paragraphs.

54. An actual controversy exists between the Authors Guild, the representative

plaintiffs and the Class, on the one hand, and Google, on the other hand, by reason of Google' s

present and continuing infrngement of the representative plaintiffs' and the Class's copyrghts as

alleged herein.
55. Plaintiffs are entitled to a

judgment declaring that Google's actions are

unlawful and, specifically, that Google infrnged and continues to infrnge the representative

plaintiffs' and the Class's United States copyrghts in violation of
PRAYER FOR RELIEF

the Copyrght Act.

WHEREFORE, plaintiffs pray for relief and that judgment be entered

against defendant as follows:

A. For certification of

the Class;

B. For an award of damages under the Copyrght Act;

infingement of equitable relief

C. For an injunction (a) barrng Google from continued

the copyrghts of

the representative plaintiffs and the Class, and/or (b) other

to redress any continuing violations of

the Act; 14

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 15 of 16

D. For (a) permanent injunctive and declaratory relief

barng

Google from continued infrngement of

the copyrghts of

the representative plaintiffs and the

Class, and/or (b) other equitable relief

to redress any continuing violations of

the Act;

E. For costs and attorneys' fees; and

proper.

F. For such other and furter relief as the Court finds just and

15

Case 1:05-cv-08136-DC Document 985 Filed 10/14/11 Page 16 of 16

DEMAND FOR JURY TRIAL
The representative plaintiffs, as provided by Rule 38 of
Procedure, request trial by jury in the above-captioned matter.

the Federal Rules of Civil

Dated: October 14, 2011

~/~
Sanford P. Dumain MILBERG LLP One Pennsylvania Plaza New York, NY 10119
Tel: (212) 594-5300
Fax: (212) 868-1229
sdumain(Ðmilberg.com
Michael J. Boni (pro hac vice)
Joane Zack
BONI & ZACK LLC
15 St. Asaphs Rd.
Bala Cynwyd, P A 19004 (610) 822-0200 (phone) (610) 822-0206 (fax) MBoni(Ðbonizack.com JZack(Ðbonizack. com
Robert J. LaRocca KOHN SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, P A 19107 Telephone: (215) 238-1700 Facsimile: (215) 238-1968 rlarocca(Ðkohnswift. com

Counsel for Plaintif

16

 
 Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 1 of 32

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -x

THE AUTHORS GUILD et al.,

:

Plaintiffs, :

- against -

:

OPINION

GOOGLE, INC.,

:

Defendant.

:

05 Civ. 8136 (DC) 10 Civ. 2977 (DC)

- - - - - - - - - - - - - - - - - -x

AMERICAN SOCIETY OF MEDIA

:

PHOTOGRAPHERS et al.,

:

Plaintiffs,

:

- against -

:

GOOGLE, INC.,

:

Defendant.

:

- - - - - - - - - - - - - - - - - -x

CHIN, Circuit Judge:

Before the Court are two motions. First, defendant

Google, Inc. ("Google") moves to dismiss the claims of the

associational plaintiffs in both of these cases.1 Second, the

1

The Authors Guild is the only associational plaintiff

in the Authors Guild action. The associational plaintiffs in the

American Society of Media Photographers ("ASMP") action include:

ASMP, the Graphic Artists Guild, the Picture Archive Council of

America, the North American Nature Photography Association, and

Professional Photographers of America (collectively, the "ASMP

Associational Plaintiffs").

Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 2 of 32
three representative plaintiffs in the Authors Guild action -Betty Miles, Joseph Goulden, and Jim Bouton (the "AG Representative Plaintiffs") -- move for class certification. For the reasons stated below, Google's motions to dismiss the claims of the associational plaintiffs are denied, and the motion for class certification in the Authors Guild case is granted.
BACKGROUND A. The Library Project
The following facts are not in dispute. In 2004, Google announced that it had entered into agreements with several major research libraries to digitally copy books and other writings in their collections (the "Library Project"). Since then, Google has scanned more than 12 million books. (See Zack Decl. Ex. 7 at 3). It has delivered digital copies to the participating libraries, created an electronic database of books, and made text available for online searching. See Authors Guild v. Google, 770 F. Supp. 2d 666, 670 (S.D.N.Y. 2011) (citing Emily Anne Proskine, Google's Technicolor Dreamcoat: A Copyright Analysis of the Google Book Search Library Project, 21 Berkeley Tech. L.J. 213, 220-21 (2006) (describing project)). Google users can search its "digital library" and view excerpts -"snippets" -- from books containing search results. Id. (See
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Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 3 of 32
also Zack Decl. Ex. 7 at 3). For example, when a user enters a search term on the Google Books website, Google displays a list of books containing that term. In many cases, when the user clicks on the link to a particular book, Google displays up to three "snippets" of text from that book -- each about an eighth of a page -- each of which contains the search term. (See Gratz Decl. Ex. 1; Zack Decl. Exs. 7, 10-12).
Millions of the books scanned by Google were still under copyright, and Google did not obtain copyright permission to scan the books. Authors Guild, 770 F. Supp. 2d at 670 & n.3. B. The Authors Guild Action
In 2005, the Authors Guild and the AG Representative Plaintiffs (together, the "Authors Guild Plaintiffs") brought a class action, charging Google with copyright infringement. Specifically, the Authors Guild Plaintiffs allege that by reproducing in-copyright books, distributing them to libraries, and publicly displaying "snippets" of those works for search, Google "is engaging in massive copyright infringement." (AG 4th AC ¶ 4). The AG Representative Plaintiffs seek damages and injunctive and declaratory relief. The Authors Guild seeks only injunctive and declaratory relief.
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Also in 2005, several publishers initiated their own action. They are not parties to the instant motions.
The Authors Guild Plaintiffs, the publishers, and Google engaged in document discovery and, in the fall of 2006, began settlement negotiations. On October 28, 2008, after extended discussions, the parties filed a proposed settlement agreement. The proposed settlement was preliminarily approved by Judge John E. Sprizzo by order entered November 17, 2008. (ECF No. 64). Notice of the proposed settlement triggered hundreds of objections. As a consequence, the parties began discussing possible modifications to the proposed settlement to address at least some of the concerns raised by objectors and others. On November 13, 2009, the parties executed an Amended Settlement Agreement ("ASA") and filed a motion for final approval of the ASA pursuant to Federal Rule of Civil Procedure 23(e). (ECF No. 768). I entered an order preliminarily approving the ASA on November 19, 2009. (ECF No. 772).
Notice of the ASA was disseminated. As was the case with the original proposed settlement, hundreds of class members objected to the ASA. A few wrote in its favor. The Department of Justice ("DOJ") filed a statement of interest raising certain concerns. (ECF No. 922). Amici curiae weighed in, both for and
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against the proposed settlement. I conducted a fairness hearing on February 18, 2010. The Authors Guild actively participated in all these proceedings.
On March 22, 2011, I declined to grant final approval of the ASA because, inter alia, "the ASA contemplates an arrangement that exceeds what the Court may permit under Rule 23." Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 667 (S.D.N.Y. 2011). Specifically, I found that the ASA was "an attempt to use the class action mechanism to implement forwardlooking business arrangements that go far beyond the dispute before the Court." Id. (citation and internal quotation marks omitted). C. The ASMP Action
In 2010, several individual photographers and illustrators (the "ASMP Representative Plaintiffs") and the ASMP Associational Plaintiffs (together, the "ASMP Plaintiffs") brought another class action charging Google with copyright infringement. The ASMP Plaintiffs represent individuals who hold copyright interests in certain photographs, illustrations, and other visual works that appear within the books that Google has copied. They allege that Google's activity in connection with the Library Project has infringed on their copyrights as well.
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(ASMP FAC ¶¶ 4-5). The ASMP Representative Plaintiffs seek damages and injunctive and declaratory relief. The ASMP Associational Plaintiffs seek only injunctive and declaratory relief. D. Recent Procedural History
The Authors Guild Plaintiffs filed their Fourth Amended Class Action Complaint on October 14, 2011. (ECF No. 985). The ASMP Plaintiffs filed their First Amended Class Action Complaint on November 18, 2011. (ECF No. 29). Google's principal defense in each of these actions is "fair use" under § 107 of the Copyright Act, 17 U.S.C. § 107.
On December 12, 2011, the AG Representative Plaintiffs moved for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. On December 22, 2011, Google moved to dismiss all associational plaintiffs for lack of standing under Rule 12(b)(1). The Court held oral argument on both motions on May 3, 2012, and reserved decision.
DISCUSSION First, I will address Google's motions to dismiss the claims of the associational plaintiffs for lack of standing. Second, I will address the motion for class certification in the Authors Guild case.
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A. Motions to Dismiss 1. Applicable Law Ordinarily, for a plaintiff to have standing, the
plaintiff must "'be himself among the injured.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). One exception to this general rule is "associational standing." Warth v. Seldin, 422 U.S. 490, 511 (1975) ("Even in the absence of injury to itself, an association may have standing solely as the representative of its members."); Nat'l Motor Freight Traffic Ass'n v. United States, 372 U.S. 246 (1963) (per curiam). "While the 'possibility of such representational standing . . . does not eliminate or attenuate the constitutional requirement of a case or controversy,' [the Second Circuit has] found that, under certain circumstances, injury to an organization's members will satisfy Article III and allow that organization to litigate in federal court on their behalf." Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281 (1986) (quoting Warth, 422 U.S. at 511) (internal citations omitted).
"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have
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standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The parties agree that the first two prongs of the Hunt test are satisfied here. It is the third prong that is at issue and requires further discussion.
The third Hunt prong is not a constitutional standing requirement; it is prudential. See United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555 (2d Cir. 1996). "[O]nce an association has satisfied Hunt's first and second prongs assuring adversarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to see a constitutional necessity for anything more." Id. at 556, 558 (holding that Congress did not exceed its authority by authorizing union to sue for violation of statute on behalf of its members). Indeed, Hunt's third prong focuses on "matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution." Id. at 555-57; Alliance for Open Soc'y Int'l,
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Inc. v. U.S. Agency for Int'l Dev., 651 F.3d 218, 229 (2d Cir. 2011).2
Nonetheless, to determine whether the third Hunt prong is satisfied, courts look to the degree of "individualized proof" required to assert the claim and grant the requested relief. Open Soc'y, 651 F.3d at 229-30. Claims for which damages are sought, for example, often require proof of harm on an individualized basis, thereby defeating any "administrative convenience" achieved by allowing an association to sue on behalf of individual members. See Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (denying standing because claims were for bodily injury and property damage and observing, "[w]e know of no Supreme Court or federal court of appeals ruling that an association has standing to pursue damages claims on behalf of its members").
By contrast, associational standing may be appropriate in cases involving pure questions of law or claims for injunctive

2

In United Food, the Supreme Court identified three

potential purposes of the third Hunt prong. The Court explained

that the third prong (1) "may well promote adversarial

intensity"; (2) "may guard against the hazard of litigating a

case to the damages stage only to find the plaintiff lacking

detailed records or the evidence necessary to show the harm with

sufficient specificity"; and (3) "may hedge against any risk that

the damages recovered by the association will fail to find their

way into the pockets of the members on whose behalf injury is

claimed." United Food, 517 U.S. at 556-57.

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relief in which little or no individualized proof is required. See, e.g., Brock, 477 U.S. at 287-88 (union could litigate case without participation of any member where only question was whether Secretary properly interpreted statutory provision; once legal issue resolved, amount of damages per union member could be left to state authorities); Warth, 422 U.S. at 515 (denying standing because plaintiffs sought damages, but noting that if an association seeks an injunction, "it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured"); Bldg. & Constr. Trades Council v. Downtown Dev., Inc., 448 F.3d 138, 150-51 (2d Cir. 2006) (standing where plaintiff only sought civil penalties and injunctive relief). "[S]o long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." Warth, 422 U.S. at 511 (emphasis added).
Indeed, "[t]he fact that a limited amount of individual proof may be necessary does not, in itself, preclude associational standing." Nat'l Ass'n of Coll. Bookstores, Inc. v. Cambridge Univ. Press, 990 F. Supp. 245, 249-51 (S.D.N.Y.
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1997) (associational standing where some individual participation necessary to prove that transactions were "contemporaneous" for purpose of Robinson-Patman claim); see also Hosp. Council v. City of Pittsburgh, 949 F.2d 83, 89-90 (3d Cir. 1991) (associational standing where evidence from individual member hospitals would be necessary to support discrimination claim); N.Y. State Nat'l Org. of Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989) (associational standing where affidavits and stipulations were sufficient to provide a basis for relief).
2. Application Here, there is no dispute that the associational
plaintiffs in these two actions have satisfied the first two prongs of the Hunt test. I conclude that the third prong is satisfied here as well, and the associational plaintiffs therefore have standing. Specifically, the associations' claims of copyright infringement and requests for injunctive relief will not require the participation of each individual association member. To the extent there is any ambiguity on this issue, I resolve it in favor of the associational plaintiffs, as application of the third Hunt prong is prudential and the equities in this case weigh in favor of finding that the associations have standing.
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a. Individual Participation The associational plaintiffs assert claims of copyright infringement on behalf of their individual members. They allege that Google engaged, and continues to engage, in the wholesale copying of books (including any images contained therein) without the consent of the copyright holders, many of whom are association members. (See AG 4th AC ¶¶ 5-6, 18-19; ASMP FAC ¶¶ 4-5, 21). Unlike the representative plaintiffs, the associational plaintiffs request only injunctive and declaratory relief. They seek "an injunction barring Google from continued infringement of the copyrights of plaintiffs and the Class." (AG 4th AC ¶ 52; ASMP FAC ¶ 82). In addition, they seek "a judgment declaring that Google's actions are unlawful." (AG 4th AC ¶ 55; ASMP FAC ¶ 85). Neither the claims asserted nor the relief requested by the associational plaintiffs require a degree of individual participation that precludes associational standing under Hunt. Limited individual participation will be necessary to establish the associations' copyright infringement claims. To establish infringement, a plaintiff must show: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Arista Records, LLC v. Doe 3, 604 F.3d
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110, 117 (2d Cir. 2010); see Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir. 1997). The second element would not require individual participation because it is undisputed. Google does not deny that it copied millions of books -- original works -without the permission of the copyright holders. Furthermore, it has displayed snippets of text from those books as well as images contained in the books, without the copyright holders' permission.
For those association members who still own all or part of the copyright to their work, the first element will not require individual participation. Copyright ownership information is available publicly on the United States Copyright Office's Registry. See www.copyright.gov/records (for books registered since Jan. 1, 1978); see also books.google.com/googleb ooks/copyrightsearch.html (for books registered before 1978). Furthermore, copyright registrations constitute prima facie evidence of copyright ownership, 17 U.S.C. § 410(c), and the Court may take judicial notice of them, Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005).3

3

To the extent Google wishes to rebut such evidence (see

Perle Decl. ¶ 25), it may seek to do so on a case-by-case basis.

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For those association members who have assigned their copyrights to a third party, but still retain a beneficial interest in their work -- e.g., by receiving royalties -- some individual participation may be required.4 If such beneficial ownership cannot be established through public records or Google's records, the association member arguably would have to come forward with a publishing contract or other document proving that he retains a beneficial interest in his work.5 This degree of individual participation, however, does not defeat associational standing. See Coll. Bookstores, 990 F. Supp. at 249-50; Hosp. Council, 949 F.2d at 89-90. Requiring some individual members to present documentary evidence of their beneficial copyright interest would not make this case administratively inconvenient or unmanageable. The alternative -- forcing association members to pursue their claims individually -- would be burdensome and inefficient.

4

Individuals who receive royalties retain standing to

sue for copyright infringement. See Cortner v. Israel, 732 F.2d

267, 271 (2d Cir. 1984) (citing 17 U.S.C. § 501(b)); Harris v.

Simon & Schuster, Inc., 646 F. Supp. 2d 622, 632 (S.D.N.Y. 2009).

5

If an association member cannot show that he retains a

beneficial interest in the copyright -- for example, if he has

entered into an "all rights" contract, see May 3, 2012, Oral Arg.

Tr. at 16, or created the work as a "work for hire," 17 U.S.C. §

201(b) -- a substantial question will be raised as to whether he

should be included in the group on behalf of which the

association is suing.

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Google claims that its fair-use defense would require the participation of individual association members as well. Specifically, Google contends that two fair-use factors, "the nature of the copyrighted work" and "the effect of the use upon the potential market for or value of the copyrighted work," 17 U.S.C. § 107, require an individualized inquiry. (Def.'s Br. at 12). It points out, for example, that creative works and noncreative works are often treated differently in the fair-use analysis. (Id. at 12-13). Furthermore, it argues that snippet display might, for example, affect the market for in-print books more than it affects the market for out-of-print books. (Id. at 13).
While different classes of works may require different treatment for the purposes of "fair use," the fair-use analysis does not require individual participation of association members. The differences that Google highlights may be accommodated by grouping association members and their respective works into subgroups. For example, in the Authors Guild action, the Court could create subgroups for fiction, non-fiction, poetry, and cookbooks. In the ASMP action, it could separate photographs from illustrations. The Court could effectively assess the merits of the fair-use defense with respect to each of these
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categories without conducting an evaluation of each individual work. In light of the commonalities among large groups of works, individualized analysis would be unnecessarily burdensome and duplicative. See Nat'l Ass'n of Letter Carriers, AFL-CIO v. U.S. Postal Serv., 604 F. Supp. 2d 665, 674-76 (S.D.N.Y. 2009) (standing not defeated by affirmative defense that may raise individualized issues; case-by-case analysis more appropriate at the merits stage).
Finally, no individual participation would be required at the relief stage. If a certain group of association members establishes infringement, and Google fails to prevail on its fair-use defense with respect to that group, the Court could simply enjoin Google from displaying snippets of those association members' works. As the associational plaintiffs only seek injunctive relief, no individual damage assessment would be necessary. See Bldg. & Constr. Trades Council, 448 F.3d at 150.
b. Equitable Considerations Even if there were room for disagreement over whether the third Hunt prong has been met in this case, associational standing would still be appropriate. As noted above, the third Hunt prong is not an Article III standing requirement; it is prudential. Therefore, this Court has a certain degree of
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discretion in granting associational standing where, as is undisputedly the case here, the first two prongs are met.
The Supreme Court has acknowledged that associational standing confers certain advantages on individual members and the judicial system as a whole. Specifically, an association "can draw upon a pre-existing reservoir of expertise and capital" that its individual members lack. Brock, 477 U.S. at 289. Furthermore, its participation assures "'concrete adverseness'" and "'sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.'" Id. (quoting Harlem Valley Transp. Ass'n v. Stafford, 360 F. Supp. 1057, 1065 (S.D.N.Y. 1973)).
Indeed, the Authors Guild has played an integral part in every stage of this litigation since its inception almost seven years ago. It spent several of those years negotiating with Google on behalf of its members. Only when it became apparent, in 2011, that no settlement would be achieved did Google object to the Authors Guild's participation in the litigation. While the ASMP Associational Plaintiffs have not litigated against Google for as many years as the Authors Guild, their participation nonetheless confers the important benefits articulated in Brock.
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Furthermore, given the sweeping and undiscriminating nature of Google's unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually. When Google copied works, it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting "snippets" of a particular work would constitute "fair use." It copied and made search results available en masse. Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually and assert rights in a separate action. Because Google treated the copyright holders as a group, the copyright holders should be able to litigate on a group basis. B. Motion for Class Certification
1. Applicable Law A plaintiff seeking class certification must meet the
prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure -- numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23. If the prerequisites of Rule 23(a) are met, the court then must determine whether the putative class can be certified and maintained under any one of the three subsections of Rule 23(b). In re Literary Works In
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Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 19 of 32
Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011). Here, plaintiffs seek class certification pursuant to subsection (b)(3) of Rule 23.
The party seeking class certification bears the burden of showing, by a preponderance of the evidence, that the requirements of Rule 23 are met. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-04 (2d Cir. 2008). The Second Circuit has clarified the standards governing adjudication of a motion for class certification:
(1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement . . . . In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
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a. Rule 23(a) Prerequisites i. Numerosity
Rule 23(a)(1) requires the putative class to be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Numerosity can be presumed if the class comprises at least forty members. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Courts do not require "evidence of exact class size or identity of class members." Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). If there is any dispute as to the size of the proposed class, however, the court must resolve it and make a finding as to the approximate size. See In re IPO Sec. Litig., 471 F.3d at 41.
ii. Commonality Under Rule 23(a)(2), there must be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). The Rule does not require all questions of law or fact to be common. Indeed, even a single common question will suffice. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011) (citations and internal quotation marks omitted); Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) ("The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact.").
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Commonality requires that the class members have "suffered the same injury," Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982), and that their claims depend on "a common contention," Wal-Mart, 131 S. Ct. at 2551. "That common contention, moreover, must be of such a nature that it is capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. Therefore, what matters is "'the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.'" Id. (emphasis in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Importantly, Rule 23(a)(2) does not require that the claims of the lead plaintiffs "be identical to those of all other plaintiffs." Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 176 (S.D.N.Y. 2008). Indeed, "'factual differences in the claims of the class do not preclude a finding of commonality.'" Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 73 (S.D.N.Y. 2006) (quoting 5 Moore's Federal Practice § 23.23[2]). Commonality may be found where the plaintiffs' alleged injuries "derive from a
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unitary course of conduct by a single system." Marisol A., 126 F.3d at 377.
iii. Typicality The commonality and typicality requirements of Rule 23(a) tend to merge such that similar considerations inform the analysis for both prerequisites. Wal-Mart, 131 S. Ct. at 2551 n.5; Marisol A., 126 F.3d at 376. Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of [those] of the class." Fed. R. Civ. P. 23(a)(3). The typicality requirement "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001) (quoting Marisol A., 126 F.3d at 376) (internal quotation marks omitted); see In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (quoting Robidoux, 987 F.2d at 936). "[M]inor variations in the fact patterns underlying [the] individual claims" do not preclude a finding of typicality. Robidoux, 987 F.2d at 936-37. By contrast, "unique defenses" that "threaten to become the focus of the litigation" may preclude such a finding. Flag Telecom, 574 F.3d at 40 (citation and internal quotation marks omitted).
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iv. Adequacy Finally, Rule 23(a) requires that the class representatives will "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). This question involves an inquiry as to whether: "1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). This inquiry "serves to uncover conflicts of interest between named parties and the class they seek to represent." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Not every conflict, however, precludes a finding of adequacy. "The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should be disregarded at the class certification stage." In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir. 2001) (citations and internal quotation marks omitted), superseded on other grounds by rule, Fed. R. Civ. P. 23(g), as stated in Attenborough v. Const. and Gen. Bldg. Laborors' Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006).
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b. Rule 23(b)(3) A class action may be maintained under Rule 23(b)(3) if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). The predominance requirement is satisfied "if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)) (internal quotation marks omitted).6 That an affirmative defense may arise that affects different class members differently "does not compel a finding that individual issues predominate over common ones." In re Nassau Cnty. Strip Search

6

Rule 23(b)(3) requires that the district court

determine what questions of law or fact are common to the members

of the class. Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards &

Sons, Inc., 502 F.3d 91, 106 (2d Cir. 2007) (internal quotation

marks and alteration omitted).

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Cases, 461 F.3d 219, 225 (2d Cir. 2006) (citation and internal quotation marks omitted).
Together with the "superiority" requirement, the predominance requirement "ensures that the class will be certified only when it would 'achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.'" Cordes, 502 F.3d at 104 (quoting Amchem Prods.,, 521 U.S. at 615).
2. Application In this case, the proposed class is defined as "[a]ll
persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors." (See Notice of Mot. for Class Cert. at 2).7

7

A "Book" is defined as a "full-length book published in

the United States in the English language and registered with the

United States Copyright Office within three months after its

first publication." Id. Google's directors, officers, and

employees are excluded from the class, as well as United States

Government and Court personnel. Id.

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a. The Rule 23(a) Requirements Are Satisfied Google does not dispute that the proposed class satisfies the numerosity, commonality, and typicality requirements of Rule 23(a). Indeed, those requirements are met here. The class meets the numerosity requirement. The class will likely number in the thousands, at least, as Google has scanned millions of books. The class also meets the commonality requirement. Every potential class member's alleged injury arises out of Google's "unitary course of conduct." Marisol A., 126 F.3d at 377. Specifically, every potential class member has allegedly been injured by Google's Library Project, whereby Google, without authorization, copied books in which the class members own copyright interests. Whether Google's actions constitute an infringement of these copyright interests and whether Google's use of "snippets" of these works constitutes "fair use" are "common questions" capable of class-wide resolution. Wal-Mart, 131 S. Ct. at 2551. Similarly, the typicality requirement is satisfied, as "each class member's claim arises from the same course of
-26-

Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 27 of 32
events": Google's copying of books pursuant to its Library Project. See Robinson, 267 F.3d at 155.
Google disputes, however, whether the adequacy requirement has been satisfied. It argues that "most [] class members perceive [Google's copying of their work] as a benefit." (Def.'s Cert. Opp'n at 9). Accordingly, it contends that there is "a fundamental conflict between the interests the named plaintiffs seek to advance and the interests of absent class members," rendering the representation inadequate. (Def.'s Cert. Opp'n at 8). In support of this argument, Google points to a survey in which slightly over 500 authors (58% of those surveyed) "approve" of Google scanning their work for search purposes, and approximately 170 (19% of those surveyed) "feel" that they benefit financially, or would benefit financially, from Google scanning their books and making snippets available in search. (Decl. of Hal Poret, Ex. 1 at 14).
Google's argument is without merit. The lead plaintiffs are adequate representatives of the class. First, their copyright claims do not conflict in any way with the copyright claims of the other class members. This is not a case where the lead plaintiffs, in pursuing their own claims, might
-27-

Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 28 of 32

compromise the claims of another group of class members.8 Indeed, Google has not pointed to any legal or factual argument made by the lead plaintiffs that would undermine the copyright claim of any other class member.
Second, that some class members may prefer to leave the alleged violation of their rights unremedied is not a basis for finding the lead plaintiffs inadequate. "'The court need concern itself only with whether those members who are parties are interested enough to be forceful advocates and with whether there is reason to believe that a substantial portion of the class would agree with their representatives were they given a choice.'" Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 563 n.7 (2d Cir. 1968) (quoting Jack B. Weinstein, Revision of Procedure: Some Problems in Class Actions, 9 Buffalo L. Rev. 433, 460 (1960)). Accordingly, the survey results cited by Google do not preclude a finding of adequacy.
In any case, the survey does not prove that any individual author would not want to participate in the instant

8

To be sure, some potential class members' interests may

be different from other members' interests. (See Letter from

Pamela Samuelson, Professor of Law and Information, UC Berkeley

School of Law (Feb. 13, 2012) (on file with the court)). But

this fact does not undermine the overall efficacy of a class

action. If any author feels that her interests are not aligned

with those of the other class members, she may request to be

excluded. See Rule 23(c)(2)(B).

-28-

Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 29 of 32
class action. Importantly, the survey did not ask the respondents whether they would want to be part of a law suit through which they might recover damages. Indeed, it is possible that some authors who "approve" of Google's actions might still choose to join the class action. Therefore, the court cannot conclude from the survey that the representative plaintiffs' interests are in conflict with any subset of class members.
b. The Requirements of 23(b)(3) Are Met Finally, class certification is warranted in this case because the predominance and superiority requirements of Rule 23(b)(3) are satisfied.
(i) Predominance The common issues presented in this litigation predominate over any individual ones. As discussed above, these common questions include: (1) whether Google's actions in connection with the Library Project constituted copyright infringement; and (2) whether the affirmative defense of "fair use" applies. These issues are largely subject to "generalized proof." See Cordes, 502 F.3d at 107-08. Every potential class member's claim arises out of Google's uniform, widespread practice of copying entire books without permission of the copyright holder and displaying snippets of those books for
-29-

Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 30 of 32

search. Whether this practice constitutes copyright infringement does not depend on any individualized considerations. Furthermore, the question of "fair use" may be evaluated on a sub-class-wide basis. The Court would determine whether the defense applies to a particular type of book, obviating the need to evaluate each book individually. Finally, because representative plaintiffs only ask for statutory damages, there is no need for any individualized inquiry into the harm suffered. See Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 130 (S.D.N.Y. 2011).
Google argues -- as it did in its motions to dismiss -that the issue of copyright ownership is not subject to generalized proof because publishing contracts can create varying degrees and types of ownership interests, not all of which would permit the author to sue for infringement. (Def.'s Cert. Opp'n 11-15). Accordingly, to obtain relief, it may be that an author will have to submit some documentation proving that he retains a beneficial interest in the copyrighted work. This "individual" issue, however, does not predominate over the "common" ones discussed above.9

9

Google also contends that many authors do not receive

royalties for "promotional" uses, and therefore have no

beneficial interest in the right to use their work for

promotional purposes. (Def.'s Cert. Opp'n at 14). It argues

-30-

Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 31 of 32
(ii) Superiority Class action is the superior method for resolving this litigation. It is, without question, more efficient and effective than requiring thousands of authors to sue individually. Requiring this case to be litigated on an individual basis would risk disparate results in nearly identical suits and exponentially increase the cost of litigation. See Cromer Fin. Ltd. v. Berger, 205 F.R.D. 113, 133 (S.D.N.Y. 2001). Class action, by contrast, would achieve economies of time and effort, resolving common legal and factual issues "without sacrificing procedural fairness or bringing about other undesirable results." Cordes, 502 F.3d at 104.
CONCLUSION For the reasons stated above, Google's motions to dismiss the claims of the associational plaintiffs are denied and
that the display of snippets "facilitates sales" and is therefore a promotional use in which these authors have no beneficial interest. (Id.). This argument fails as it is based on the unestablished premise that the display of snippets facilitates sales. Furthermore, while these authors may have authorized a publisher to promote their works, they have not authorized Google to do so.
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Case 1:05-cv-08136-DC Document 1023 Filed 05/31/12 Page 32 of 32

 
 Case 1:05-cv-08136-DC Document 1026 Filed 06/11/12 Page 1 of 3

UNITED STATES DISTRICT COURT 


SOUTHERN DISTRICT OF NEW YORK

~ , " ".

: i ' .....

The Authors Guild, Inc., Associational Plaintiff, 
 Betty Miles, Joseph Goulden, and Jim Bouton, 
 individually and on behalf of all others similarly 
 situated, 

Plaintiffs,
v.
Google Inc.,
Defendant.

Case No. 05 CV 8136-DC

------------------------------------- x
[PftOPOSEBt ORDER GRANTING 
 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 

THIS MAITER HAVING BEEN SUBMITTED TO THE COURT on Plaintiffs'
motion for an Order pursuant to Rule 23 of the Federal Rules of Civil Procedure:
1. Certifying the following class (Hthe Class"):
All persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors. "Books" means each full-length book published in the United States in the English language and registered with the United States Copyright Office within three months after its first publication. Excluded from the Class are the directors, oftlcers and employees of Google; personnel of the departments, agencies and instrumentalities of the United States Government; and Court personnel;

Case 1:05-cv-08136-DC Document 1026 Filed 06/11/12 Page 2 of 3
2. Designating Betty Miles, Joseph Goulden, and Jim Bouton as
Representative Plaintiffs for the Class; and 3. Appointing Boni & Zack LLC as Lead Counsel, and Milberg LLP
and Kohn, Swift & Graf, PC as Class Counsel. AND THE COURT HAVING READ AND CONSIDERED all the papers filed in
support of and in opposition to the motion, and finding that the members of the Class are so numerous that joinder of all members is impracticable, there are questions of law or fact common to the Class, the claims or defenses of the representative parties are typical of the claims or defenses of the Class, the representative parties will fairly and adequately protect the interests of the Class, questions oflaw or fact common to Class members predominate over any questions affecting only individual members, and a class action is superior to any other available method for the fair and efficient adjudication of this controversy,
IT IS HEREBY ORDERED: 1. The Class is certified, defined as follows: All persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors. "Books" means each full-length book published in the United States in the English language and registered with the United States Copyright Office within three months after its first publication. Excluded from the Class are the directors, officers and employees of Google; personnel of the departments, agencies and instrumentalities of the United States Government; and Court personnel; 2. Betty Miles, Joseph Goulden, and Jim Bouton are designated as Representative Plaintiffs for the Class; and
2

Case 1:05-cv-08136-DC Document 1026 Filed 06/11/12 Page 3 of 3

3. Boni & Zack LLC is appointed Lead Counsel~ and Milberg LLP and Kohn, Swift & Graf, P.c. are appointed Class Counsel.

~ DATED this - - - - - - dityof

_ _ __

~Honorable Den~in,

United States C!rcuit Juda.e.

~.

S"iJf/~ B') pe~r ~/l/'-

3 


 
 CCasaes:e112:-0352-0c0v-08D13o6c-uDmCentD: o1c8u0menPta1g0e6:51 Fi0le7d/0017/2/0011/313 P9a7g9e0516of 5 5

12-3200-cv Authors Guild Inc., et al. v. Google Inc.

N.Y.S.D. Case # 05-cv-8136(DC)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2012

(Argued On: May 8, 2013

Decided: July 1, 2013)

Docket No. 12-3200-cv _______________________________________________________________

THE AUTHORS GUILD, INC., Associational Plaintiff, BETTY MILES, JOSEPH GOULDEN, and JIM BOUTON, individually and on behalf of all others similarly situated,

Plaintiffs-Appellees, v.
GOOGLE INC.,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: _J_u_ly_0_1_,_2_0_1_3____

Defendant-Appellant.

_______________________________________________________________

Before: LEVAL, CABRANES, and B.D. PARKER, Circuit Judges. We consider in this appeal whether the United States District Court for the Southern
District of New York (Denny Chin, Circuit Judge, sitting by designation) erred in certifying the plaintiff class—authors claiming that defendant-appellant Google Inc. committed copyright infringement by copying and displaying “snippets” of millions of books in the Library Project of its Google Books search tool. On the particular facts of this case, we conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google’s “fair use” defense. Accordingly, we vacate the June 11, 2012 order certifying the class and remand
1

CERTIFIED COPY ISSUED ON 07/01/2013

CCasaes:e112:-0352-0c0v-08D13o6c-uDmCentD: o1c8u0menPta1g0e6:52 Fi0le7d/0017/2/0011/313 P9a7g9e0526of 5 5
the cause to the District Court, for consideration of the fair use issues, without prejudice to any future motion for class certification.
SETH P. WAXMAN (Louis R. Cohen, Randolph D. Moss, Daniel P. Kearney, Jr., Ari Holtzblatt, on the brief) Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Appellant Google Inc. Daralyn J. Durie, Joseph C. Gratz, Durie Tangri LLP, San Francisco, CA, for Appellant Google Inc.
ROBERT J. LAROCCA, Kohn, Swift & Graf, P.C., Philadelphia, PA, for Appellees The Authors Guild Inc., et al. Michael J. Boni, Joshua D. Snyder, John E. Sindoni, Boni & Zack LLC, Bala Cynwyd, PA, for Appellees The Authors Guild Inc., et al. Sanford P. Dumain, Milberg LLP, New York, NY, for Appellees The Authors Guild Inc., et al.
PER CURIAM: Plaintiff-appellee The Authors Guild, an association of authors, as well several individual
authors (jointly, “plaintiffs”), began this suit in 2005, alleging that defendant-appellant Google Inc. (“Google”) committed copyright infringement through the Library Project of its “Google Books” search tool by scanning and indexing more than 20 million books and making available for public display “snippets” of most books upon a user’s search.1 Following a course of discovery and settlement discussions, the parties moved for final approval of an amended proposed class settlement agreement (“ASA”) before the District Court. In a thorough opinion, Judge Chin refused
1 Plaintiffs sought injunctive and declaratory relief as well as statutory damages. See Authors Guild v. Google, Inc., 282 F.R.D. 384, 387 (S.D.N.Y. 2012).
2

CCasaes:e112:-0352-0c0v-08D13o6c-uDmCentD: o1c8u0menPta1g0e6:53 Fi0le7d/0017/2/0011/313 P9a7g9e0536of 5 5
to approve the ASA on March 22, 2011. See Authors Guild Inc. v. Google Inc., 770 F. Supp. 2d 666, 686 (S.D.N.Y. 2011).
Following the District Court’s denial of the motion to approve the ASA, plaintiffs moved to certify a proposed class of “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors.” Authors Guild v. Google, Inc., 282 F.R.D. 384, 393 (S.D.N.Y. 2012) (alteration in original).2 The District Court granted plaintiffs’ motion to certify the proposed class of authors pursuant to Federal Rule of Civil Procedure 23. Id. at 395.
Google opposed the motion for class certification before the District Court and now appeals the District Court’s grant of class certification to us. Google argues, inter alia, that it intends to assert a “fair use” defense,3 which might moot the litigation. Google also claims that plaintiffs are unable to “fairly and adequately protect the interests of the class,” Fed. R. Civ. P. 23(a)(4), because many members of the class, perhaps even a majority, benefit from the Library Project and oppose
2 The motion for class certification also specified that a “book” was defined as each “full-length book published in the United States in the English language and registered with the United States Copyright Office within three months after its first publication. Google’s directors, officers, and employees [were] excluded from the class, as well as United States Government and Court personnel.” Id. at 393 n.7 (internal citations omitted). 3 As we have explained, “[f]air use is a judicially created doctrine dating back nearly to the birth of copyright in the eighteenth century, but first explicitly recognized in statute in the Copyright Act of 1976.” On Davis v. The Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001) (internal citations omitted). Under that statute, to determine whether the use of a work is a fair use, courts consider four factors, including:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.
3

CCasaes:e112:-0352-0c0v-08D13o6c-uDmCentD: o1c8u0menPta1g0e6:54 Fi0le7d/0017/2/0011/313 P9a7g9e0546of 5 5
plaintiffs’ efforts. See Appellant’s Br. 25 (arguing that class certification has “potentially tied many [authors] in the class to a suit that is contrary to their interests”); see also Joint App’x 244 (summarizing the findings of a controverted survey of authors).
Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact, see Fed. R. Civ. P. 23(a)(2), (3), (b)(3). See, e.g., FPX, LLC v. Google, Inc., 276 F.R.D. 543, 551 (E.D. Tex. 2011) (denying plaintiffs’ request for class certification “because of the fact-specific inquiries the court would have to evaluate to address [defendants’] affirmative defenses [including fair use of trademarks]”); Vulcan Golf, LLC v. Google Inc., 254 F.R.D. 521, 531 (N.D. Ill. 2008) (“The existence of affirmative defenses [such as fair use of trademarks] which require individual resolution can be considered as part of the court’s analysis to determine whether individual issues predominate under Rule 23(b)(3).”); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.12 (1978) (“Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative’s claims or defenses . . . and the presence of common questions of law or fact are obvious examples.” (quotation marks omitted)); Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (“[A] court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”); cf. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (holding that “a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims”). Moreover, we are persuaded that holding the issue of class certification in abeyance until Google’s fair use defense has been
4

CCasaes:e112:-0352-0c0v-08D13o6c-uDmCentD: o1c8u0menPta1g0e6:55 Fi0le7d/0017/2/0011/313 P9a7g9e0556of 5 5 resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand. Accordingly, we vacate the District Court’s order of June 11, 2012 certifying plaintiffs’ proposed class, and we remand the cause to the District Court, for consideration of the fair use issues.
CONCLUSION For the reasons stated above, we VACATE the June 11, 2012 order of the District Court certifying plaintiffs’ proposed class and REMAND the cause to the District Court for consideration of the fair use issues, without prejudice to any renewal of the motion for class certification before the District Court following its decision on the fair use defense. In the interest of judicial economy, any further appeal from the decisions of the District Court shall be assigned to this panel. The mandate shall issue forthwith.
5

 
 Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 1 of 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-x
THE AUTHORS GUILD, INC., and BETTY MILES, JOSEPH GOULDEN, and JIM BOUTON, on behalf of themselves and all others similarly situated,

usnc SDN.l'
··DOC{]M~NT
ELECTRON[C~LL ¥ ·FILED
DOC#:_ _ _ _ _~"'I-""--....
DATE FltEJ): II 11'1113 v ,
OPINION

Plaintiffs,

05 Civ. 8136 (DC)

- against ­

GOOGLE INC.,

Defendant.

- -x

APPEARANCES: (See last page)

CHIN, Circuit Judge

Since 2004, when it announced agreements with several

major research libraries to digitally copy books in their

collections, defendant Google Inc. ("Google") has scanned more

than twenty million books. It has delivered digital copies to

participating libraries, created an electronic database of books,

and made text available for online searching through the use of

"snippets." Many of the books scanned by Google, however, were

under copyright, and Google did not obtain permission from the

copyright holders for these usages of their copyrighted works.

As a consequence, in 2005, plaintiffs brought this class action

charging Google with copyright infringement.

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 2 of 30

Before the Court are the parties' cross-motions for summary judgment with respect to Google's defense of fair use under § 107 of the Copyright Act, 17 U.S.C. § 107. For the reasons set forth below, Goggle's motion for summary judgment is granted and plaintiffs' motion for partial summary judgment is denied. Accordingly, judgment will be entered in favor of Google dismissing the case.
BACKGROUND A. The Facts
For purposes of this motion, the facts are not in dispute. (See 9/23/13 Tr. 10-11, 15, 25-28 (Doc. No. 1086)).1 They are summarized as follows:
1. The Parties Plaintiff Jim Bouton, the former pitcher for the New
York Yankees, is the legal or beneficial owner of the U.S. copyright in the book Ball Four. Plaintiff Betty Miles is the legal or beneficial owner of the U.S. copyright in the book The Trouble with Thirteen. Plaintiff Joseph Goulden is the legal or beneficial owner of the U.S. copyright in the book The

1

When pressed at oral argument to identify any factual

issues that would preclude the award of summary judgment,

plaintiffs' counsel was unable to do so. (Id. at 25-26).

-2-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 3 of 30
Superlawyers: The Small and Powerful World of the Great Washington Law Firms. (Google Resp. ¶¶ 1-3).2 All three books have been scanned by Google and are available for search on Google's website, without plaintiffs' permission. (Google Resp. ¶ 4). Plaintiff The Authors Guild, Inc., is the nation's largest organization of published authors and it advocates for and supports the copyright and contractual interests of published writers. (Google Resp. ¶¶ 7-8).
Google owns and operates the largest Internet search engine in the world. (Google Resp. ¶ 9). Each day, millions of people use Google's search engine free of charge; commercial and other entities pay to display ads on Google's websites and on other websites that contain Google ads. (Google Resp. ¶ 10). Google is a for-profit entity, and for the year ended December 31, 2011, it reported over $36.5 billion in advertising revenues. (Google Resp. ¶ 11).

2

"Google Resp." refers to Google's Responses and

Objections to plaintiffs' Statement of Undisputed Facts in

Support of Their Motion for Partial Summary Judgment (Doc. No.

1077). "Pl. Resp." refers to plaintiffs' Response to Google's

Local Rule 56.1 Statement (Doc. No. 1071). I have relied on the

parties' responses to the statements of undisputed facts only to

the extent that factual statements were not controverted.

-3-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 4 of 30

2. The Google Books Project In 2004, Google announced two digital books programs.
The first, initially called "Google Print" and later renamed the "Partner Program," involved the "hosting" and display of material provided by book publishers or other rights holders. (Google Resp. ¶¶ 13, 14). The second became known as the "Library Project," and over time it involved the digital scanning of books in the collections of the New York Public Library, the Library of Congress, and a number of university libraries. (Clancy Decl. ¶ 5 (Doc. No. 1035); Google Resp. ¶¶ 25, 26, 27; Pl. Resp. ¶ 14).
The Partner Program and the Library Project together comprise the Google Books program ("Google Books"). (Google Resp. ¶ 15). All types of books are encompassed, including novels, biographies, children's books, reference works, textbooks, instruction manuals, treatises, dictionaries, cookbooks, poetry books, and memoirs. (Pl. Resp. ¶ 6; Jaskiewicz Decl. ¶ 4 (Doc. No. 1041)). Some 93% of the books are non-fiction while approximately 7% are fiction.3 Both in-print

3

These estimates are based on studies of the contents of

the libraries involved. (Def. Mem. at 7 (Doc. No. 1032) (citing

Brian Lavoie and Lorcan Dempsey, Beyond 1923: Characteristics of

Potentially In-Copyright Print Books in Library Collections, 15-

D-Lib 11/12 (2009), available at http://www.dlib.org/dlib/

november09/lavoie/11lavoie.html (last visited November 12,

-4-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 5 of 30
and out-of-print books are included, although the great majority are out-of-print. (Jaskiewicz Decl. ¶ 4).
In the Partner Program, works are displayed with permission of the rights holders. (Google Resp. ¶ 16). The Partner Program is aimed at helping publishers sell books and helping books become discovered. (Google Resp. ¶ 18). Initially, Google shared revenues from ads with publishers or other rights holders in certain circumstances. In 2011, however, Google stopped displaying ads in connection with all books. (Google Resp. ¶¶ 17, 21; Dougall Decl. ¶¶ 5-8 (Doc. No. 1076)). Partners provide Google with a printed copy of their books for scanning, or a digital copy if one already exists. (Google Resp. ¶ 19). Partners decide how much of their books -- from a few sample pages to the entire book -- are browsable. (Google Resp. ¶ 20). As of early 2012, the Partner Program included approximately 2.5 million books, with the consent of some 45,000 rights holders. (Google Resp. ¶ 24).
As for the Library Project, Google has scanned more than twenty million books, in their entirety, using newlydeveloped scanning technology. (Google Resp. ¶¶ 28, 29).
2013)). The numbers are not disputed. (See 9/23/2013 Tr. at 26).
-5-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 6 of 30
Pursuant to their agreement with Google, participating libraries can download a digital copy of each book scanned from their collections. (Google Resp. ¶ 30). Google has provided digital copies of millions of these books to the libraries, in accordance with these agreements. (Google Resp. ¶ 85). Some libraries agreed to allow Google to scan only public domain works, while others allowed Google to scan in-copyright works as well. (Google Resp. ¶ 36).
Google creates more than one copy of each book it scans from the library collections, and it maintains digital copies of each book on its servers and back-up tapes. (Google Resp. ¶¶ 40, 41). Participating libraries have downloaded digital copies of in-copyright books scanned from their collections. (Google Resp. ¶¶ 53, 54). They may not obtain a digital copy created from another library's book. (Jaskiewicz Decl. ¶¶ 6, 8). The libraries agree to abide by the copyright laws with respect to the copies they make. (Clancy Decl. ¶ 5).
Google did not seek or obtain permission from the copyright holders to digitally copy or display verbatim expressions from in-copyright books. (Google Resp. ¶¶ 53, 54). Google has not compensated copyright holders for its copying of or displaying of verbatim expression from in-copyright books or
-6-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 7 of 30
its making available to libraries for downloading of digital copies of in-copyright books scanned from their collections. (Google Resp. ¶ 55).
3. Google Books In scanning books for its Library Project, including
in-copyright books, Google uses optical character recognition technology to generate machine-readable text, compiling a digital copy of each book. (Google Resp. ¶ 62; Pl. Resp. ¶ 18; Jaskiewicz Decl. ¶ 3). Google analyzes each scan and creates an overall index of all scanned books. The index links each word or phrase appearing in each book with all of the locations in all of the books in which that word or phrase is found. The index allows a search for a particular word or phrase to return a result that includes the most relevant books in which the word or phrase is found. (Clancy Decl. ¶ 6; Pl. Resp. ¶¶ 22-26). Because the full texts of books are digitized, a user can search the full text of all the books in the Google Books corpus. (Clancy Decl. ¶ 7; Google Resp. ¶ 42).
Users of Google's search engine may conduct searches, using queries of their own design. (Pl. Resp. ¶ 10). In response to inquiries, Google returns a list of books in which the search term appears. (Clancy Decl. ¶ 8). A user can click
-7-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 8 of 30
on a particular result to be directed to an "About the Book" page, which will provide the user with information about the book in question. The page includes links to sellers of the books and/or libraries that list the book as part of their collections. No advertisements have ever appeared on any About the Book page that is part of the Library Project. (Clancy Decl. ¶ 9).
For books in "snippet view" (in contrast to "full view" books), Google divides each page into eighths -- each of which is a "snippet," a verbatim excerpt. (Google Resp. ¶¶ 43, 44). Each search generates three snippets, but by performing multiple searches using different search terms, a single user may view far more than three snippets, as different searches can return different snippets. (Google Resp. ¶ 45). For example, by making a series of consecutive, slightly different searches of the book Ball Four, a single user can view many different snippets from the book. (Google Resp. ¶¶ 46, 47).
Google takes security measures to prevent users from viewing a complete copy of a snippet-view book. For example, a user cannot cause the system to return different sets of snippets for the same search query; the position of each snippet is fixed within the page and does not "slide" around the search term; only the first responsive snippet available on any given page will be
-8-

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 9 of 30
returned in response to a query; one of the snippets on each page is "black-listed," meaning it will not be shown; and at least one out of ten entire pages in each book is black-listed. (Google Resp. ¶¶ 48-50; Pl. Resp. ¶¶ 35, 37-40). An "attacker" who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages. (Pl. Resp. ¶ 41). In addition, works with text organized in short "chunks," such as dictionaries, cookbooks, and books of haiku, are excluded from snippet view. (Pl. Resp. ¶ 42).
4. The Benefits of the Library Project and Google Books The benefits of the Library Project are many. First,
Google Books provides a new and efficient way for readers and researchers to find books. (See, e.g., Clancy Decl. Ex. G). It makes tens of millions of books searchable by words and phrases. It provides a searchable index linking each word in any book to all books in which that word appears. (Clancy Decl. ¶ 7). Google Books has become an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it
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facilitates finding and checking citations. (Br. of Amici Curiae American Library Ass'n et al. at 4-7 (Doc. No. 1048)). Indeed, Google Books has become such an important tool for researchers and librarians that it has been integrated into the educational system -- it is taught as part of the information literacy curriculum to students at all levels. (Id. at 7).
Second, in addition to being an important reference tool, Google Books greatly promotes a type of research referred to as "data mining" or "text mining." (Br. of Digital Humanities and Law Scholars as Amici Curiae at 1 (Doc. No. 1052)). Google Books permits humanities scholars to analyze massive amounts of data -- the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time. (Id. at 8-9; Clancy Decl. ¶ 15). Using Google Books, for example, researchers can track the frequency of references to the United States as a single entity ("the United States is") versus references to the United States in the plural ("the United States are") and how that usage has changed over time. (Id. at 7). The ability to determine how often different words or phrases appear in books at different times "can provide insights about fields as diverse as
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lexicography, the evolution of grammar, collective memory, the adoption of technology, the pursuit of fame, censorship, and historical epidemiology." Jean-Baptiste Michel et al., Quantitative Analysis of Culture Using Millions of Digitized Books, 331 Science 176, 176 (2011) (Clancy Decl. Ex. H).
Third, Google Books expands access to books. In particular, traditionally underserved populations will benefit as they gain knowledge of and access to far more books. Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices. Digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities. (Letter from Marc Maurer, President of the National Federation for the Blind, to J. Michael McMahon, Office of the Clerk (Jan. 19, 2010) (Doc. No. 858)). Google Books facilitates the identification and access of materials for remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans. (Br. of Amici Curiae American Library Ass'n at 5-6).
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Fourth, Google Books helps to preserve books and give them new life. Older books, many of which are out-of-print books that are falling apart buried in library stacks, are being scanned and saved. See Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 670 (S.D.N.Y. 2011). These books will now be available, at least for search, and potential readers will be alerted to their existence.
Finally, by helping readers and researchers identify books, Google Books benefits authors and publishers. When a user clicks on a search result and is directed to an "About the Book" page, the page will offer links to sellers of the book and/or libraries listing the book as part of their collections. (Clancy Decl. ¶ 9). The About the Book page for Ball Four, for example, provides links to Amazon.com, Barnes&Noble.com, Books-A-Million, and IndieBound. (See Def. Mem. at 9). A user could simply click on any of these links to be directed to a website where she could purchase the book. Hence, Google Books will generate new audiences and create new sources of income.
As amici observe: "Thanks to . . . [Google Books], librarians can identify and efficiently sift through possible research sources, amateur historians have access to a wealth of previously obscure material, and everyday readers and researchers
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can find books that were once buried in research library archives." (Br. of Amici Curiae American Library Ass'n at 3). B. Procedural History
Plaintiffs commenced this action on September 20, 2005, alleging, inter alia, that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders. From the outset, Google's principal defense was fair use under § 107 of the Copyright Act, 17 U.S.C. § 107.
After extensive negotiations, the parties entered into a proposed settlement resolving plaintiffs' claims on a classwide basis. On March 22, 2011, I issued an opinion rejecting the proposed settlement on the grounds that it was not fair, adequate, and reasonable. Authors Guild v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011).
Thereafter, the parties engaged in further settlement discussions, but they were unable to reach agreement. The parties proposed and I accepted a schedule that called for the filing of plaintiffs' class certification motion, the completion of discovery, and then the filing of summary judgment motions. (See 9/16/11 Order (Doc. No. 982)). Plaintiffs filed a fourth amended class action complaint (the "Complaint") on October 14,
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2011. (Doc. No. 985). While the dates in the schedule were subsequently extended, the sequence of events was retained, with the class certification motion to precede the summary judgment motions, and adding dates for Google's filing of a motion to dismiss the Authors Guild's claims. (See, e.g., 1/17/12 Order (Doc. No. 996); 3/28/12 Order (Doc. No. 1007)).
Plaintiffs filed their class certification motion and Google filed its motion to dismiss the Authors Guild's claims. On May 31, 2012, I issued an opinion denying Google's motion to dismiss and granting the individual plaintiffs' motion for class certification. Authors Guild v. Google Inc., 282 F.R.D. 384 (S.D.N.Y. 2012).
On June 9, 2012, I issued an order re-setting the briefing schedule for the summary judgment motions. (6/19/12 Order (Doc. No. 1028)). The parties thereafter filed the instant cross-motions for summary judgment. Before the motions were fully submitted, however, the Second Circuit issued an order on September 17, 2012, staying these proceedings pending an interlocutory appeal by Google from my decision granting class certification. (9/17/12 Order (Doc. No. 1063)).
On July 1, 2013, without deciding the merits of the appeal, the Second Circuit vacated my class certification
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decision, concluding that "resolution of Google's fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues." Authors Guild, Inc. v. Google Inc., 721 F.3d 132, 134 (2d Cir. 2013). The Second Circuit remanded the case "for consideration of the fair use issues." Id. at 135.
On remand, the parties completed the briefing of the summary judgment motions. I heard oral argument on September 23, 2013. I now rule on the motions.
DISCUSSION For purposes of these motions, I assume that plaintiffs have established a prima facie case of copyright infringement against Google under 17 U.S.C. § 106. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Google has digitally reproduced millions of copyrighted books, including the individual plaintiffs' books, maintaining copies for itself on its servers and backup tapes. See 17 U.S.C. § 106(1) (prohibiting unauthorized reproduction). Google has made digital copies available for its Library Project partners to download. See 17 U.S.C. § 106(3) (prohibiting unauthorized distribution). Google has displayed snippets from the books to the public. See 17 U.S.C. § 106(5) (prohibiting unauthorized display). Google
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has done all of this, with respect to in-copyright books in the Library Project, without license or permission from the copyright owners. The sole issue now before the Court is whether Google's use of the copyrighted works is "fair use" under the copyright laws. For the reasons set forth below, I conclude that it is. A. Applicable Law
Fair use is a defense to a claim of copyright infringement. The doctrine permits the fair use of copyrighted works "to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts.'" Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, § 8, cl. 8)); accord Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013). Copyright law seeks to achieve that purpose by providing sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences. See Eldred v. Ashcroft, 537 U.S. 186, 212 (2003); Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006); Hon. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107-08 (1990). As the Supreme Court has held, "[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill
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copyright's very purpose." Campbell, 510 U.S. at 575; see also
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
560 (1985) (recognizing "the latitude for scholarship and comment
traditionally afforded by fair use").
The fair use doctrine is codified in § 107 of the
Copyright Act, which provides in relevant part as follows:
[T]he fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107.
The determination of fair use is "an open-ended and
context-sensitive inquiry," Blanch v. Koons, 467 F.3d at 251, and
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thus the fair use doctrine calls for "case-by-case analysis," Campbell, 510 U.S. at 577; see also Harper & Row, 471 U.S. at 553. The four factors enumerated in the statute are non-exclusive and provide only "general guidance"; they are to be explored and weighed together, "in light of the purposes of copyright." Campbell, 510 U.S. at 578-79; Harper & Row, 471 U.S. at 560-61. As fair use is an affirmative defense to a claim of copyright infringement, the proponent carries the burden of proof as to all issues in dispute. Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 918 (2d Cir. 1994); see also Campbell, 510 U.S. at 590.
A key consideration is whether, as part of the inquiry into the first factor, the use of the copyrighted work is "transformative," that is, whether the new work merely "supersedes" or "supplants" the original creation, or whether it:
instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Campbell, 510 U.S. at 579 (quoting Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111); accord Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006)
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("Most important to the court's analysis of the first factor is 'transformative' nature of the work."); Am. Geophysical Union, 60 F.3d at 923. Although transformative use is not "absolutely necessary" to a finding of fair use, "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Campbell, 510 U.S. at 579. B. Application
I discuss each of the four factors separately, and I then weigh them together.
1. Purpose and Character of Use The first factor is "the purpose and character of the
use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1).
Google's use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1168 (9th Cir. 2007) (holding that use of
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works -- "thumbnail images," including copyrighted photographs -- to facilitate search was "transformative"); Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (same); see also Bill Graham Archives, 448 F.3d at 609-11 (holding that display of images of posters in 480-page cultural history of the Grateful Dead was transformative, explaining that "[w]hile the small size [of the images of the posters] is sufficient to permit readers to recognize the historial significance of the posters, it is inadequate to offer more than a glimpse of their expressive value"). The display of snippets of text for search is similar to the display of thumbnail images of photographs for search or small images of concert posters for reference to past events, as the snippets help users locate books and determine whether they may be of interest. Google Books thus uses words for a different purpose -- it uses snippets of text to act as pointers directing users to a broad selection of books.
Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book
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text -- the frequency of words and trends in their usage provide substantive information.
Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
It is true, of course, as plaintiffs argue, that Google is a for-profit entity and Google Books is largely a commercial enterprise. The fact that a use is commercial "tends to weigh against a finding of fair use." Harper & Row, 471 U.S. at 562; accord Campbell, 510 U.S. at 585. On the other hand, fair use has been found even where a defendant benefitted commercially from the unlicensed use of copyrighted works. See, e.g., Blanch, 467 F.3d at 253; Bill Graham Archives, 448 F.3d at 612. See also Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 142 (2d Cir. 1998) (observing that Second Circuit does "not give much weight to the fact that the secondary use was for commercial gain"). Here, Google does not sell the scans it has made of books for Google Books; it does not sell the snippets that it displays; and it does not run ads on the About the Book
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pages that contain snippets. It does not engage in the direct commercialization of copyrighted works. See 17 U.S.C. § 107(1). Google does, of course, benefit commercially in the sense that users are drawn to the Google websites by the ability to search Google Books. While this is a consideration to be acknowledged in weighing all the factors, even assuming Google's principal motivation is profit, the fact is that Google Books serves several important educational purposes.
Accordingly, I conclude that the first factor strongly favors a finding of fair use.
2. Nature of Copyrighted Works The second factor is "the nature of the copyrighted
work." 17 U.S.C. § 107(2).4 Here, the works are books -- all types of published books, fiction and non-fiction, in-print and out-of-print. While works of fiction are entitled to greater copyright protection, Stewart v. Abend, 495 U.S. 207, 237 (1990), here the vast majority of the books in Google Books are non-fiction. Further, the books at issue are published and

4

The parties agree that the second factor plays little

role in the ultimate fair use determination. (Pl. Mem. at 36

n.18 (Doc. No. 1050); Def. Mem. at 25). See On Davis v. Gap,

Inc., 246 F.3d 152, 175 (2d Cir. 2001) ("The second statutory

factor, the nature of the copyrighted work, is rarely found to be

determinative.") (internal citation omitted).

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available to the public. These considerations favor a finding of fair use. See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1078 (2d Cir. 1992) ("Whether or not a work is published is critical to its nature under factor two because the scope of fair use is narrower with respect to unpublished works.") (quoting New Era Publ'ns Intern., ApS v. Carol Publ’g Grp., 904 F.2d 152, 157 (2d Cir. 1990) (internal quotation marks ommitted)).
3. Amount and Substantiality of Portion Used The third factor is "the amount and substantiality of
the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). Google scans the full text of books -- the entire books -- and it copies verbatim expression. On the other hand, courts have held that copying the entirety of a work may still be fair use. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Bill Graham Archives, 448 F.3d at 613 ("copying the entirety of a work is sometimes necessary to make a fair use of the image"). Here, as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search.
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On balance, I conclude that the third factor weighs slightly against a finding of fair use.
4. Effect of Use Upon Potential Market or Value The fourth factor is "the effect of the use upon the
potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). Here, plaintiffs argue that Google Books will negatively impact the market for books and that Google's scans will serve as a "market replacement" for books. (Pl. Mem. at 41). It also argues that users could put in multiple searches, varying slightly the search terms, to access an entire book. (9/23/13 Tr. at 6).
Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.
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To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered -- whether potential readers learn of its existence. (Harris Decl. ¶ 7 (Doc. No. 1039)). Google Books provides a way for authors' works to become noticed, much like traditional in-store book displays. (Id. at ¶¶ 14-15). Indeed, both librarians and their patrons use Google Books to identify books to purchase. (Br. of Amici Curiae American Library Ass'n at 8). Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences. Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.
Hence, I conclude that the fourth factor weighs strongly in favor of a finding of fair use.
5. Overall Assessment Finally, the various non-exclusive statutory factors
are to be weighed together, along with any other relevant considerations, in light of the purposes of the copyright laws.
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In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.
Similarly, Google is entitled to summary judgment with respect to plaintiffs' claims based on the copies of scanned books made available to libraries. Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Google's actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of
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Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 27 of 30

the library copies is to advance the libraries' lawful uses of

the digitized books consistent with the copyright law. The

libraries then use these digital copies in transformative ways.

They create their own full-text searchable indices of books,

maintain copies for purposes of preservation, and make copies

available to

print-disabled individuals, expanding access

for them in unprecedented ways. Google's actions in providing

the libraries with the ability to engage in activities that

advance the arts and sciences constitute fair use.

To the extent plaintiffs are asserting a theory of

secondary liability against Google, the theory fails because the

libraries' actions are protected by the fair use doctrine.

Indeed, in the HathiTrust case, Judge Baer held that the

libraries' conduct was fair use. See Authors Guild, Inc. v.

HathiTrust, 902 F. Supp. 2d 445, 460-61, 464 (S.D.N.Y. 2012) ("I

cannot imagine a definition of fair use that would not encompass

the transformative uses made by Defendants' [Mass Digitization

Project] and would require that I terminate this invaluable

contribution to the progress of science and cultivation of the

arts that at the same time effectuates the ideals espoused by the

[Americans with Disabilities Act]."). The fair use analysis set

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Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 28 of 30

forth above with respect to Google Books applies here as well to

the libraries' use of their scans, and if there is no liability

for copyright infringement on the libraries' part, there can be

no liability on Google's part.

CONCLUSION

For the reasons set forth above, plaintiffs' motion for

partial summary judgment is denied and Google's motion for

summary judgment is granted. Judgment will be entered in favor

of Google dismissing the Complaint. Google shall submit a

proposed judgment, on notice, within five business days hereof.

SO ORDERED.

Dated:

November 14, 2013 New York, New York

~~a \.
United States Circuit Judge
Sitting By Designation

28­

Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 29 of 30
APPEARANCES
For Plaintiffs:
BONI & ZACK LLC By: Michael J. Boni, Esq, Joshua D. Snyder, Esq. John E. Sindoni, Esq. 15 St. Asaphs Road Bala Cynwyd, PA 19004
FRANKFURT KURNIT KLEIN & SELZ P.C. By: Edward H. Rosenthal, Esq. Jeremy S. Goldman, Esq. 488 Madison Avenue New York, NY 10022
MILBERG LLP By: Sanford P. Dumain, Esq. 1 Pennsylvania Plaza New York, NY 10119
For Defendant Google, Inc.
DURIE TANGRI LLP By: Daralyn J. Durie, Esq. Joseph C. Gratz, Esq. David McGowan, Esq. Genevieve P. Rosloff, Esq. 217 Leidesdorff Street San Francisco, CA 94111
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Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 Page 30 of 30
For Amicus Curiae Digital Humanities and Law Scholars:
SAMUELSON LAW, TECHNOLOGY & PUBLIC POLICY CLINIC By: Jennifer M. Urban, Esq. Babak Siavoshy, Esq. Jason Schultz, Esq. University of California, Berkeley, School of Law 396 Simon Hall Berkeley, CA 94720 - and Matthew Sag, Esq. Loyola University of Chicago School of Law 25 East Pearson Street Chicago, IL 60611
For Amicus Curiae American Library Association, Association of College and Research Libraries, Association of Research Libraries, and Electronic Frontier Foundation:
JONATHAN BAND PLLC By: Jonathan Band, Esq. 21 Dupont Circle, NW Washington, DC 20036
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 MANDATE CasCea1se:0153-c-v4U-80N289I1,T3D6Eo-DDcuCSmTeDAnotTc2uE3m6S-e1Cn,tO111U0/19R74T/20FO1ilFe5d,A116P14/P14E75/3A115L, PSPaaggee1 1ofo1f 49

FOR THE SECOND CIRCUIT

N.Y.S.D. Case # 05-cv-8136(DC)

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of October, two thousand and fifteen.

Before:

Pierre N. Leval,

José A. Cabranes,

Barrington D. Parker,

Circuit Judges.

_____________________________________________

The Authors Guild, Betty Miles, Jim Bouton, Joseph Goulden, individually and on behalf of all others similarly situated,
Plaintiffs - Appellants,

JUDGMENT Docket No. 13-4829

Herbert Mitgang, Daniel Hoffman, individually and on behalf of all others similarly situated, Paul Dickson, The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., Association of American Publishers, Inc., Canadian Standard Association, John Wiley & Sons, Inc., individually and on behalf of all others similarly situated,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: _1_1_/_1_7_/2_0_1_5_____

Plaintiffs,

v.

Google, Inc.,

Defendant - Appellee. _____________________________________________

The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district court’s record and the parties' briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED.

For the Court:
Catherine O’Hagan Wolfe, Clerk of Court

MANDATE ISSUED ON 11/17/2015

CaCseas1e:0153--c4v8-02891, 3D6o-cDuCmeDnto2c3u6m-2e,n1t 1/01974/20F1i5le,d11614/41573/15, PaPgaeg1eo2f o4f849

13-4829-cv Authors Guild v. Google, Inc.

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

4

August Term, 2014

5

6

(Argued: December 3, 2014

Decided: October 16, 2015)

7

8

Docket No. 13-4829-cv

9

10 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

11

12 THE AUTHORS GUILD, BETTY MILES,

13 JIM BOUTON, JOSEPH GOULDEN,

14 individually and on behalf of all others

15 similarly situated,

16 Plaintiff-Appellants,

17

18 HERBERT MITGANG, DANIEL

19 HOFFMAN, individually and on behalf of

20 all others similarly situated, PAUL

21 DICKSON, THE MCGRAW-HILL

22 COMPANIES, INC., PEARSON

23 EDUCATION, INC., SIMON &

24 SCHUSTER, INC., ASSOCIATION OF

25 AMERICAN PUBLISHERS, INC.,

26 CANADIAN STANDARD

27 ASSOCIATION, JOHN WILEY & SONS,

28 INC., individually and on behalf of all

29 others similarly situated,

30

31 Plaintiffs,

32

33 v.

34

35 GOOGLE, INC.,

36 Defendant-Appellee.

37

38 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X

39

40 Before: LEVAL, CABRANES, PARKER, Circuit Judges.

41

1

CaCseas1e:0153--c4v8-02891, 3D6o-cDuCmeDnto2c3u6m-2e,n1t 1/01974/20F1i5le,d11614/41573/15, PaPgaeg2eo3f o4f849

13-4829-cv Authors Guild v. Google, Inc.

1

Plaintiff-appellants, who are authors of published books under copyright, appeal from the

2 judgment of the United States District Court for the Southern District of New York (Chin, J.) in

3 favor of Defendant Google, Inc. Plaintiffs sued Google, alleging that its Library Project and

4 Google Books project infringe Plaintiffs’ copyrights. Through these projects, Google makes and

5 retains digital copies of books submitted to it by major libraries, allows the libraries that

6 submitted a book to download and retain a digital copy, and allows the public to search the texts

7 of the digitally copied books and see displays of snippets of text. The district court granted

8 summary judgment based on its conclusion that Google’s copying is fair use under 17 U.S.C. §

9 107 and is therefore not infringing. The Court of Appeals concludes that the defendant’s copying

10 is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,

11 578-585 (1994), does not offer the public a meaningful substitute for matter protected by the

12 plaintiffs’ copyrights, and satisfies § 107’s test for fair use. AFFIRMED.

13

14 For Plaintiff-Appellants: PAUL M. SMITH, JENNER & BLOCK LLP, WASHINGTON,

15

DC (Edward H. Rosenthal, Jeremy S. Goldman, Anna

16

Kadyshevich, Andrew D. Jacobs, Frankfurt Kurnit Klein & Selz

17

PC, New York, NY on the brief)

18

19 For Defendant-Appellee: SETH P. WAXMAN, WILMER CUTLER PICKERING HALE

20

AND DORR LLP, WASHINGTON, D.C. (Louis R. Cohen, Daniel

21

P. Kearney, Jr., Weili J. Shaw, Wilmer Cutler Pickering Hale and

22

Dorr LLP, Washington D.C & Daralyn J. Durie, Joseph C. Gratz,

23

Durie Tangri LLP, San Francisco, CA on the brief)

24

25 Leval, Circuit Judge:

26

27

This copyright dispute tests the boundaries of fair use. Plaintiffs, who are authors of

28 published books under copyright, sued Google, Inc. (“Google”) for copyright infringement in the

29 United States District Court for the Southern District of New York (Chin, J.). They appeal from

30 the grant of summary judgment in Google’s favor. Through its Library Project and its Google

31 Books project, acting without permission of rights holders, Google has made digital copies of

32 tens of millions of books, including Plaintiffs’, that were submitted to it for that purpose by

33 major libraries. Google has scanned the digital copies and established a publicly available search

34 function. An Internet user can use this function to search without charge to determine whether

2

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13-4829-cv Authors Guild v. Google, Inc.
1 the book contains a specified word or term and also see “snippets” of text containing the

2 searched-for terms. In addition, Google has allowed the participating libraries to download and

3 retain digital copies of the books they submit, under agreements which commit the libraries not

4 to use their digital copies in violation of the copyright laws. These activities of Google are

5 alleged to constitute infringement of Plaintiffs’ copyrights. Plaintiffs sought injunctive and

6 declaratory relief as well as damages.

7

Google defended on the ground that its actions constitute “fair use,” which, under 17

8 U.S.C. § 107, is “not an infringement.” The district court agreed. Authors Guild, Inc. v. Google

9 Inc., 954 F. Supp. 2d 282, 294 (S.D.N.Y. 2013). Plaintiffs brought this appeal.

10

Plaintiffs contend the district court’s ruling was flawed in several respects. They argue:

11 (1) Google’s digital copying of entire books, allowing users through the snippet function to read

12 portions, is not a “transformative use” within the meaning of Campbell v. Acuff-Rose Music, Inc.,

13 510 U.S. 569, 578-585 (1994), and provides a substitute for Plaintiffs’ works; (2) notwithstanding

14 that Google provides public access to the search and snippet functions without charge and

15 without advertising, its ultimate commercial profit motivation and its derivation of revenue from

16 its dominance of the world-wide Internet search market to which the books project contributes,

17 preclude a finding of fair use; (3) even if Google’s copying and revelations of text do not

18 infringe plaintiffs’ books, they infringe Plaintiffs’ derivative rights in search functions, depriving

19 Plaintiffs of revenues or other benefits they would gain from licensed search markets; (4)

20 Google’s storage of digital copies exposes Plaintiffs to the risk that hackers will make their

21 books freely (or cheaply) available on the Internet, destroying the value of their copyrights; and

3

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13-4829-cv Authors Guild v. Google, Inc.
1 (5) Google’s distribution of digital copies to participant libraries is not a transformative use, and

2 it subjects Plaintiffs to the risk of loss of copyright revenues through access allowed by libraries.

3 We reject these arguments and conclude that the district court correctly sustained Google’s fair

4 use defense.

5

Google’s making of a digital copy to provide a search function is a transformative use,

6 which augments public knowledge by making available information about Plaintiffs’ books

7 without providing the public with a substantial substitute for matter protected by the Plaintiffs’

8 copyright interests in the original works or derivatives of them. The same is true, at least under

9 present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that

10 Google has usurped their opportunity to access paid and unpaid licensing markets for

11 substantially the same functions that Google provides fails, in part because the licensing markets

12 in fact involve very different functions than those that Google provides, and in part because an

13 author’s derivative rights do not include an exclusive right to supply information (of the sort

14 provided by Google) about her works. Google’s profit motivation does not in these

15 circumstances justify denial of fair use. Google’s program does not, at this time and on the

16 record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through

17 incursions of hackers. Finally, Google’s provision of digital copies to participating libraries,

18 authorizing them to make non-infringing uses, is non-infringing, and the mere speculative

19 possibility that the libraries might allow use of their copies in an infringing manner does not

20 make Google a contributory infringer. Plaintiffs have failed to show a material issue of fact in

21 dispute.

4

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13-4829-cv Authors Guild v. Google, Inc.

1

We affirm the judgment.

2

BACKGROUND

3

I. Plaintiffs

4

The author-plaintiffs are Jim Bouton, author of Ball Four; Betty Miles, author of The

5 Trouble with Thirteen; and Joseph Goulden, author of The Superlawyers: The Small and Powerful

6 World of the Great Washington Law Firms. Each of them has a legal or beneficial ownership in the 7 copyright for his or her book.1 Their books have been scanned without their permission by

8 Google, which made them available to Internet users for search and snippet view on Google’s 9 website.2

10

II. Google Books and the Google Library Project

11

Google’s Library Project, which began in 2004, involves bi-lateral agreements between

12 Google and a number of the world’s major research libraries.3 Under these agreements, the

1 The Authors Guild, a membership organization of published authors, is also a plaintiff and appellant, seeking injunctive and declaratory relief on behalf of its members. However, in a separate case, this court found that, under the Copyright Act, the Authors Guild lacks standing to sue for copyright infringement on its members’ behalf. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 94 (2d Cir. 2014). As the three individual author-plaintiffs clearly do have standing, their suit and their appeal are properly adjudicated, notwithstanding the Authors Guild’s lack of standing. See Bowsher v. Synar, 478 U.S. 714, 721 (1986) (finding that where one appellee had standing, the court need not consider the standing of other appellees in order to determine the merits of the appeal).
2 Google now honors requests to remove books from snippet view. Some Plaintiffs appear to have had books removed from snippet view.
3 Libraries participating in the Library Project at the time the suit was filed included the University of Michigan, the University of California, Harvard University, Stanford University,
5

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13-4829-cv Authors Guild v. Google, Inc.
1 participating libraries select books from their collections to submit to Google for inclusion in the

2 project. Google makes a digital scan of each book, extracts a machine-readable text, and creates an

3 index of the machine-readable text of each book. Google retains the original scanned image of

4 each book, in part so as to improve the accuracy of the machine-readable texts and indices as

5 image-to-text conversion technologies improve.

6

Since 2004, Google has scanned, rendered machine-readable, and indexed more than 20

7 million books, including both copyrighted works and works in the public domain. The vast

8 majority of the books are non-fiction, and most are out of print. All of the digital information

9 created by Google in the process is stored on servers protected by the same security systems

10 Google uses to shield its own confidential information.

11

The digital corpus created by the scanning of these millions of books enables the Google

12 Books search engine. Members of the public who access the Google Books website can enter

13 search words or terms of their own choice, receiving in response a list of all books in the database

14 in which those terms appear, as well as the number of times the term appears in each book. A

15 brief description of each book, entitled “About the Book,” gives some rudimentary additional

16 information, including a list of the words and terms that appear with most frequency in the book. It

17 sometimes provides links to buy the book online and identifies libraries where the book can be

Oxford University, Columbia University, Princeton University, Ghent University, Keio University, the Austrian National Library, and the New York Public Library.
6

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13-4829-cv Authors Guild v. Google, Inc.
1 found.4 The search tool permits a researcher to identify those books, out of millions, that do, as

2 well as those that do not, use the terms selected by the researcher. Google notes that this

3 identifying information instantaneously supplied would otherwise not be obtainable in lifetimes of

4 searching.

5

No advertising is displayed to a user of the search function. Nor does Google receive

6 payment by reason of the searcher’s use of Google’s link to purchase the book.

7

The search engine also makes possible new forms of research, known as “text mining”

8 and “data mining.” Google’s “ngrams” research tool draws on the Google Library Project corpus

9 to furnish statistical information to Internet users about the frequency of word and phrase usage 10 over centuries.5 This tool permits users to discern fluctuations of interest in a particular subject

11 over time and space by showing increases and decreases in the frequency of reference and usage

12 in different periods and different linguistic regions. It also allows researchers to comb over the

13 tens of millions of books Google has scanned in order to examine “word frequencies, syntactic

14 patterns, and thematic markers” and to derive information on how nomenclature, linguistic

15 usage, and literary style have changed over time. Authors Guild, Inc., 954 F. Supp. 2d at 287. The

16 district court gave as an example “track[ing] the frequency of references to the United States as a

4 Appendix A exhibits, as an example, a web page that would be revealed to a searcher who entered the phase “fair use,” showing snippets from ALAN LATMAN, ROBERT A. GORMAN, & JANE C. GINSBURG, COPYRIGHT FOR THE EIGHTIES (1985). 5 Appendix B exhibits the ngram for the phrase “fair use.”
7

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13-4829-cv Authors Guild v. Google, Inc.
1 single entity (‘the United States is’) versus references to the United States in the plural (‘the
2 United States are’) and how that usage has changed over time.” Id.6

3

The Google Books search function also allows the user a limited viewing of text. In

4 addition to telling the number of times the word or term selected by the searcher appears in the

5 book, the search function will display a maximum of three “snippets” containing it. A snippet is a

6 horizontal segment comprising ordinarily an eighth of a page. Each page of a conventionally 7 formatted book7 in the Google Books database is divided into eight non-overlapping horizontal

8 segments, each such horizontal segment being a snippet. (Thus, for such a book with 24 lines to a

9 page, each snippet is comprised of three lines of text.) Each search for a particular word or term

10 within a book will reveal the same three snippets, regardless of the number of computers from

11 which the search is launched. Only the first usage of the term on a given page is displayed. Thus,

12 if the top snippet of a page contains two (or more) words for which the user searches, and Google’s

6 For discussions and examples of scholarship and journalism powered by searchable digital text repositories, see, e.g., David Bamman & David Smith, Extracting Two Thousand Years of Latin from a Million Book Library, J. COMPUTING & CULTURAL HERITAGE 5 (2012), 1-13; Jean-Baptiste Michel et al., Quantitative Analysis of Culture Using Millions of Digitized Books, SCIENCE 331 (Jan. 14, 2011), 176-182; Marc Egnal, Evolution of the Novel in the United States: The Statistical Evidence, 37 SOC. SCI. HIST. 231 (2013); Catherine Rampell, The ‘New Normal’ Is Actually Pretty Old, N.Y. TIMES ECONOMIX BLOG (Jan. 11, 2011), http://economix.blogs.nytimes.com/2011/01/11/the-new-normal-is-actually-pretty-old/?_r=0; and Christopher Forstall et al., Modeling the Scholars: Detecting Intertextuality through Enhanced Word-Level N-Gram Matching, DIGITAL SCHOLARSHIP IN THE HUMANITIES (May 15, 2014), http://dx.doi.org/10.1093/llc/fqu014.
7 For unconventionally formatted books, the number of snippets per page may vary so as to approximate the same effect. The pages of a book of unusually tall, narrow format may be divided into more than eight horizontal snippets, while the pages of an unusually wide, short book may be divided into fewer than eight snippets.
8

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13-4829-cv Authors Guild v. Google, Inc.
1 program is fixed to reveal that particular snippet in response to a search for either term, the second

2 search will duplicate the snippet already revealed by the first search, rather than moving to reveal a

3 different snippet containing the word because the first snippet was already revealed. Google’s

4 program does not allow a searcher to increase the number of snippets revealed by repeated entry of

5 the same search term or by entering searches from different computers. A searcher can view more

6 than three snippets of a book by entering additional searches for different terms. However,

7 Google makes permanently unavailable for snippet view one snippet on each page and one

8 complete page out of every ten—a process Google calls “blacklisting.”

9

Google also disables snippet view entirely for types of books for which a single snippet is

10 likely to satisfy the searcher’s present need for the book, such as dictionaries, cookbooks, and

11 books of short poems. Finally, since 2005, Google will exclude any book altogether from snippet

12 view at the request of the rights holder by the submission of an online form.

13

Under its contracts with the participating libraries, Google allows each library to

14 download copies—of both the digital image and machine-readable versions—of the books that

15 library submitted to Google for scanning (but not of books submitted by other libraries). This is

16 done by giving each participating library access to the Google Return Interface (“GRIN”). The

17 agreements between Google and the libraries, although not in all respects uniform, require the

18 libraries to abide by copyright law in utilizing the digital copies they download and to take 19 precautions to prevent dissemination of their digital copies to the public at large.8 Through the

8 For example, the “Cooperative Agreement” between Google and the University of Michigan (“U of M”) provides, inter alia, that:
9

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13-4829-cv Authors Guild v. Google, Inc.
1 GRIN facility, participant libraries have downloaded at least 2.7 million digital copies of their own
2 volumes.
3
Both Google and U of M agree and intend to perform this Agreement pursuant to copyright law. If at any time, either party becomes aware of copyright infringement under this agreement, that party shall inform the other as quickly as reasonably possible. . . . U of M shall have the right to use the U of M Digital Copy . . . as part of services offered on U of M’s website. U of M shall implement technological measures (e.g., through use of the robots.txt protocol) to restrict automated access to any portion of the U of M Digital Copy or the portions of the U of M website on which any portion of the U of M Digital Copy is available. U of M shall also make reasonable efforts (including but not limited to restrictions placed in Terms of Use for the U of M website) to prevent third parties from (a) downloading or otherwise obtaining any portion of the U of M Digital Copy for commercial purposes, (b) redistributing any portions of the U of M Digital Copy, or (c) automated and systematic downloading from its website image files from the U of M Digital Copy. U of M shall restrict access to the U of M Digital Copy to those persons having a need to access such materials and shall also cooperate in good faith with Google to mutually develop methods and systems for ensuring that the substantial portions of the U of M Digital Copy are not downloaded from the services offered on U of M’s website or otherwise disseminated to the public at large.
JA 233.
Google’s agreement with Stanford appears to be less restrictive on Stanford than its agreements with other libraries. It ostensibly permits Stanford’s libraries to “provide access to or copies from the Stanford Digital Copy” to a wide range of users, including individuals authorized to access the Stanford University Network, individuals affiliated with “partner research libraries,” and “education, research, government institutions and libraries not affiliated with Stanford,” CA 133, and to permit authorized individuals to download or print up to ten percent of Stanford Digital Copy. On the other hand, the agreement requires Stanford to employ its digital copies in conformity with the copyright law. Without evidence to the contrary, which Plaintiffs have not provided, it seems reasonable to construe these potentially conflicting provisions as meaning that Stanford may do the enumerated things ostensibly permitted only to the extent that doing so would be in conformity with the copyright law.
10

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13-4829-cv Authors Guild v. Google, Inc.

1

III. Procedural History

2

Plaintiffs brought this suit on September 20, 2005, as a putative class action on behalf of

3 similarly situated, rights-owning authors.9 After several years of negotiation, the parties reached

4 a proposed settlement that would have resolved the claims on a class-wide basis. The proposed

5 settlement allowed Google to make substantially more extensive use of its scans of copyrighted

6 books than contemplated under the present judgment, and provided that Google would make

7 payments to the rights holders in return. On March 22, 2011, however, the district court rejected

8 the proposed settlement as unfair to the class members who relied on the named plaintiffs to

9 represent their interests. Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 679-680 (S.D.N.Y.

10 2011).

11

On October 14, 2011, Plaintiffs filed a fourth amended class action complaint, which is

12 the operative complaint for this appeal. See Dist. Ct. Docket No. 985. The district court certified

13 a class on May 31, 2012. Authors Guild v. Google Inc., 282 F.R.D. 384 (S.D.N.Y. 2012). Google

14 appealed from the certification, and moved in the district court for summary judgment on its fair

15 use defense. Plaintiffs cross-moved in the district court for summary judgment. On the appeal

16 from the class certification, our court—questioning whether it was reasonable to infer that the

17 putative class of authors favored the relief sought by the named plaintiffs—provisionally vacated

18 that class certification without addressing the merits of the issue, concluding instead that

19 “resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps

9 A year earlier, authors brought suit against the HathiTrust Digital Library, alleging facts that are closely related, although not identical, to those alleged in the instant case. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 91 (2d Cir. 2014).

11

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13-4829-cv Authors Guild v. Google, Inc.
1 moot our analysis of many class certification issues.” Authors Guild, Inc. v. Google Inc., 721

2 F.3d 132, 134 (2d Cir. 2013).

3

On November 14, 2013, the district court granted Google’s motion for summary

4 judgment, concluding that the uses made by Google of copyrighted books were fair uses,

5 protected by § 107. Authors Guild, 954 F. Supp. 2d at 284. Upon consideration of the four

6 statutory factors of § 107, the district court found that Google’s uses were transformative, that its

7 display of copyrighted material was properly limited, and that the Google Books program did not

8 impermissibly serve as a market substitute for the original works. Id. at 290. The court entered

9 judgment initially on November 27, 2013, followed by an amended judgment on December 10,

10 2013, dismissing Plaintiffs’ claims with prejudice. Plaintiffs filed timely notice of appeal.

11

DISCUSSION10

12

I. The Law of Fair Use

13

The ultimate goal of copyright is to expand public knowledge and understanding, which

14 copyright seeks to achieve by giving potential creators exclusive control over copying of their

15 works, thus giving them a financial incentive to create informative, intellectually enriching

16 works for public consumption. This objective is clearly reflected in the Constitution’s

17 empowerment of Congress “To promote the Progress of Science . . . by securing for limited

10 The district court had subject-matter jurisdiction over this federal copyright action pursuant to 28 U.S.C. §§ 1331 and 1338(a). This court has jurisdiction over the appeal from the final decision of the district court pursuant to 28 U.S.C. § 1291. We review an order granting summary judgment de novo, drawing all reasonable factual inferences in favor of the non-moving party. Ment Bros. Iron Works Co., Inc. v. Interstate Fire & Cas. Co., 702 F.3d 118, 120–21 (2d Cir. 2012).

12

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13-4829-cv Authors Guild v. Google, Inc.
1 Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, § 8,
2 cl. 8) (emphasis added).11 Thus, while authors are undoubtedly important intended beneficiaries

3 of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge

4 copyright seeks to advance by providing rewards for authorship.

5

For nearly three hundred years, since shortly after the birth of copyright in England in

6 1710,12 courts have recognized that, in certain circumstances, giving authors absolute control

7 over all copying from their works would tend in some circumstances to limit, rather than expand,

8 public knowledge. In the words of Lord Ellenborough, “[W]hile I shall think myself bound to

9 secure every man in the enjoyment of his copy-right, one must not put manacles upon science.”

10 Cary v. Kearsley, 170 Eng. Rep. 679, 681, 4 Esp. 168, 170 (1802). Courts thus developed the

11 doctrine, eventually named fair use, which permits unauthorized copying in some circumstances,

12 so as to further “copyright’s very purpose, ‘[t]o promote the Progress of Science and useful

13 Arts.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art.

14 I, § 8, cl. 8). Although well established in the common law development of copyright, fair use

15 was not recognized in the terms of our statute until the adoption of § 107 in the Copyright Act of

16 1976. 17 U.S.C. §§ 101 et seq.

11 A similar message is reflected in England’s original copyright enactment, “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors,” which explains as its purpose “the Encouragement of Learned Men to Compose and Write useful Books.” Statute of Anne [1710]. 12 Id.
13

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13-4829-cv Authors Guild v. Google, Inc.

1

Section 107, in its present form,13 provides:

2

[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news

3

reporting, teaching (including multiple copies for classroom use), scholarship, or research,

4

is not an infringement of copyright. In determining whether the use made of a work in any

5

particular case is a fair use the factors to be considered shall include—

6

(1) the purpose and character of the use, including whether such use is of a

7

commercial nature or is for nonprofit educational purposes;

8

(2) the nature of the copyrighted work;

9

(3) the amount and substantiality of the portion used in relation to the copyrighted

10

work as a whole; and

11

(4) the effect of the use upon the potential market for or value of the copyrighted

12

work.

13

The fact that a work is unpublished shall not itself bar a finding of fair use if such

14

finding is made upon consideration of all the above factors.

15

16 17 U.S.C. § 107. As the Supreme Court has designated fair use an affirmative defense, see

17 Campbell, 510 U.S. at 590, the party asserting fair use bears the burden of proof, Am. Geophysical

18 Union v. Texaco Inc., 60 F.3d 913, 918 (2d Cir. 1994).

19

The statute’s wording, derived from a brief observation of Justice Joseph Story in Folsom

20 v. Marsh,14 does not furnish standards for recognition of fair use. Its instruction to consider the

21 “purpose and character” of the secondary use and the “nature” of the copyrighted work does not

22 explain what types of “purpose and character” or “nature” favor a finding of fair use and which do

23 not. In fact, as the Supreme Court observed in Campbell, the House Report makes clear that, in

13 The last sentence was added in 1992, rejecting this court’s assertion in Salinger v. Random House, Inc. that unpublished works “normally enjoy insulation from fair use copying.” 811 F.2d 90, 95 (2d Cir. 1987). See Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.
14 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (“[W]e must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”).
14

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13-4829-cv Authors Guild v. Google, Inc.
1 passing the statute, Congress had no intention of normatively dictating fair use policy. The purpose

2 of the enactment was to give recognition in the statute itself to such an important part of copyright

3 law developed by the courts through the common law process. “Congress meant § 107 ‘to restate

4 the present judicial doctrine of fair use, not to change, narrow, or enlarge it an any way,’ and

5 intended that courts continue the common-law tradition of fair use adjudication.” Campbell, 510

6 U.S. at 577 (quoting H.R. Rep. No. 94-1476, at 66 (1976), S. Rep. No. 94-473, at 62 (1975), U.S.

7 Code Cong. & Admin. News 5659, 5679 (1976)). Furthermore, notwithstanding fair use’s long

8 common-law history, not until the Campbell ruling in 1994 did courts undertake to explain the

9 standards for finding fair use.

10

The Campbell Court undertook a comprehensive analysis of fair use’s requirements,

11 discussing every segment of § 107. Beginning with the examples of purposes set forth in the

12 statute’s preamble, the Court made clear that they are “illustrative and not limitative” and “provide

13 only general guidance about the sorts of copying that courts and Congress most commonly ha[ve]

14 found to be fair uses.” 510 U.S. at 577-578 (internal quotations and citations omitted). The statute

15 “calls for case-by-case analysis” and “is not to be simplified with bright-line rules.” Id. at 577.

16 Section 107’s four factors are not to “be treated in isolation, one from another. All are to be

17 explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578. Each

18 factor thus stands as part of a multifaceted assessment of the crucial question: how to define the

19 boundary limit of the original author’s exclusive rights in order to best serve the overall objectives

20 of the copyright law to expand public learning while protecting the incentives of authors to create

21 for the public good.

15

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13-4829-cv Authors Guild v. Google, Inc.

1

At the same time, the Supreme Court has made clear that some of the statute’s four listed

2 factors are more significant than others. The Court observed in Harper & Row Publishers, Inc. v.

3 Nation Enterprises that the fourth factor, which assesses the harm the secondary use can cause to

4 the market for, or the value of, the copyright for the original, “is undoubtedly the single most

5 important element of fair use.” 471 U.S. 539, 566 (1985) (citing MELVILLE B. NIMMER, 3 NIMMER

6 ON COPYRIGHT § 13.05[A], at 13–76 (1984)). This is consistent with the fact that the copyright is a

7 commercial right, intended to protect the ability of authors to profit from the exclusive right to

8 merchandise their own work.

9

In Campbell, the Court stressed also the importance of the first factor, the “purpose and

10 character of the secondary use.” 17 U.S.C. § 107(1). The more the appropriator is using the copied

11 material for new, transformative purposes, the more it serves copyright’s goal of enriching public

12 knowledge and the less likely it is that the appropriation will serve as a substitute for the original

13 or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work.

14 510 U.S. at 591 (noting that, when the secondary use is transformative, “market substitution is at

15 least less certain, and market harm may not be so readily inferred.”).

16

With this background, we proceed to discuss each of the statutory factors, as illuminated

17 by Campbell and subsequent case law, in relation to the issues here in dispute.

18

II. The Search and Snippet View Functions

19

A. Factor One

20

(1) Transformative purpose. Campbell’s explanation of the first factor’s inquiry into the

21 “purpose and character” of the secondary use focuses on whether the new work, “in Justice Story’s

16

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13-4829-cv Authors Guild v. Google, Inc.
1 words, . . . merely ‘supersede[s] the objects’ of the original creation, . . . or instead adds something

2 new, with a further purpose . . . . [I]t asks, in other words, whether and to what extent the new work

3 is ‘transformative.’” 510 U.S. at 578-579 (citations omitted). While recognizing that a

4 transformative use is “not absolutely necessary for a finding of fair use,” the opinion further

5 explains that the “goal of copyright, to promote science and the arts, is generally furthered by the

6 creation of transformative works” and that “[s]uch works thus lie at the heart of the fair use

7 doctrine’s guarantee of breathing space within the confines of copyright.” Id. at 579. In other

8 words, transformative uses tend to favor a fair use finding because a transformative use is one that

9 communicates something new and different from the original or expands its utility, thus serving

10 copyright’s overall objective of contributing to public knowledge.

11

The word “transformative” cannot be taken too literally as a sufficient key to

12 understanding the elements of fair use. It is rather a suggestive symbol for a complex thought, and

13 does not mean that any and all changes made to an author’s original text will necessarily support a

14 finding of fair use. The Supreme Court’s discussion in Campbell gave important guidance on

15 assessing when a transformative use tends to support a conclusion of fair use. The defendant in that

16 case defended on the ground that its work was a parody of the original and that parody is a

17 time-honored category of fair use. Explaining why parody makes a stronger, or in any event more

18 obvious, claim of fair use than satire, the Court stated,

19

[T]he heart of any parodist’s claim to quote from existing material . . . is the use of . . . a

20

prior author’s composition to . . .comment[] on that author’s works. . . . If, on the contrary,

21

the commentary has no critical bearing on the substance or style of the original

22

composition, which the alleged infringer merely uses to get attention or to avoid the

23

drudgery in working up something fresh, the claim to fairness in borrowing from another’s

24

work diminishes accordingly (if it does not vanish). . . . Parody needs to mimic an original

17

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13-4829-cv Authors Guild v. Google, Inc.

1

to make its point, and so has some claim to use the creation of its victim’s . . . imagination,

2

whereas satire can stand on its own two feet and so requires justification for the very act of

3

borrowing.

4

5 Id. at 580-81 (emphasis added). In other words, the would-be fair user of another’s work must have

6 justification for the taking. A secondary author is not necessarily at liberty to make wholesale

7 takings of the original author’s expression merely because of how well the original author’s

8 expression would convey the secondary author’s different message. Among the best recognized

9 justifications for copying from another’s work is to provide comment on it or criticism of it. A

10 taking from another author’s work for the purpose of making points that have no bearing on the

11 original may well be fair use, but the taker would need to show a justification. This part of the

12 Supreme Court’s discussion is significant in assessing Google’s claim of fair use because, as

13 discussed extensively below, Google’s claim of transformative purpose for copying from the

14 works of others is to provide otherwise unavailable information about the originals.

15

A further complication that can result from oversimplified reliance on whether the copying

16 involves transformation is that the word “transform” also plays a role in defining “derivative

17 works,” over which the original rights holder retains exclusive control. Section 106 of the Act

18 specifies the “exclusive right[]” of the copyright owner “(2) to prepare derivative works based

19 upon the copyrighted work.” See 17 U.S.C. § 106. The statute defines derivative works largely by

20 example, rather than explanation. The examples include “translation, musical arrangement,

21 dramatization, fictionalization, motion picture version, sound recording, art reproduction,

22 abridgement, condensation,” to which list the statute adds “any other form in which a work may

18

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13-4829-cv Authors Guild v. Google, Inc.
1 be . . . transformed.” 17 U.S.C. § 101 (emphasis added).15 As we noted in Authors Guild, Inc. v.
2 HathiTrust, “[p]aradigmatic examples of derivative works include the translation of a novel into
3 another language, the adaptation of a novel into a movie or play, or the recasting of a novel as an
4 e-book or an audiobook.” 755 F.3d 87, 95 (2d Cir. 2014). While such changes can be described as
5 transformations, they do not involve the kind of transformative purpose that favors a fair use
6 finding. The statutory definition suggests that derivative works generally involve transformations
7 in the nature of changes of form. 17 U.S.C. § 101. By contrast, copying from an original for the
8 purpose of criticism or commentary on the original16 or provision of information about it,17
15 The full text of the statutory definition is as follows: “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” 17 U.S.C. § 101.
16 See, e.g., Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269-1271 (11th Cir. 2001) (copying from original to support parodic criticism of original’s moral code justified as transformative fair use purpose).
17 See, e.g., HathiTrust, 755 F.3d at 97-98 (justifying as transformative fair use purpose the digital copying of original for purpose of permitting searchers to determine whether its text employs particular words); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 638-640 (4th Cir. 2009) (justifying as transformative fair use purpose the complete digital copying of a manuscript to determine whether the original included matter plagiarized from other works); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (justifying as transformative fair use purpose the use of a digital, thumbnail copy of the original to provide an Internet pathway to the original); Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-819 (9th Cir. 2003) (same); Bond v. Blum, 317 F.3d 385 (4th Cir. 2003) (justifying as fair use purpose the copying of author’s original unpublished autobiographical manuscript for the purpose of showing that he murdered his father and was an unfit custodian of his children); Nuñez v. Carribean Int’l News Corp., 235 F.3d 18, 21-23 (1st Cir. 2000) (justifying as transformative fair
19

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13-4829-cv Authors Guild v. Google, Inc.
1 tends most clearly to satisfy Campbell’s notion of the “transformative” purpose involved in the
2 analysis of Factor One.18

3

With these considerations in mind, we first consider whether Google’s search and snippet

4 views functions satisfy the first fair use factor with respect to Plaintiffs’ rights in their books.

use purpose a newspaper’s copying of a photo of winner of beauty pageant in a revealing pose for the purpose of informing the public of the reason the winner’s title was withdrawn).
18 The Seventh Circuit takes the position that the kind of secondary use that favors satisfaction of the fair use test is better described as a “complementary” use, referring to how a hammer and nail complement one another in that together they achieve results that neither can accomplish on its own. Ty, Inc. v Publ’ns Int’l, Ltd., 292 F.3d 512, 517–518 (7th Cir. 2002); see also Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014), cert. denied, 135 S. Ct. 1555 (2015); WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 153–154 (2003). We do not find the term “complementary” particularly helpful in explaining fair use. The term would encompass changes of form that are generally understood to produce derivative works, rather than fair uses, and, at the same time, would fail to encompass copying for purposes that are generally and properly viewed as creating fair uses. When a novel is converted into film, for example, the original novel and the film ideally complement one another in that each contributes to achieving results that neither can accomplish on its own. The invention of the original author combines with the cinematographic interpretive skills of the filmmaker to produce something that neither could have produced independently. Nonetheless, at least when the intention of the film is to make a “motion picture version” of the novel, 17 U.S.C. § 101, without undertaking to parody it or to comment on it, the film is generally understood to be a derivative work, which under § 106, falls within the exclusive rights of the copyright owner. Although they complement one another, the film is not a fair use. At the same time, when a secondary work quotes an original for the purpose of parodying it, or discrediting it by exposing its inaccuracies, illogic, or dishonesty, such an undertaking is not within the exclusive prerogatives of the rights holder; it produces a fair use. Yet, when the purpose of the second is essentially to destroy the first, the two are not comfortably described as complementaries that combine to produce together something that neither could have produced independently of the other. We recognize, as just noted above, that the word “transformative,” if interpreted too broadly, can also seem to authorize copying that should fall within the scope of an author’s derivative rights. Attempts to find a circumspect shorthand for a complex concept are best understood as suggestive of a general direction, rather than as definitive descriptions.
20

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13-4829-cv Authors Guild v. Google, Inc.
1 (The question whether these functions might infringe upon Plaintiffs’ derivative rights is

2 discussed in the next Part.)

3

(2) Search Function. We have no difficulty concluding that Google’s making of a digital

4 copy of Plaintiffs’ books for the purpose of enabling a search for identification of books containing

5 a term of interest to the searcher involves a highly transformative purpose, in the sense intended by

6 Campbell. Our court’s exemplary discussion in HathiTrust informs our ruling. That case involved

7 a dispute that is closely related, although not identical, to this one. Authors brought claims of

8 copyright infringement against HathiTrust, an entity formed by libraries participating in the

9 Google Library Project to pool the digital copies of their books created for them by Google. The

10 suit challenged various usages HathiTrust made of the digital copies. Among the challenged uses

11 was HathiTrust’s offer to its patrons of “full-text searches,” which, very much like the search

12 offered by Google Books to Internet users, permitted patrons of the libraries to locate in which of

13 the digitized books specific words or phrases appeared. 755 F.3d at 98. (HathiTrust’s search

14 facility did not include the snippet view function, or any other display of text.) We concluded

15 that both the making of the digital copies and the use of those copies to offer the search tool were

16 fair uses. Id. at 105.

17

Notwithstanding that the libraries had downloaded and stored complete digital copies of

18 entire books, we noted that such copying was essential to permit searchers to identify and locate

19 the books in which words or phrases of interest to them appeared. Id. at 97. We concluded “that

20 the creation of a full-text searchable database is a quintessentially transformative use . . . [as] the

21 result of a word search is different in purpose, character, expression, meaning, and message from

21

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13-4829-cv Authors Guild v. Google, Inc.
1 the page (and the book) from which it is drawn.” Id. We cited A.V. ex rel. Vanderhye v.

2 iParadigms, LLC, 562 F.3d 630, 639-40 (4th Cir. 2009), Perfect 10, Inc. v. Amazon.com, Inc., 508

3 F.3d 1146, 1165 (9th Cir. 2007), and Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir. 2003)

4 as examples of cases in which courts had similarly found the creation of complete digital copies

5 of copyrighted works to be transformative fair uses when the copies “served a different function

6 from the original.” HathiTrust, 755 F.3d at 97.

7

As with HathiTrust (and iParadigms), the purpose of Google’s copying of the original

8 copyrighted books is to make available significant information about those books, permitting a

9 searcher to identify those that contain a word or term of interest, as well as those that do not

10 include reference to it. In addition, through the ngrams tool, Google allows readers to learn the

11 frequency of usage of selected words in the aggregate corpus of published books in different

12 historical periods. We have no doubt that the purpose of this copying is the sort of transformative

13 purpose described in Campbell as strongly favoring satisfaction of the first factor.

14

We recognize that our case differs from HathiTrust in two potentially significant

15 respects. First, HathiTrust did not “display to the user any text from the underlying copyrighted

16 work,” 755 F.3d at 91, whereas Google Books provides the searcher with snippets containing the

17 word that is the subject of the search. Second, HathiTrust was a nonprofit educational entity,

18 while Google is a profit-motivated commercial corporation. We discuss those differences below.

19

(3) Snippet View. Plaintiffs correctly point out that this case is significantly different

20 from HathiTrust in that the Google Books search function allows searchers to read snippets from

21 the book searched, whereas HathiTrust did not allow searchers to view any part of the book.

22

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13-4829-cv Authors Guild v. Google, Inc.
1 Snippet view adds important value to the basic transformative search function, which tells only

2 whether and how often the searched term appears in the book. Merely knowing that a term of

3 interest appears in a book does not necessarily tell the searcher whether she needs to obtain the

4 book, because it does not reveal whether the term is discussed in a manner or context falling

5 within the scope of the searcher’s interest. For example, a searcher seeking books that explore

6 Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will

7 nonetheless conclude she can skip that book if the snippets reveal that the book speaks of

8 “Einstein” because that is the name of the author’s cat. In contrast, the snippet will tell the

9 searcher that this is a book she needs to obtain if the snippet shows that the author is engaging

10 with Einstein’s theories.

11

Google’s division of the page into tiny snippets is designed to show the searcher just

12 enough context surrounding the searched term to help her evaluate whether the book falls within

13 the scope of her interest (without revealing so much as to threaten the author’s copyright

14 interests). Snippet view thus adds importantly to the highly transformative purpose of identifying

15 books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use

16 (unless the value of its transformative purpose is overcome by its providing text in a manner that

17 offers a competing substitute for Plaintiffs’ books, which we discuss under factors three and four

18 below).

19

(4) Google’s Commercial Motivation. Plaintiffs also contend that Google’s commercial

20 motivation weighs in their favor under the first factor. Google’s commercial motivation

21 distinguishes this case from HathiTrust, as the defendant in that case was a non-profit entity

23

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13-4829-cv Authors Guild v. Google, Inc.
1 founded by, and acting as the representative of, libraries. Although Google has no revenues

2 flowing directly from its operation of the Google Books functions, Plaintiffs stress that Google is

3 profit-motivated and seeks to use its dominance of book search to fortify its overall dominance

4 of the Internet search market, and that thereby Google indirectly reaps profits from the Google

5 Books functions.

6

For these arguments Plaintiffs rely primarily on two sources. First is Congress’s

7 specification in spelling out the first fair use factor in the text of § 107 that consideration of the

8 “purpose and character of the [secondary] use” should “include[e] whether such use is of a

9 commercial nature or is for nonprofit educational purposes.” Second is the Supreme Court’s

10 assertion in dictum in Sony Corporation of America v. Universal City Studios, Inc, that “every

11 commercial use of copyrighted material is presumptively . . . unfair.” 464 U.S. 417, 451 (1984).

12 If that were the extent of precedential authority on the relevance of commercial motivation,

13 Plaintiffs’ arguments would muster impressive support. However, while the commercial

14 motivation of the secondary use can undoubtedly weigh against a finding of fair use in some

15 circumstances, the Supreme Court, our court, and others have eventually recognized that the

16 Sony dictum was enormously overstated.19

19 Campbell, 510 U.S. at 583–84; Cariou v. Prince, 714 F.3d 694, 708 (2d Cir. 2013) cert. denied, 134 S. Ct. 618 (2013); Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 141-42 (2d Cir. 1998); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 819 (9th Cir. 2003); see also Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1172 (9th Cir. 2012) (noting that Campbell “debunked the notion that Sony called for a ‘hard evidentiary presumption’ that commercial use is presumptively unfair.”)
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13-4829-cv Authors Guild v. Google, Inc.

1

The Sixth Circuit took the Sony dictum at its word in Acuff-Rose Music, Inc. v. Campbell,

2 concluding that, because the defendant rap music group’s spoof of the plaintiff’s ballad was done

3 for profit, it could not be fair use. 972 F.2d 1429, 1436-1437 (6th Cir. 1992). The Supreme Court

4 reversed on this very point, observing that “Congress could not have intended” such a broad

5 presumption against commercial fair uses, as “nearly all of the illustrative uses listed in the

6 preamble paragraph of § 107 . . . are generally conducted for profit in this country.” Campbell,

7 510 U.S. at 584 (internal quotation marks and citations omitted). The Court emphasized

8 Congress’s statement in the House Report to the effect that the commercial or nonprofit character

9 of a work is “not conclusive” but merely “a fact to be ‘weighed along with other[s] in fair use

10 decisions.” Id. at 585 (quoting H.R. Rep. No. 94-1476, at 66 (1976)). In explaining the first fair

11 use factor, the Court clarified that “the more transformative the [secondary] work, the less will

12 be the significance of other factors, like commercialism, that may weigh against a finding of fair

13 use.” Id. at 579.

14

Our court has since repeatedly rejected the contention that commercial motivation should

15 outweigh a convincing transformative purpose and absence of significant substitutive

16 competition with the original. See Cariou v. Prince, 714 F.3d 694, 708 (2d Cir. 2013), cert.

17 denied, 134 S. Ct. 618 (2013) (“The commercial/nonprofit dichotomy concerns the unfairness that

18 arises when a secondary user makes unauthorized use of copyrighted material to capture

19 significant revenues as a direct consequence of copying the original work. This factor must be

20 applied with caution because, as the Supreme Court has recognized, Congress could not have

21 intended a rule that commercial uses are presumptively unfair. Instead, the more transformative

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13-4829-cv Authors Guild v. Google, Inc.
1 the new work, the less will be the significance of other factors, like commercialism, that may

2 weigh against a finding of fair use.”) (internal quotation marks, citations, and alterations omitted);

3 Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 141-42 (2d Cir. 1998) (“We . . . do

4 not give much weight to the fact that the secondary use was for commercial gain. The more critical

5 inquiry under the first factor and in fair use analysis generally is whether the allegedly infringing

6 work merely supersedes the original work or instead adds something new, with a further purpose

7 or different character, altering the first with new meaning or message, in other words whether and

8 to what extent the new work is transformative.”) (internal quotation marks, citations, and

9 alterations omitted).

10

While we recognize that in some circumstances, a commercial motivation on the part of

11 the secondary user will weigh against her, especially, as the Supreme Court suggested, when a

12 persuasive transformative purpose is lacking, Campbell, 510 U.S. at 579, we see no reason in this

13 case why Google’s overall profit motivation should prevail as a reason for denying fair use over

14 its highly convincing transformative purpose, together with the absence of significant

15 substitutive competition, as reasons for granting fair use. Many of the most universally accepted

16 forms of fair use, such as news reporting and commentary, quotation in historical or analytic

17 books, reviews of books, and performances, as well as parody, are all normally done 18 commercially for profit.20

20 Just as there is no reason for presuming that a commercial use is not a fair use, which would defeat the most widely accepted and logically justified areas of fair use, there is likewise no reason to presume categorically that a nonprofit educational purpose should qualify as a fair use. Authors who write for educational purposes, and publishers who invest substantial funds to
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13-4829-cv Authors Guild v. Google, Inc.

1

B. Factor Two

2

The second fair use factor directs consideration of the “nature of the copyrighted work.” While

3 the “transformative purpose” inquiry discussed above is conventionally treated as a part of first

4 factor analysis, it inevitably involves the second factor as well. One cannot assess whether the

5 copying work has an objective that differs from the original without considering both works, and

6 their respective objectives.

7

The second factor has rarely played a significant role in the determination of a fair use

8 dispute. See WILLIAM F. PATRY, PATRY ON FAIR USE § 4.1 (2015). The Supreme Court in Harper &

9 Row made a passing observation in dictum that, “[t]he law generally recognizes a greater need to

10 disseminate factual works than works of fiction or fantasy.” 471 U.S. 539, 563 (1985). Courts have

11 sometimes speculated that this might mean that a finding of fair use is more favored when the

12 copying is of factual works than when copying is from works of fiction. However, while the

13 copyright does not protect facts or ideas set forth in a work, it does protect that author’s manner of

14 expressing those facts and ideas. At least unless a persuasive fair use justification is involved,

15 authors of factual works, like authors of fiction, should be entitled to copyright protection of their

16 protected expression. The mere fact that the original is a factual work therefore should not imply

17 that others may freely copy it. Those who report the news undoubtedly create factual works. It

publish educational materials, would lose the ability to earn revenues if users were permitted to copy the materials freely merely because such copying was in the service of a nonprofit educational mission. The publication of educational materials would be substantially curtailed if such publications could be freely copied for nonprofit educational purposes.
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13-4829-cv Authors Guild v. Google, Inc.
1 cannot seriously be argued that, for that reason, others may freely copy and re-disseminate news

2 reports.21

3

In considering the second factor in HathiTrust, we concluded that it was “not dispositive,”

4 755 F.3d at 98, commenting that courts have hardly ever found that the second factor in isolation

5 played a large role in explaining a fair use decision. The same is true here. While each of the three

6 Plaintiffs’ books in this case is factual, we do not consider that as a boost to Google’s claim of fair

7 use. If one (or all) of the plaintiff works were fiction, we do not think that would change in any way

8 our appraisal. Nothing in this case influences us one way or the other with respect to the second

9 factor considered in isolation. To the extent that the “nature” of the original copyrighted work

10 necessarily combines with the “purpose and character” of the secondary work to permit

11 assessment of whether the secondary work uses the original in a “transformative” manner, as the

12 term is used in Campbell, the second factor favors fair use not because Plaintiffs’ works are

13 factual, but because the secondary use transformatively provides valuable information about the

14 original, rather than replicating protected expression in a manner that provides a meaningful

15 substitute for the original.

16

21 We think it unlikely that the Supreme Court meant in its concise dictum that secondary authors are at liberty to copy extensively from the protected expression of the original author merely because the material is factual. What the Harper & Row dictum may well have meant is that, because in the case of factual writings, there is often occasion to test the accuracy of, to rely on, or to repeat their factual propositions, and such testing and reliance may reasonably require quotation (lest a change of expression unwittingly alter the facts), factual works often present well justified fair uses, even if the mere fact that the work is factual does not necessarily justify copying of its protected expression.
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13-4829-cv Authors Guild v. Google, Inc.

1

C. Factor Three

2

The third statutory factor instructs us to consider “the amount and substantiality of the

3 portion used in relation to the copyrighted work as a whole.” The clear implication of the third

4 factor is that a finding of fair use is more likely when small amounts, or less important passages,

5 are copied than when the copying is extensive, or encompasses the most important parts of the 6 original.22 The obvious reason for this lies in the relationship between the third and the fourth

7 factors. The larger the amount, or the more important the part, of the original that is copied, the

8 greater the likelihood that the secondary work might serve as an effectively competing substitute

9 for the original, and might therefore diminish the original rights holder’s sales and profits.

10

(1) Search Function. The Google Books program has made a digital copy of the entirety of

11 each of Plaintiffs’ books. Notwithstanding the reasonable implication of Factor Three that fair use

12 is more likely to be favored by the copying of smaller, rather than larger, portions of the original, 13 courts have rejected any categorical rule that a copying of the entirety cannot be a fair use.23

14 Complete unchanged copying has repeatedly been found justified as fair use when the copying was

15 reasonably appropriate to achieve the copier’s transformative purpose and was done in such a

22 See Harper & Row, 471 U.S. at 564-565 (rejecting fair use defense for copying of only about 300 words, where the portion copied was deemed “the heart of the book”). 23 Some copyright scholars have argued this position. See, e.g., Paul Goldstein, Copyright’s Commons, 29 COLUM. J.L. & ARTS 1, 5-6 (2005).
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1 manner that it did not offer a competing substitute for the original.24 The Supreme Court said in

2 Campbell that “the extent of permissible copying varies with the purpose and character of the use”

3 and characterized the relevant questions as whether “the amount and substantiality of the portion

4 used . . . are reasonable in relation to the purpose of the copying,” Campbell, 510 U.S. at 586-587,

5 noting that the answer to that question will be affected by “the degree to which the [copying work]

6 may serve as a market substitute for the original or potentially licensed derivatives,” id. at 587-588

7 (finding that, in the case of a parodic song, “how much . . . is reasonable will depend, say, on the

8 extent to which the song’s overriding purpose and character is to parody the original or, in contrast,

9 the likelihood that the parody may serve as a market substitute for the original”).

10

In HathiTrust, our court concluded in its discussion of the third factor that “[b]ecause it

11 was reasonably necessary for the [HathiTrust Digital Library] to make use of the entirety of the

12 works in order to enable the full-text search function, we do not believe the copying was

13 excessive.” 755 F.3d at 98. As with HathiTrust, not only is the copying of the totality of the

14 original reasonably appropriate to Google’s transformative purpose, it is literally necessary to

15 achieve that purpose. If Google copied less than the totality of the originals, its search function

16 could not advise searchers reliably whether their searched term appears in a book (or how many

17 times).

18

While Google makes an unauthorized digital copy of the entire book, it does not reveal that

19 digital copy to the public. The copy is made to enable the search functions to reveal limited,

24 See cases cited supra note 17; see also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006) (“[C]opying the entirety of a work is sometimes necessary to make a fair use of the [work].”).

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13-4829-cv Authors Guild v. Google, Inc.
1 important information about the books. With respect to the search function, Google satisfies the

2 third factor test, as illuminated by the Supreme Court in Campbell.

3

(2) Snippet View. Google’s provision of snippet view makes our third factor inquiry

4 different from that inquiry in HathiTrust. What matters in such cases is not so much “the amount

5 and substantiality of the portion used” in making a copy, but rather the amount and substantiality

6 of what is thereby made accessible to a public for which it may serve as a competing substitute. In

7 HathiTrust, notwithstanding the defendant’s full-text copying, the search function revealed

8 virtually nothing of the text of the originals to the public. Here, through the snippet view, more is

9 revealed to searchers than in HathiTrust.

10

Without doubt, enabling searchers to see portions of the copied texts could have

11 determinative effect on the fair use analysis. The larger the quantity of the copyrighted text the

12 searcher can see and the more control the searcher can exercise over what part of the text she

13 sees, the greater the likelihood that those revelations could serve her as an effective, free

14 substitute for the purchase of the plaintiff’s book. We nonetheless conclude that, at least as

15 presently structured by Google, the snippet view does not reveal matter that offers the

16 marketplace a significantly competing substitute for the copyrighted work.

17

Google has constructed the snippet feature in a manner that substantially protects against

18 its serving as an effectively competing substitute for Plaintiffs’ books. In the Background section

19 of this opinion, we describe a variety of limitations Google imposes on the snippet function.

20 These include the small size of the snippets (normally one eighth of a page), the blacklisting of

21 one snippet per page and of one page in every ten, the fact that no more than three snippets are

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1 shown—and no more than one per page—for each term searched, and the fact that the same

2 snippets are shown for a searched term no matter how many times, or from how many different

3 computers, the term is searched. In addition, Google does not provide snippet view for types of

4 books, such as dictionaries and cookbooks, for which viewing a small segment is likely to satisfy

5 the searcher’s need. The result of these restrictions is, so far as the record demonstrates, that a

6 searcher cannot succeed, even after long extended effort to multiply what can be revealed, in

7 revealing through a snippet search what could usefully serve as a competing substitute for the

8 original.

9

The blacklisting, which permanently blocks about 22% of a book’s text from snippet

10 view, is by no means the most important of the obstacles Google has designed. While it is true

11 that the blacklisting of 22% leaves 78% of a book theoretically accessible to a searcher, it does

12 not follow that any large part of that 78% is in fact accessible. The other restrictions built into the

13 program work together to ensure that, even after protracted effort over a substantial period of

14 time, only small and randomly scattered portions of a book will be accessible. In an effort to

15 show what large portions of text searchers can read through persistently augmented snippet

16 searches, Plaintiffs’ counsel employed researchers over a period of weeks to do multiple word

17 searches on Plaintiffs’ books. In no case were they able to access as much as 16% of the text, and

18 the snippets collected were usually not sequential but scattered randomly throughout the book.

19 Because Google’s snippets are arbitrarily and uniformly divided by lines of text, and not by

20 complete sentences, paragraphs, or any measure dictated by content, a searcher would have great

21 difficulty constructing a search so as to provide any extensive information about the book’s use

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13-4829-cv Authors Guild v. Google, Inc.
1 of that term. As snippet view never reveals more than one snippet per page in response to

2 repeated searches for the same term, it is at least difficult, and often impossible, for a searcher to

3 gain access to more than a single snippet’s worth of an extended, continuous discussion of the

4 term.

5

The fact that Plaintiffs’ searchers managed to reveal nearly 16% of the text of Plaintiffs’

6 books overstates the degree to which snippet view can provide a meaningful substitute. At least

7 as important as the percentage of words of a book that are revealed is the manner and order in

8 which they are revealed. Even if the search function revealed 100% of the words of the

9 copyrighted book, this would be of little substitutive value if the words were revealed in

10 alphabetical order, or any order other than the order they follow in the original book. It cannot be

11 said that a revelation is “substantial” in the sense intended by the statute’s third factor if the

12 revelation is in a form that communicates little of the sense of the original. The fragmentary and

13 scattered nature of the snippets revealed, even after a determined, assiduous, time-consuming

14 search, results in a revelation that is not “substantial,” even if it includes an aggregate 16% of the

15 text of the book. If snippet view could be used to reveal a coherent block amounting to 16% of a

16 book, that would raise a very different question beyond the scope of our inquiry.

17

D. Factor Four

18

The fourth fair use factor, “the effect of the [copying] use upon the potential market for

19 or value of the copyrighted work,” focuses on whether the copy brings to the marketplace a

20 competing substitute for the original, or its derivative, so as to deprive the rights holder of

21 significant revenues because of the likelihood that potential purchasers may opt to acquire the

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13-4829-cv Authors Guild v. Google, Inc.
1 copy in preference to the original. Because copyright is a commercial doctrine whose objective is

2 to stimulate creativity among potential authors by enabling them to earn money from their

3 creations, the fourth factor is of great importance in making a fair use assessment. See Harper &

4 Row, 471 U.S. at 566 (describing the fourth factor as “undoubtedly the single most important

5 element of fair use”).

6

Campbell stressed the close linkage between the first and fourth factors, in that the more

7 the copying is done to achieve a purpose that differs from the purpose of the original, the less

8 likely it is that the copy will serve as a satisfactory substitute for the original. 510 U.S. at 591.

9 Consistent with that observation, the HathiTrust court found that the fourth factor favored the

10 defendant and supported a finding of fair use because the ability to search the text of the book to

11 determine whether it includes selected words “does not serve as a substitute for the books that are

12 being searched.” 755 F.3d at 100.

13

However, Campbell’s observation as to the likelihood of a secondary use serving as an

14 effective substitute goes only so far. Even if the purpose of the copying is for a valuably

15 transformative purpose, such copying might nonetheless harm the value of the copyrighted

16 original if done in a manner that results in widespread revelation of sufficiently significant

17 portions of the original as to make available a significantly competing substitute. The question

18 for us is whether snippet view, notwithstanding its transformative purpose, does that. We

19 conclude that, at least as snippet view is presently constructed, it does not.

20

Especially in view of the fact that the normal purchase price of a book is relatively low in

21 relation to the cost of manpower needed to secure an arbitrary assortment of randomly scattered

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1 snippets, we conclude that the snippet function does not give searchers access to effectively

2 competing substitutes. Snippet view, at best and after a large commitment of manpower,

3 produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a

4 book. This does not threaten the rights holders with any significant harm to the value of their

5 copyrights or diminish their harvest of copyright revenue.

6

We recognize that the snippet function can cause some loss of sales. There are surely

7 instances in which a searcher’s need for access to a text will be satisfied by the snippet view,

8 resulting in either the loss of a sale to that searcher, or reduction of demand on libraries for that

9 title, which might have resulted in libraries purchasing additional copies. But the possibility, or

10 even the probability or certainty, of some loss of sales does not suffice to make the copy an

11 effectively competing substitute that would tilt the weighty fourth factor in favor of the rights

12 holder in the original. There must be a meaningful or significant effect “upon the potential

13 market for or value of the copyrighted work.” 17 U.S.C. § 107(4).

14

Furthermore, the type of loss of sale envisioned above will generally occur in relation to

15 interests that are not protected by the copyright. A snippet’s capacity to satisfy a searcher’s need

16 for access to a copyrighted book will at times be because the snippet conveys a historical fact

17 that the searcher needs to ascertain. For example, a student writing a paper on Franklin D.

18 Roosevelt might need to learn the year Roosevelt was stricken with polio. By entering

19 “Roosevelt polio” in a Google Books search, the student would be taken to (among numerous

20 sites) a snippet from page 31 of Richard Thayer Goldberg’s The Making of Franklin D.

21 Roosevelt (1981), telling that the polio attack occurred in 1921. This would satisfy the searcher’s

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13-4829-cv Authors Guild v. Google, Inc.
1 need for the book, eliminating any need to purchase it or acquire it from a library. But what the

2 searcher derived from the snippet was a historical fact. Author Goldberg’s copyright does not

3 extend to the facts communicated by his book. It protects only the author’s manner of

4 expression. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980) (“A grant of

5 copyright in a published work secures for its author a limited monopoly over the expression it

6 contains.”) (emphasis added). Google would be entitled, without infringement of Goldberg’s

7 copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the

8 information from Goldberg’s book. The fact that, in the case of the student’s snippet search, the

9 information came embedded in three lines of Goldberg’s writing, which were superfluous to the

10 searcher’s needs, would not change the taking of an unprotected fact into a copyright

11 infringement.

12

Even if the snippet reveals some authorial expression, because of the brevity of a single

13 snippet and the cumbersome, disjointed, and incomplete nature of the aggregation of snippets

14 made available through snippet view, we think it would be a rare case in which the searcher’s

15 interest in the protected aspect of the author’s work would be satisfied by what is available from

16 snippet view, and rarer still—because of the cumbersome, disjointed, and incomplete nature of the

17 aggregation of snippets made available through snippet view—that snippet view could provide a

18 significant substitute for the purchase of the author’s book.

19

Accordingly, considering the four fair use factors in light of the goals of copyright, we

20 conclude that Google’s making of a complete digital copy of Plaintiffs’ works for the purpose of

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13-4829-cv Authors Guild v. Google, Inc.
1 providing the public with its search and snippet view functions (at least as snippet view is

2 presently designed) is a fair use and does not infringe Plaintiffs’ copyrights in their books.

3

III. Derivative Rights in Search and Snippet View

4

Plaintiffs next contend that, under Section 106(2), they have a derivative right in the

5 application of search and snippet view functions to their works, and that Google has usurped

6 their exclusive market for such derivatives.

7

There is no merit to this argument. As explained above, Google does not infringe

8 Plaintiffs’ copyright in their works by making digital copies of them, where the copies are used

9 to enable the public to get information about the works, such as whether, and how often they use

10 specified words or terms (together with peripheral snippets of text, sufficient to show the context

11 in which the word is used but too small to provide a meaningful substitute for the work’s

12 copyrighted expression). The copyright resulting from the Plaintiffs’ authorship of their works

13 does not include an exclusive right to furnish the kind of information about the works that

14 Google’s programs provide to the public. For substantially the same reasons, the copyright that

15 protects Plaintiffs’ works does not include an exclusive derivative right to supply such

16 information through query of a digitized copy.

17

The extension of copyright protection beyond the copying of the work in its original form

18 to cover also the copying of a derivative reflects a clear and logical policy choice. An author’s right

19 to control and profit from the dissemination of her work ought not to be evaded by conversion of

20 the work into a different form. The author of a book written in English should be entitled to control

21 also the dissemination of the same book translated into other languages, or a conversion of the

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13-4829-cv Authors Guild v. Google, Inc.
1 book into a film. The copyright of a composer of a symphony or song should cover also

2 conversions of the piece into scores for different instrumentation, as well as into recordings of

3 performances.

4

This policy is reflected in the statutory definition, which explains the scope of the

5 “derivative” largely by examples—including “a translation, musical arrangement, dramatization,

6 fictionalization, motion picture version, sound recording, art reproduction, abridgement, [or]

7 condensation”—before adding, “or any other form in which a work may be recast, transformed, 8 or adapted.” 17 U.S.C. § 101.25 As noted above, this definition, while imprecise, strongly

9 implies that derivative works over which the author of the original enjoys exclusive rights

10 ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive

11 content, converted into an altered form, such as the conversion of a novel into a film, the

12 translation of a writing into a different language, the reproduction of a painting in the form of a

13 poster or post card, recreation of a cartoon character in the form of a three-dimensional plush toy,

14 adaptation of a musical composition for different instruments, or other similar conversions. If

15 Plaintiffs’ claim were based on Google’s converting their books into a digitized form and making

16 that digitized version accessible to the public, their claim would be strong. But as noted above,

17 Google safeguards from public view the digitized copies it makes and allows access only to the

18 extent of permitting the public to search for the very limited information accessible through the

19 search function and snippet view. The program does not allow access in any substantial way to a

20 book’s expressive content. Nothing in the statutory definition of a derivative work, or of the

25 The complete text is set forth at footnote 15, supra.

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1 logic that underlies it, suggests that the author of an original work enjoys an exclusive derivative

2 right to supply information about that work of the sort communicated by Google’s search

3 functions.

4

Plaintiffs seek to support their derivative claim by a showing that there exist, or would

5 have existed, paid licensing markets in digitized works, such as those provided by the Copyright

6 Clearance Center or the previous, revenue-generating version of the Google Partners Program.

7 Plaintiffs also point to the proposed settlement agreement rejected by the district court in this

8 case, according to which Google would have paid authors for its use of digitized copies of their

9 works. The existence or potential existence of such paid licensing schemes does not support

10 Plaintiffs’ derivative argument. The access to the expressive content of the original that is or

11 would have been provided by the paid licensing arrangements Plaintiffs cite is far more extensive

12 than that which Google’s search and snippet view functions provide. Those arrangements allow

13 or would have allowed public users to read substantial portions of the book. Such access would

14 most likely constitute copyright infringement if not licensed by the rights holders. Accordingly,

15 such arrangements have no bearing on Google’s present programs, which, in a non-infringing

16 manner, allow the public to obtain limited data about the contents of the book, without allowing

17 any substantial reading of its text.

18

Plaintiffs also seek to support their derivative claim by a showing that there is a current

19 unpaid market in licenses for partial viewing of digitized books, such as the licenses that

20 publishers currently grant to the Google Partners program and Amazon’s Search Inside the Book

21 program to display substantial portions of their books. Plaintiffs rely on Infinity Broadcast

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13-4829-cv Authors Guild v. Google, Inc.
1 Corporation v. Kirkwood, 150 F.3d 104 (2nd Cir. 1998) and United States v. American Society of

2 Composers, Authors and Publishers (ASCAP), 599 F. Supp. 2d 415 (S.D.N.Y. 2009) for the

3 proposition that “a secondary use that replaces a comparable service licensed by the copyright

4 holder, even without charge, may cause market harm.” Pls.’ Br. at 51. In the cases cited,

5 however, the purpose of the challenged secondary uses was not the dissemination of information

6 about the original works, which falls outside the protection of the copyright, but was rather the

7 re-transmission, or re-dissemination, of their expressive content. Those precedents do not support

8 the proposition Plaintiffs assert—namely that the availability of licenses for providing

9 unprotected information about a copyrighted work, or supplying unprotected services related to

10 it, gives the copyright holder the right to exclude others from providing such information or

11 services.

12

While the telephone ringtones at issue in the ASCAP case Plaintiffs cite are superficially

13 comparable to Google’s snippets in that both consist of brief segments of the copyrighted work,

14 in a more significant way they are fundamentally different. While it is true that Google’s snippets

15 display a fragment of expressive content, the fragments it displays result from the appearance of

16 the term selected by the searcher in an otherwise arbitrarily selected snippet of text. Unlike the

17 reading experience that the Google Partners program or the Amazon Search Inside the Book

18 program provides, the snippet function does not provide searchers with any meaningful

19 experience of the expressive content of the book. Its purpose is not to communicate copyrighted

20 expression, but rather, by revealing to the searcher a tiny segment surrounding the searched term,

21 to give some minimal contextual information to help the searcher learn whether the book’s use of

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13-4829-cv Authors Guild v. Google, Inc.
1 that term will be of interest to her. The segments taken from copyrighted music as ringtones, in

2 contrast, are selected precisely because they play the most famous, beloved passages of the

3 particular piece—the expressive content that members of the public want to hear when their

4 phone rings. The value of the ringtone to the purchaser is not that it provides information but that

5 it provides a mini-performance of the most appealing segment of the author’s expressive content.

6 There is no reason to think the courts in the cited cases would have come to the same conclusion

7 if the service being provided by the secondary user had been simply to identify to a subscriber in

8 what key a selected composition was written, the year it was written, or the name of the

9 composer. These cases, and the existence of unpaid licensing schemes for substantial viewing of

10 digitized works, do not support Plaintiffs’ derivative works argument.

11

IV. Plaintiffs’ Exposure to Risks of Hacking of Google’s Files

12

Plaintiffs argue that Google’s storage of its digitized copies of Plaintiffs’ books exposes

13 them to the risk that hackers might gain access and make the books widely available, thus

14 destroying the value of their copyrights. Unlike the Plaintiffs’ argument just considered based on

15 a supposed derivative right to supply information about their books, this claim has a reasonable

16 theoretical basis. If, in the course of making an arguable fair use of a copyrighted work, a

17 secondary user unreasonably exposed the rights holder to destruction of the value of the copyright

18 resulting from the public’s opportunity to employ the secondary use as a substitute for purchase of

19 the original (even though this was not the intent of the secondary user), this might well furnish a

20 substantial rebuttal to the secondary user’s claim of fair use. For this reason, the Arriba Soft and

21 Perfect 10 courts, in upholding the secondary user’s claim of fair use, observed that thumbnail

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1 images, which transformatively provided an Internet pathway to the original images, were of

2 sufficiently low resolution that they were not usable as effective substitutes for the originals.

3 Arriba Soft, 336 F.3d 811 at 819; Perfect 10, 508 F.3d at 1165.

4

While Plaintiffs’ claim is theoretically sound, it is not supported by the evidence. In

5 HathiTrust, we faced substantially the same exposure-to-piracy argument. The record in

6 HathiTrust, however, “document[ed] the extensive security measures [the secondary user] ha[d]

7 undertaken to safeguard against the risk of a data breach,” evidence which was unrebutted. 755

8 F.3d at 100. The HathiTrust court thus found “no basis . . . on which to conclude that a security

9 breach is likely to occur, much less one that would result in the public release of the specific

10 copyrighted works belonging to any of the plaintiffs in this case.” Id. at 100-101 (citing Clapper v.

11 Amnesty Int'l USA, 133 S.Ct. 1138, 1143 (2013) (finding that risk of future harm must be

12 “certainly impending,” rather than merely “conjectural” or “hypothetical,” to constitute a

13 cognizable injury-in-fact), and Sony Corp., 464 U.S. at 453–454 (concluding that time-shifting

14 using a Betamax is fair use because the copyright owners’ “prediction that live television or movie

15 audiences will decrease” was merely “speculative”)).

16

Google has documented that Google Books’ digital scans are stored on computers walled

17 off from public Internet access and protected by the same impressive security measures used by

18 Google to guard its own confidential information. As Google notes, Plaintiffs’ own security

19 expert praised these security systems, remarking that “Google is fortunate to have ample

20 resources and top-notch technical talents” that enable it to protect its data. JA 1558, 1570. Nor

21 have Plaintiffs identified any thefts from Google Books (or from the Google Library Project).

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1 Plaintiffs seek to rebut this record by quoting from Google’s July 2012 SEC filing, in which the 2 company made legally required disclosure of its potential market risks.26 Google’s prudent
3 acknowledgment that “security breaches could expose [it] to a risk of loss . . . due to the actions
4 of outside parties, employee error, malfeasance, or otherwise,” however, falls far short of
5 rebutting Google’s demonstration of the effective measures it takes to guard against piratical
6 hacking. Google has made a sufficient showing of protection of its digitized copies of Plaintiffs’
7 works to carry its burden on this aspect of its claim of fair use and thus to shift to Plaintiffs the
8 burden of rebutting Google’s showing. Plaintiffs’ effort to do so falls far short.
9
10
26 The filing includes the following disclosure:
Our products and services involve the storage and transmission of users’ and customers’ proprietary information, and security breaches could expose us to a risk of loss of this information, litigation, and potential liability. Our security measures may be breached due to the actions of outside parties, employee error, malfeasance, or otherwise, and, as a result, an unauthorized party may obtain access to our data or our users’ or customers’ data. Additionally, outside parties may attempt to fraudulently induce employees, users, or customers to disclose sensitive information in order to gain access to our data or our users’ or customers’ data. Any such breach or unauthorized access could result in significant legal and financial exposure, damage to our reputation, and a loss of confidence in the security of our products and services that could potentially have an adverse effect on our business. Because the techniques used to obtain unauthorized access, disable or degrade service, or sabotage systems change frequently and often are not recognized until launched against a target, we may be unable to anticipate these techniques or to implement adequate preventative measures. If an actual or perceived breach of our security occurs, the market perception of the effectiveness of our security measures could be harmed and we could lose users and customers.
JA 562.
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13-4829-cv Authors Guild v. Google, Inc.

1

V. Google’s Distribution of Digital Copies to Participant Libraries

2

Finally, Plaintiffs contend that Google’s distribution to a participating library of a digital

3 copy of Plaintiffs’ books is not a fair use and exposes the Plaintiffs to risks of loss if the library

4 uses its digital copy in an infringing manner, or if the library fails to maintain security over its

5 digital copy with the consequence that the book may become freely available as a result of the

6 incursions of hackers. The claim fails.

7

Although Plaintiffs describe the arrangement between Google and the libraries in more

8 nefarious terms, those arrangements are essentially that each participant library has contracted

9 with Google that Google will create for it a digital copy of each book the library submits to

10 Google, so as to permit the library to use its digital copy in a non-infringing fair use manner. The

11 libraries propose to use their digital copies to enable the very kinds of searches that we here hold

12 to be fair uses in connection with Google’s offer of such searches to the Internet public, and

13 which we held in HathiTrust to be fair uses when offered by HathiTrust to its users. The contract

14 between Google and each of the participating libraries commits the library to use its digital copy

15 only in a manner consistent with the copyright law, and to take precautions to prevent

16 dissemination of their digital copies to the public at large.

17

In these circumstances, Google’s creation for each library of a digital copy of that

18 library’s already owned book in order to permit that library to make fair use through provision of

19 digital searches is not an infringement. If the library had created its own digital copy to enable its

20 provision of fair use digital searches, the making of the digital copy would not have been

21 infringement. Nor does it become an infringement because, instead of making its own digital

44

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13-4829-cv Authors Guild v. Google, Inc.
1 copy, the library contracted with Google that Google would use its expertise and resources to

2 make the digital conversion for the library’s benefit.

3

We recognize the possibility that libraries may use the digital copies Google created for

4 them in an infringing manner. If they do, such libraries may be liable to Plaintiffs for their

5 infringement. It is also possible that, in such a suit, Plaintiffs might adduce evidence that Google

6 was aware of or encouraged such infringing practices, in which case Google could be liable as a

7 contributory infringer. But on the present record, the possibility that libraries may misuse their

8 digital copies is sheer speculation. Nor is there any basis on the present record to hold Google

9 liable as a contributory infringer based on the mere speculative possibility that libraries, in

10 addition to, or instead of, using their digital copies of Plaintiffs’ books in a non-infringing

11 manner, may use them in an infringing manner.

12

We recognize the additional possibility that the libraries might incur liability by negligent

13 mishandling of, and failure to protect, their digital copies, leaving them unreasonably vulnerable

14 to hacking. That also, however, is nothing more than a speculative possibility. There is no basis

15 in the record to impose liability on Google for having lawfully made a digital copy for a

16 participating library so as to enable that library to make non-infringing use of its copy, merely

17 because of the speculative possibility that the library may fail to guard sufficiently against the

18 dangers of hacking, as it is contractually obligated to do. Plaintiffs have failed to establish any

45

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13-4829-cv Authors Guild v. Google, Inc.
1 basis for holding Google liable for its creation of a digital copy of a book submitted to it by a
2 participating library so as to enable that library to make fair use of it.27

3

In sum, we conclude that: (1) Google’s unauthorized digitizing of copyright-protected

4 works, creation of a search functionality, and display of snippets from those works are

5 non-infringing fair uses. The purpose of the copying is highly transformative, the public display of

6 text is limited, and the revelations do not provide a significant market substitute for the protected

7 aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of

8 fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the

9 understanding that the libraries will use the copies in a manner consistent with the copyright law,

10 also does not constitute infringement. Nor, on this record, is Google a contributory infringer.

11

CONCLUSION

12

The judgment of the district court is AFFIRMED.

13

27 We have considered Plaintiffs’ other contentions not directly addressed in this opinion and find them without merit.
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13-4829-cv Authors Guild v. Google, Inc.

APPENDIX A

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13-4829-cv Authors Guild v. Google, Inc.

APPENDIX B

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SDNY CM/ECF Version 6.1.1
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:05-cv-08136-DC

CLOSED,ECF

The Authors Guild et al v. Google Inc. Assigned to: Judge Denny Chin Related Cases: 1:05-cv-08881-DC
1:10-cv-02977-DC Case in other court: USCA 2nd Circuit, 09-02224-cv Cause: 17:101 Copyright Infringement

Date Filed: 09/20/2005 Date Terminated: 11/27/2013 Jury Demand: Both Nature of Suit: 820 Copyright Jurisdiction: Federal Question

Plaintiff The Authors Guild

represented by Edward Henry Rosenthal Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212)-980-0120 Fax: (212)-593-9175 Email: erosenthal@fkks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212)980-0120 x705-4843 Fax: (212) 593-9175 Email: jgoldman@fkks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Boni Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 (610) 822-0200 Fax: (610) 822-0206 Email: mboni@bonizack.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Sanford P. Dumain Milberg LLP (NYC) One Pennsylvania Plaza New York, NY 10119 212-594-5300 Fax: 212-868-1229 Email: sdumain@milberg.com LEAD ATTORNEY
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SDNY CM/ECF Version 6.1L.1EAD ATTORNEY ATTORNEY TO BE NOTICED

Joanne E. Zack Boni & Zack LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 (610)-822-0202 Fax: (610)-822-0206 Email: jzack@bonizack.com ATTORNEY TO BE NOTICED

Plaintiff
Herbert Mitgang TERMINATED: 01/17/2012

Robert J. Larocca Kohn, Swift & Graf, P.C. One South Broad Street Suite 2100 Philadelphia, PA 19107 (215) 238-1700 Fax: (215) 238-1968 Email: rlarocca@kohnswift.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michael J. Boni (See above for address) LEAD ATTORNEY

Sanford P. Dumain (See above for address) LEAD ATTORNEY

Joanne E. Zack (See above for address)

Plaintiff
Betty Miles individually and on behalf of all others similarly situated

Robert J. Larocca (See above for address) PRO HAC VICE
represented by Michael J. Boni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sanford P. Dumain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanne E. Zack (See above for address) ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Robert J. Larocca

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Plaintiff Daniel Hoffman individually and on behalf of all others similarly situated TERMINATED: 01/17/2012

SDNY CM/ECF Version 6.1R.1obert J. Larocca (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michael J. Boni (See above for address) LEAD ATTORNEY
Sanford P. Dumain (See above for address) LEAD ATTORNEY

Joanne E. Zack (See above for address)

Plaintiff
Paul Dickson TERMINATED: 01/17/2012

Robert J. Larocca (See above for address) PRO HAC VICE
represented by Joanne E. Zack (See above for address)

Michael J. Boni (See above for address)

Robert J. Larocca (See above for address) PRO HAC VICE

Plaintiff
Joseph Goulden individually and on behalf of all others similarly situated

Sanford P. Dumain (See above for address)
represented by Joanne E. Zack (See above for address) ATTORNEY TO BE NOTICED

Michael J. Boni (See above for address) ATTORNEY TO BE NOTICED

Robert J. Larocca (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Sanford P. Dumain (See above for address) ATTORNEY TO BE NOTICED

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Association of American Publishers, Inc.

SDNY CM/ECF Version 6.1.1
represented by Jeffrey Paul Cunard Debevoise & Plimpton LLP (DC) 919 Third Avenue New York, NY 10022 212-909-6000 Fax: 212-909-6836 Email: jpcunard@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff The McGraw-Hill Companies, Inc.

Bruce P. Keller Debevoise & Plimpton, LLP (NYC) 919 Third Avenue, 3rd Floor New York, NY 10022 212 909-6000 Fax: 212 909-6836 Email: bpkeller@debevoise.com ATTORNEY TO BE NOTICED
represented by Jeffrey Paul Cunard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Pearson Education, Inc.

Bruce P. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Paul Cunard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Pearson Education, Inc.

Bruce P. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Paul Cunard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce P. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Simon & Schuster, Inc.

represented by Jeffrey Paul Cunard (See above for address) LEAD ATTORNEY

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Plaintiff John Wiley & Sons, Inc. individually and on behalf of all others similarly situated Plaintiff Canadian Standard Association
Plaintiff Jim Bouton

SDNY CM/ECF Version 6.1.1
ATTORNEY TO BE NOTICED
Bruce P. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey Paul Cunard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce P. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Hackett Neuman Proskauer Rose LLP 11 Times Square New York, NY 10036 (203)321-2924 Email: kneuman@proskauer.com TERMINATED: 09/21/2009 LEAD ATTORNEY
William Irwin Kohn Benesch Friedlander Coplan & Aronoff LLP (Cleveland) 200 Public Square Cleveland, OH 44114 (216)-363-4182 Fax: (216)-363-4588 Email: wkohn@beneschlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce P. Keller Debevoise & Plimpton, LLP (NYC) 919 Third Avenue,31st Floor New York, NY 10022 212 909-6000 Fax: 212 909-6836 Email: bpkeller@debevoise.com ATTORNEY TO BE NOTICED
represented by Joanne E. Zack (See above for address) ATTORNEY TO BE NOTICED
Michael J. Boni

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SDNY CM/ECF Version 6.1.1
(See above for address) ATTORNEY TO BE NOTICED

V. Appellant Lewis Hyde TERMINATED: 06/08/2011
Appellant Harry Lewis TERMINATED: 06/08/2011 Appellant Open Access Trust Inc. TERMINATED: 06/08/2011 Appellant Charles Nesson TERMINATED: 06/08/2011 Appellant Nicholas Negroponte TERMINATED: 06/08/2011

represented by Nathan Z. Dershowitz Dershowitz, Eiger & Adelson, P.C. 220 Fifth Avenue, Suite 300 New York, NY 10001 (212) 889-4009 Fax: (212) 889-3595 Email: ndershowitz@lawdea.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin Garbus Davis & Gilbert LLP 1740 Broadway New York, NY 10019 212 468 4883 Fax: 212 468 4888 Email: mgarbus@evw.com ATTORNEY TO BE NOTICED
represented by Martin Garbus (See above for address) ATTORNEY TO BE NOTICED
represented by Martin Garbus (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Nesson PRO SE
represented by Nicholas Negroponte PRO SE

V. Defendant Google Inc.

represented by David J. Silbert Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 94111 (415) 391-5400 Fax: (415) 397-7188

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SDNY CM/ECF Version 6.1.1
TERMINATED: 03/24/2009 LEAD ATTORNEY PRO HAC VICE

Melissa J. Miksch Keker & Van Nest, LLP 710 Sansome Street San Francisco, CA 94111 (415) 391-5400 Fax: (415) 397-7188 Email: mmiksch@kvn.com TERMINATED: 03/24/2009 LEAD ATTORNEY PRO HAC VICE

Robert Jay Bernstein The Law Ofﬁces of Robert J. Bernstein 380 Lexington Avenue, 17th Floor New York, NY 10022 (212) 551-1068 Fax: (212) 551-1001 Email: rjb@robert-bernsteinlaw.com TERMINATED: 05/11/2006 LEAD ATTORNEY

Ronald Lee Raider Kilpatrick Townsend & Stockton LLP(GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404)-532-6909 Fax: (404)-815-6555 Email: rraider@kilpatrickstockton.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Howard Charnes Kilpatrick Stockton LLP (NC ) 1001 West Fourth Street Winston-Salem, NC 27101 (336)-607-7382 Fax: (336)-734-2602 Email: acharnes@kilpatricktownsend.com PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Alex Seth Fonoroff , S Kilpatrick Townsend & Stockton LLP(GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404)-815-6436 Fax: (404)-541-3202
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SDNY CM/ECF Version 6.1.1
Email: afonoroff@kilpatrickstockton.com ATTORNEY TO BE NOTICED
Daralyn Jeannine Durie Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 (415) 362-6666 Fax: (415) 236-6300 Email: ddurie@durietangri.com PRO HAC VICE ATTORNEY TO BE NOTICED
David Floyd McGowan Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 (415) 362-6666 Fax: (415) 236-6300 Email: dmcgowan@durietangri.com PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P Rosloff Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 (415) 632-6666 Fax: (415) 236-6300 Email: jrosloff@durietangri.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey A. Conciatori Quinn Emanuel 51 Madison Avenue, 22nd Floor New York, NY 10010 212-702-8130 Fax: 212-702-8200 Email: jeffreyconciatori@quinnemanuel.com ATTORNEY TO BE NOTICED
Joseph M. Beck Kilpatrick Townsend & Stockton LLP(GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404)-815-6406 Fax: (404)-541-3126 Email: jbeck@kilpatrickstockton.com PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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ADR Provider Jack Beerman

SDNY CM/ECF Version 6.1.1
Joseph C. Gratz Durie Tangri LLP 217 Leidesdorff Street San Francisco, CA 94111 (415) 362-6666 Fax: (415) 236-6300 Email: jgratz@durietangri.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph Solomon Hall Kellogg, Hansen, Todd, Figel & Frederick PLLC (DC) 1615 M Street, N.W., Suite 400 Washington, DC 20036 202 326 7983 Fax: 202 326 7999 Email: jhall@kellogghansen.com TERMINATED: 10/30/2009

ADR Provider Privacy Authors and Publishers TERMINATED: 06/08/2011
ADR Provider Gary Rhoades
ADR Provider Giles Sandeman-Allen
Objector David Meininger

Michael John Guzman Kellogg, Hansen, Todd, Figel & Frederick PLLC (DC) 1615 M Street, N.W., Suite 400 Washington, DC 20036 202-326-7910 Fax: 202-326-7999 Email: mguzman@kellogghansen.com TERMINATED: 10/30/2009
represented by Rachel Eve Schwartz Rachel E. Schwartz, Esq., 267 Edgecome Avenue Suite 2H New York, NY 10031 (646)-415-4977 Email: racheleschwartz@juno.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

John W. Davis

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Objector Harold Bloom

SDNY CM/ECF Version 6.1.1
Law ofﬁcec of John W. Davis 501 W. Broadway Suite 800 San Diego, CA 92101 (619) 400-4870 Fax: (619)-342-7170 Email: jwdesq@yahoo.com ATTORNEY TO BE NOTICED
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Elliot Abrams

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Phyllis Ammons

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Richard Armey

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Jacques Barzun

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
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Objector Nicholas Basbanes

SDNY CM/ECF Version 6.1.1
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Stephen Bates

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Shawn J. Bayern

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Michael Behe

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Michael Cox

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Douglas Crase

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
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Objector Frank Gonzalez-Crussi
Objector Midge Decter
Objector John Derbyshire
Objector Estate of Thomas M. Disch
Objector Gerald Early
Objector Mel Eisenberg

SDNY CM/ECF Version 6.1T.1ERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman

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Objector Richard A. Epstein
Objector Henry Fetter
Objector David D. Friedman
Objector David Gelernter
Objector Gabrielle Glaser
Objector Mary Ann Glendon

SDNY CM/ECF Version 6.1.1
(See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

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Objector Victor Davis Hanson

SDNY CM/ECF Version 6.1.1
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Robert Herbold

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Arthur Herman

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Charles Hill

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Manuela Hoelterhoff

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Richard Howard
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

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SDNY CM/ECF Version 6.1.1

Objector Ishmael Jones

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Donald Kagan

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector David Kuo

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Michael Ledeen

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Susan Lee

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Mary Lefkowitz
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address)

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SDNY CM/ECF Version 6.1.1
TERMINATED: 10/30/2009

Objector David Lehman

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector John Lehman

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Howard Markel

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Sherwin B. Nuland

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Steven Ozment

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Michael Perry
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall

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SDNY CM/ECF Version 6.1.1
(See above for address) TERMINATED: 10/30/2009

Objector Norman Podhoretz

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Diane Ravitch

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Ralph Reed

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Harriet Rubin

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Sarah Ruden

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
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Peter Schweizer
Objector Roger Simon
Objector Roy Spencer
Objector Geoffrey R. Stone
Objector Charles Sykes
Objector Terry Teachout

SDNY CM/ECF Version 6.1.1
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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Objector Paco Underhill

SDNY CM/ECF Version 6.1.1
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Ruth Wisse

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Elizabeth Wurtzel

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector John Yoo

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

Objector Amazon.com, Inc.

Michael John Guzman (See above for address) TERMINATED: 10/30/2009
represented by Alexander F Wiles Irell & Manella LLP 840 Newport Center Drive, Suite 400 Newport Beach, CA 92660 (310)-277-1010 Fax: (310)-203-7199 Email: awiles@irell.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

David Nimmer Irell & Manella LLP (Los Angeles) 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 (310) 277-1010
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Objector Class Member Objectors
Objector Studentlitteratur AB Objector Arlo Guthrie
Objector Julia Wright

SDNY CM/ECF Version 6.1.1
Fax: (310) 203-7199 Email: dnimmer@irell.com ATTORNEY TO BE NOTICED
David A. Zapolsky Amazon.Com Post Ofﬁce Box 81226 Seattle, WA 98108 (206)-266-1323 Fax: (206)-266-7010 Email: davidz@amazon.com ATTORNEY TO BE NOTICED
represented by Cindy A. Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 Fax: (415) 436-9993 Email: cindy@eff.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew C. DeVore DeVore & DeMarco LLP 99 Park Avenue Suite 1100 New York, NY 10016 (212) 922-9499 Fax: (212) 922-1799 Email: acd@devoredemarco.com TERMINATED: 03/27/2012 LEAD ATTORNEY
Amin S. Kassam DeVore & DeMarco LLP 99 Park Avenue Suite 1100 New York, NY 10016 (212) 922-9499 Fax: (212) 922-1799 Email: akassam3@bloomberg.net TERMINATED: 03/27/2012
represented by Andrew C. DeVore (See above for address) TERMINATED: 03/27/2012 LEAD ATTORNEY

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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Objector Catherine Ryan Hyde

SDNY CM/ECF Version 6.1.1
Amin S. Kassam (See above for address) TERMINATED: 03/27/2012
represented by Andrew C. DeVore (See above for address) TERMINATED: 03/27/2012 LEAD ATTORNEY

Objector Eugene Linden

Amin S. Kassam (See above for address) TERMINATED: 03/27/2012
represented by Andrew C. DeVore (See above for address) TERMINATED: 03/27/2012 LEAD ATTORNEY

Objector
The American Society of Media Photographers, Inc.

Amin S. Kassam (See above for address) TERMINATED: 03/27/2012
represented by Shirley Othmana Saed Dickstein Shapiro LLP (NYC) 1633 Broadway New York, NY 10019-6708 (212) 277-6687 Fax: (212)277-6501 Email: SaedS@dsmo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola Dickstein Shapiro LLP (DC) 1825 Eye Street, N.W. Washington, DC 20006-5403 (202) 420-2200 Fax: (202) 420-2201 Email: ossolac@dicksteinshapiro.com PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Jacqueline DeVries Enterprise Counsel Group Five Park Plaza Suite 450 Irvine, CA 92614 (949)-833-8550 Fax: (949)-833-8540 Email: cdevries@enterprisecounsel.com

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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SDNY CM/ECF Version 6.1.1
ATTORNEY TO BE NOTICED

Elaine Metlin Dickstein Shapiro LLP (DC) 1825 Eye Street, N.W. Washington, DC 20006-5403 (202) 420-2200 Fax: (202) 420-2201 PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Graphic Artists Guild

Victor Sigmund Perlman American Society of Media Photographers 150 North Second Street Philadelphia, PA 19106 (215) 415-2767 Fax: (215) 451-0880 Email: perlman@asmp.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Jacqueline DeVries (See above for address) ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Picture Archive Council of America

Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Charles D. Ossola (See above for address)
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SDNY CM/ECF Version 6.1(.S1 ee above for address)
PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Jacqueline DeVries (See above for address) ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector
North American Nature Photography Association

Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Jacqueline DeVries (See above for address) ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Joel Meyerowitz

Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Christina Jacqueline DeVries
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SDNY CM/ECF Version 6.1C.1hristina Jacqueline DeVries
(See above for address) ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Dan Budnick

Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Jacqueline DeVries (See above for address) ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Peter Turner

Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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Objector Lou Jacobs, Jr

SDNY CM/ECF Version 6.1.1
Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shirley Othmana Saed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles D. Ossola (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christina Jacqueline DeVries (See above for address) ATTORNEY TO BE NOTICED

Elaine Metlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Ishmael Jones
Objector Wendy Shalit
Objector American Society of Journalists and Authors

Victor Sigmund Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
represented by Jennifer Lynch UC Berkeley School of Law, Samuelson Clinic 389 Simon Hall Berkeley, CA 94720 (510) 642-7515 Fax: (510) 643-4625 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Joseph Solomon Hall

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Objector Charlotte Allen
Objector DC Comics

SDNY CM/ECF Version 6.1.1
(See above for address) TERMINATED: 10/30/2009
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
represented by Katherine B Forrest Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Fax: (212) 474-3700 Email: kforrest@cravath.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Microsoft Corporation

Mark Lloyd Silverstein Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212)-474-1355 Fax: (212)-474-3700 Email: msilverstein@cravath.com (Inactive) ATTORNEY TO BE NOTICED
represented by Charles Blaine Casper Montgomery, McCracken, Walker & Rhoads, LLP (PA) 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 x7223 Fax: (215) 731-3750 Email: ccasper@mmwr.com ATTORNEY TO BE NOTICED

Richard Montgomery Donaldson Montgomery, McCraken, Walker & Rhoads, LLP (DE) 1105 North Market Street Suite 1500 Wilmington, DE 19801 (302) 504-7800 Fax: (302) 504-7820 Email: rdonaldson@mmwr.com PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Cort Rubin Microsoft Corporation

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Objector Hachette Livre SA
Objector Librarie Arthme Fayard SA
Objector Dunod Editeur SA
Objector Les Editions Hatier SNC

SDNY CM/ECF Version 6.1.1
1 Microsoft Way Redmond, WA 98052 (425)-706-6149 Fax: (425)-708-4840 Email: tom.rubin@microsoft.com ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto Jones Day (NYC) 250 Vesey Street 34th Floor New York, NY 10281 (212)-326-3690 Fax: (212)-755-7306 Email: rmicheletto@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nidhi Yadava Jones Day (NYC) 250 Vesey Street 34th Floor New York, NY 10281 (212) 326-3939 x3746 Fax: (212) 755-7306 Email: nyadava@jonesday.com ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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Objector Editions Larousse SAS

SDNY CM/ECF Version 6.1.1
Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Editorial Salvat SL

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Grupo Anaya SA

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Algaida Editores, S.A.

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Alianza Editorial, S.A.

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
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Objector Edicions Xerais De Galicia, S.A.

SDNY CM/ECF Version 6.1.1
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Editorial Barcanova, S.A.

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Larousse Editorial, S.L

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Grupo Editorial Bruno, S.L.

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Edelsa Grupo Didascalia, S.A.

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector Hachette UK Limited
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED
represented by Robert C. Micheletto (See above for address)

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SDNY CM/ECF Version 6.1(.S1 ee above for address)
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nidhi Yadava (See above for address) ATTORNEY TO BE NOTICED

Objector Takashi Atouda

represented by Yasuhiro Saito Carter, Ledyard & Milburn,L.L.P. 2 Wall Street New York, NY 10005 212 238 8614 Fax: 212 732 3232 Email: saito@clm.com ATTORNEY TO BE NOTICED

Objector Susumu Nakanishi

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Akiko Shimojyu

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Jiro Asada

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Takeaki Hori

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Yuko Matsumoto

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Chihaya Takahashi

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Shinobu Yoshioka

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

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Kenta Yamada

SDNY CM/ECF Version 6.1.1
represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Tomotsuyo Aizawa

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Yu Ohara

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Yasumasa Kiyohara

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Takashi Tsujii

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Akira Nogami

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Hiroyuki Shinoda

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Toshihiko Yuasa

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Koichi Kato

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Masahiko Motoki

represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED

Objector Hidehiko Nakanishi

represented by Yasuhiro Saito (See above for address)

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Objector Yashio Uemura
Objector Nobuo Uda
Objector Tsukasa Yoshida
Objector Canadian Standards Association

SDNY CM/ECF Version 6.1.1
ATTORNEY TO BE NOTICED
represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED
represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED
represented by Yasuhiro Saito (See above for address) ATTORNEY TO BE NOTICED
represented by Kristin Hackett Neuman (See above for address) TERMINATED: 09/21/2009 LEAD ATTORNEY

Mark Edward Avsec Mark E. Avsec, Esq., 200 Public Square Suite 2300 Cleveland, OH 44114-2378 (216) 363-4500 Fax: (216) 363-4588 Email: mavsec@beneschlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Eric Jager
Objector Privacy Authors and Publishers Objector Charles D Weller Objector Charles D Weller

Bruce P. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009

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Objector weller Objector Charles D Weller
Objector Yahoo! Inc.
Objector Dirk Sutro Objector Free Software Foundation, Inc. Objector Songwriters Guild of America Objector Darlene Marshall

SDNY CM/ECF Version 6.1.1
represented by Edward Frank Siegel 27600 Chagrin Blvd. #340 Cleveland, OH 44124 (216) 831-3424 Fax: (216) 831-6584 Email: efsiegel@efs-law.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert Cunningham Turner Winston & Strawn LLP (NY) 200 Park Avenue New York, NY 10166 (212) 294-3538 Fax: (212) 294-4700 Email: rturner@winston.com ATTORNEY TO BE NOTICED
represented by Matthew Jay Weiss Weiss & Associates, P.C 419 Park Avenue South 2nd Flr. New York, NY 10001 (212)-683-7373 Fax: (212)-726-0135 Email: mjweiss@weissandassociatespc.com ATTORNEY TO BE NOTICED

Objector
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Paul S. Rothstein Solo Practitioner 626 N.E. 1st St. Gainsville, FL 32601 352-376-7650 Fax: 352-374-7133 PRO HAC VICE ATTORNEY TO BE NOTICED
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Darlene Marshall

SDNY CM/ECF Version 6.1.1
represented by Paul S. Rothstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Objector
Ravensburger Buchverlag Otto Maier GmbH

Objector Dietrich zu Klampen Verlag GbR

Objector Cornelsen Verlag GmbH

Objector
Cornelsen Verlag Scriptor GmbH & Co. KG

Objector Karl-May-Verlag

Objector VDI Verlag GmbH

Objector Verlag Europa-Lehrmittel

Objector Fachbuchverlag Pfanneberg

Objector Friedrich Kiehl Verlag GmbH

Objector P. Kerchheim Verlag

Objector Martin Wichert

Objector Tom Kraushaar

Objector Sakari Laiho

Objector Klaus W. Mueller

Objector Koninklijke Van Gorcum B.V.

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Objector Ulich Pokern
Objector Tilo Knoche
Objector Dr. W. Georg Olms
Objector The Deutsche Stiftung Denkmalschutz
Objector Vde Verlag GmbH
Objector Atrium Veriag AG
Objector Hinstorff Verlag GmbH
Objector Sautter & Lackmann Gachbuchhandlung
Objector Dr. Martina Erdmann
Objector Junius Verlag GmbH
Objector Verlag Handwerk und Technik GmbH
Objector Cadmos Verlag GmbH
Objector Tanja Graf
Objector Arche Literatur Verlag AG
Objector Alba Fachverlag GmbH & Co.KG
Objector French Publishers Association
Objector Les Editions De Minuit S.A.

SDNY CM/ECF Version 6.1.1

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Objector The Japan Writers' Association

SDNY CM/ECF Version 6.1.1

Objector The Dutch Publishers Association (NUV)

Objector Frommann-holzboog e.K.

Objector Bouvier Berlag

Objector
"Copyright for Education and Science" (CCES)

Objector Adrian Schommers

Objector Dag Hernried

Objector Lena Andersson

Objector Caterin Christell Grimlund

Objector David Stansvik

Objector Par Sjolinder

Objector Kristoffer Lind

Objector Karl Heinz Bonny

Objector Andreas Schulz

Objector Dr. Martin Wagner

Objector Hans-Jurgen Dietrich

Objector Dr. Susanne Greiner
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Objector Harald Kirbach
Objector Chris Schoen
Objector Cordula Walter-Bolhofer
Objector Georg Holzmeister
Objector Joachim Weilder
Objector Peter Hohl
Objector Dr. Reinhard Martini
Objector Torbjorn Santerus
Objector Russell Davis
Objector Owen Atkinson
Objector Gordon Charles Ell
Objector Antonette R Jones
Objector Ann Louise Mitcalfe
Objector Malcolm Campbell
Objector Ulf Heimdahl
Objector Bernd Vincent Walbaum
Objector Ingwert Paulsen

SDNY CM/ECF Version 6.1.1

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Objector Sudi Shayesteh
Objector Merrill Parra
Objector Isabelle Jeuge-Maynary
Objector Nathalie Jouven
Objector Serge Enyrolles
Objector Jesus Sanchez Garcia
Objector E.A. van Ingen
Objector Eva Swartz
Objector Arnaud Nourry
Objector Vincent Montagne
Objector Bjorn Andersson
Objector Ben-Ami Freier
Objector Alain Kouck
Objector Ursula Rosengart
Objector Alexander Potyka
Objector Dr. Carsten C. Hubner
Objector Elisabeth Zerlauth

SDNY CM/ECF Version 6.1.1

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Objector Johan de Koning
Objector Joachim Kamphausen
Objector Michael Cramm
Objector Albrecht Oldenbourg
Objector Regina Lindhoff
Objector John C. Lorenz
Objector Dana P. Tierney
Objector Paul A. Heider
Objector Sara Mella
Objector Diana Kimpton
Objector Norbert Treuheit
Objector Teresa Cremisi
Objector Kristin Nilsson
Objector Brigitte Fleissner-Mikorey
Objector Dr. Sven Fund
Objector Olivier Nora
Objector Kobushi Shobo

SDNY CM/ECF Version 6.1.1

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Objector Bernhard Bucker
Objector Hans Nijenhuis
Objector Tatjana Sepin
Objector Ulrike Jurgens
Objector Eginhard Hohne
Objector Bernd Tofﬂinger
Objector Henk Scheenstra
Objector Antoine Gallimard
Objector Claude Portmann
Objector Michael Schweins
Objector Robert Dimbleby
Objector Michael Vogtmeier
Objector Klaas Jarchow
Objector Stephen Cox
Objector Francis Esmenard
Objector Oskar Klan
Objector Axel Schonberger

SDNY CM/ECF Version 6.1.1

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Objector Albrecht Koschutzke

SDNY CM/ECF Version 6.1.1

Objector Jean L. Cooper

Objector Kazufumi Watanabe

Objector Mitchell Allen

Objector Jesus Sanchez Garcia

Objector Comelia Heering

Objector Karin Schmidt-Friderichs

Objector Dr. Felix Breidenstein

Objector Mumia Abu-Tamal

Objector
Federacion de Gremios de Editores de Espana

Objector Salley Shannon

Objector Minoru Ito

Objector Rose Teo

Objector Aime Van Hecke

Objector Stephanie Golden

Objector Isabelle Magnac

Objector Jesse Rutherford
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Objector John Mouldin
Objector Frank P. Scibilia
Objector Dirk Sieben
Objector Klaus Humann
Objector Barbara Scheuch-Voetterle
Objector h.c. Karl-Peter Winters
Objector Vibeke Viteri-Loohuis
Objector Moritz Hagenmuller
Objector Tobias Koerner
Objector Publishing House De Geus
Objector Elizabeth Greenberg
Objector Rebecca C. Jones
Objector Andrea Warren
Objector The State of Missouri
Objector Proquest, LLC
Objector The Washington Legal Foundation
Objector Sarah E. Cazoneri

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Objector Dale Henderson

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Objector Matthew B. Cazoneri

Objector Donna J. Wood

Objector Karl Fogel

Objector Electronic Privacy Information Center

Objector Electronic Frontier Foundation et al.

represented by Cindy A. Cohn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Objector Editions Albin Michel

Objector Editis Group

Objector John Mauldin

Objector Presses Universitaires de France

Objector
Science Fiction and Fantasy Writers of America, Inc.

represented by Ron Lazebnik Lincoln Square Legal Services, Inc., 150 West 62nd street, 9th ﬂ. New York, NY 10023 (212) 636-6934 Fax: (212) 636-6923 Email: rlazebnik@lsls.fordham.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector
American Society of Journalists and Authors, Inc.

represented by Ron Lazebnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Objector
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America Library Association
Objector Association of College and Research Libraries
Objector Assocation of Research Libraries
Objector Commonwealth of Pennsylvania, Attorney General Objector AT&T CORP.

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represented by Jonathan Band Jonathan Band, Esq., 21 Dupont Circle, N.W., #800 Washington, DC 20036 202-296-5675 Fax: 202-872-0884 Email: jband@policybandwidth.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Band (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan Band (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Derek Tam Ho Kellogg, Hansen, Todd, Figel & Frederick PLLC (DC) 1615 M Street, N.W., Suite 400 Washington, DC 20036 (202)-326-7931 Fax: (202)-326-7999 Email: dho@kellogghansen.com ATTORNEY TO BE NOTICED

Kiran Sriram Raj Kellogg, Hansen, Todd, Figel & Frederick PLLC (DC) 1615 M Street, N.W., Suite 400 Washington, DC 20036 (202)-326-7900 Fax: (202)-326-7999 PRO HAC VICE ATTORNEY TO BE NOTICED

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Michael K. Kellogg Kellogg, Hansen, Todd, Figel & Frederick
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Objector Writers' Representatives LLC
Objector Questia Media Inc. Objector Esq. Robert M. Kunstadt

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PLLC (DC) 1615 M Street, N.W., Suite 400 Washington, DC 20036 (202) 326-7902 Fax: (202) 326-7999 Email: mkellogg@kellogghansen.com ATTORNEY TO BE NOTICED
represented by Lynn T. Chu Writers' Representatives LLC 116 West 14th Street New York, NY 10011 (212)-620-9009 Fax: (212)-620-0023 Email: lynn@writersreps.com ATTORNEY TO BE NOTICED
represented by Ilaria Maggioni R. Kunstadt, P.C. 875 6th Ave Suite 1800 New York, NY 10001 (212) 398-8881 Fax: (212) 398-2922 Email: mail@rkunstadtpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Miscellaneous Publisher's Association
Miscellaneous The Canadian Publishers' Council
Miscellaneous CEDRO
Miscellaneous Antoine Gallimard Chief Executive Ofﬁcer of the Edition Gallimard, SA
Miscellaneous Australian Publishers Association

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Miscellaneous Ursula K. LeGuin
Interested Party Olswang LLP
Interested Party United States of America

SDNY CM/ECF Version 6.1.1
represented by John Dalton Clopper U.S. Attorney's Ofﬁce, SDNY 86 Chambers Street New York, NY 10007 (212) 637-2716 Email: john.clopper@usdoj.gov ATTORNEY TO BE NOTICED
Marisa Chun U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 ATTORNEY TO BE NOTICED
William Francis Cavanaugh , Jr United States Department of Justice (Antitrust Div) 905 Pennsylvania Avenue Rm 3214 Washington, DC 20530-0001 (202) 353-1535 Fax: (202) 514-6543 Email: wfcavanaugh@pbwt.com ATTORNEY TO BE NOTICED

V. Amicus New York Law School, Institute for Information Law and Policy
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

represented by Daniel Joseph Kornstein Kornstein Veisz Wexler & Pollard, LLP 757 Third Avenue NY, NY 10017 (212) 418-8610 Fax: (212) 826-3640 Email: dkornstein@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Taylor Lewis Grimmelmann New York Law School Institute for Information Law and Policy 57 Worth Street New York, NY 10013 (212) 431-2368 Fax: (212) 791-2144 Email: james.grimmelmann@nyls.edu
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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Computer and Communications Industry Association

Mikaela Ann McDermott Kornstein Veisz Wexler & Pollard, LLP 757 Third Avenue NY, NY 10017 (212)-418-8606 Fax: (212)-826-3640 Email: mmcdermott@kvwmail.com ATTORNEY TO BE NOTICED
represented by Matthew Christian Schruers Computer & Communications Industry Association 900 17th Street Nw, Suite 1100 Washington, DC 20006 (202)-783-0070 Fax: (202)-783-0534 Email: mschruers@ccianet.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Consumer Watchdog

Matthew Christian Schrurers Computer and Communications Industry Association 900 17th Street Suite 1100 Washington, DC 20006 (202) 783-0070 Fax: (202) 783-0534 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Daniel J. Fetterman Kasowitz, Benson, Torres LLP (NYC) 1633 Broadway New York, NY 10019 (212)-506-1934 Fax: (212)-506-1800 Email: dfetterman@kasowitz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Jonathan Toren Kasowitz, Benson, Torres LLP (NYC) 1633 Broadway New York, NY 10019 (212) 506-1986 Fax: (212) 506-1800 Email: ptoren@kasowitz.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Federal Republic of Germany

represented by Theodore Conrad Max Sheppard, Mullin, Richter & Hampton 30 Rockefeller Plaza New York, NY 10112 212 692 6891 Fax: 212 983 3115 Email: tmax@sheppardmullin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Cornell University

represented by Nelson E. Roth Cornell University, 300 CCC Building, Garden Avenue Ithaca, NY 14853 607-255-2796 Fax: 607-255-2794 Email: ner3@cornell.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sony Electronics Inc.

Amicus Antitrust Law and Economics Professors

Amicus
Richard Blumenthal CT Attorney General State of Connecticut

represented by Gary M. Becker Connecticut Ofﬁce of the Attorney General 55 Elm Street Hartford, CT 06106 (860)-808-5169 Fax: (860)-808-5033 Email: gary.becker@ct.gov ATTORNEY TO BE NOTICED

Amicus Open Book Alliance

represented by Anthony D Boccanfuso Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, NY 10019 (212) 715-1315 Fax: (212) 715-1399 Email: anthony_boccanfuso@aporter.com ATTORNEY TO BE NOTICED

Amicus Lyrasis, Inc.
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

represented by Robert William Clarida

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Amicus NYLINK
Amicus Bibliographical Center for Research Rocky Mountain, Inc.
Amicus French Republic Amicus The Internet Archive Amicus Public Knowledge

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Cowan, Liebowitz & Latman, P.C. 114 West 47th Street New York, NY 10036 212-7909266 Fax: 212-575-0671 Email: rclarida@reitlerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert William Clarida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert William Clarida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jef Pearlman Public Knowledge 1875 Connecticut Avenue, N.W. Suite 650 Washington, DC 20009 (202) 518-0020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Center for Democracy & Technology
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Sherman Siy Public Knowledge 1875 Connecticut Avenue, N.W. Suite 650 Washington, DC 20009 (202) 518-0020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Burnett Morris , Jr. New York City Law Department (Bronx) 198 East 161st Street, 3rd Floor Bronx, NY 10451 (202)-637-9800 Fax: (202)-637-0968
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Amicus Japan P.E.N. Club
Amicus Consumer Watchdog Amicus Consumer Watchdog Amicus Digital Humanities Scholars and Law Professors

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Email: jmorris@cdt.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Yasuhiro Saito (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Babak Siavoshy Samuelson Law, Technology & Public Policy Clinic Berkeley Law School, 396 Simon Hall Berkeley, CA 94720-7200 510-643-6552 Fax: 510-643-4625 Email: bsiavoshy@law.berkeley.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer M. Urban Samuelson Law, Technology & Public Policy Clinic Berkeley Law School, 396 Simon Hall Berkeley, CA 94720-7200 510-642-7338 Fax: 510-643-4625 Email: jurban@law.berkeley.edu PRO HAC VICE ATTORNEY TO BE NOTICED

V. Trustee Peter Gollasch

V. Intervenor Harrasowitz
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

represented by Alexandra A. E. Shapiro Shapiro Arato LLP 500 Fifth Avenue, 40th Floor New York, NY 10110 (212)-257-4880

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Fax: (212) 202-6417 Email: ashapiro@shapiroarato.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Media24

Cynthia S. Arato Shapiro Arato LLP 500 Fifth Avenue, 40th Floor New York, NY 10110 (212) 257-4880 Fax: (212) 202-6417 Email: carato@shapiroarato.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Studentlitteratur AB

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Norstedts Forlagsgrupp AB

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Norstedts Kartor AB
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Leopard Forlag AB

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Borsenverein des Deutschen Buchhandels

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor
Schweizer Buchhandler - und VerlegerVerband SBVV

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor
Hauptverband des Osterreichischen Buchhandels

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Svenska Forlaggareforeningen
https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?106961178562756-L_1_0-1

Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address)

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Intervenor Czernin Verlag
Intervenor Czernin Verlag Intervenor Carl Hanser Verlag
Intervenor Dr. Lynley Hood
Intervenor Dr. Lynley Hood

SDNY CM/ECF Version 6.1.1
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address)

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Intervenor Dr. Lynley Hood
Intervenor New Zealand Society of Authors
Intervenor Associazone Italiana Editori
ThirdParty Defendant Charlotte Allen

SDNY CM/ECF Version 6.1.1
LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra A. E. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia S. Arato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charlotte Allen PRO SE
Joseph Solomon Hall (See above for address) TERMINATED: 10/30/2009
Michael John Guzman (See above for address) TERMINATED: 10/30/2009

Date Filed 09/20/2005

# Docket Text
1 COMPLAINT against Google Inc. (Filing Fee $ 250.00, Receipt Number 555987)Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel

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Hoffman.(laq, ) (Entered: 09/22/2005)

09/20/2005

SUMMONS ISSUED as to Google Inc.. (laq, ) (Entered: 09/22/2005)

09/20/2005

2 RULE 7.1 DISCLOSURE STATEMENT. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman.(laq, ) (Entered: 09/22/2005)

09/20/2005

Magistrate Judge Douglas F. Eaton is so designated. (laq, ) (Entered: 09/22/2005)

09/20/2005

Case Designated ECF. (laq, ) (Entered: 09/22/2005)

10/10/2005

3 SUMMONS RETURNED EXECUTED. Google Inc. served on 9/23/2005, answer due 10/13/2005. Service was accepted by Ashok Ramani, Legal Representative, authorized to accept service of Summons in a Civil Action, Class Action Complaint, Rule 7.1 Statement, Civil Case Cover Sheet, Magistrate Judge Eaton's and Judge Sprizzo Rules along with ECF Procedures and Guidelines, on behalf of Google Inc. Document ﬁled by The Author's Guild. (Attachments: # 1)(Dumain, Sanford) (Entered: 10/10/2005)

10/11/2005

4 STIPULATION AND ORDER that the time for deft to respond to the complaint is extended 20 days from 10/13 to and including 11/2/05. (Signed by Judge John E. Sprizzo on 10/7/05) (cd, ) (Entered: 10/12/2005)

10/11/2005

Set Answer Due Date purs. to 4 Stipulation and Order as to Google Inc. answer due on 11/2/2005. (cd, ) (Entered: 10/12/2005)

10/11/2005

5 MOTION for Joseph M. Beck to Appear Pro Hac Vice. Document ﬁled by Google Inc. (jco, ) (Entered: 10/12/2005)

10/11/2005

6 MOTION for Adam H. Charnes to Appear Pro Hac Vice. Document ﬁled by Google Inc. (jco, ) (Entered: 10/12/2005)

10/24/2005

7 MOTION for an order, admitting Michael J. Boni to Appear Pro Hac Vice as counsel for Plaintiffs. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. Afﬁdavit of Sanford P. Dumain attached.(sac, ) (Entered: 10/25/2005)

10/24/2005

8 MOTION for an order, admitting J. Kate Reznick to Appear Pro Hac Vice as counsel for Plaintiffs. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. Afﬁdavit of Sanford P. Dumain attached.(sac, ) (Entered: 10/25/2005)

10/25/2005

9 ORDER granting 5 Motion for Joseph M. Beck to Appear Pro Hac Vice . (Signed by Judge John E. Sprizzo on 10/24/05) (jco, ) (Entered: 10/25/2005)

10/25/2005

Transmission to Attorney Admissions Clerk. Transmitted re: 9 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jco, ) (Entered: 10/25/2005)

10/25/2005

10 ORDER granting 6 Motion for Adam H. Charnes to Appear Pro Hac Vice . (Signed by Judge John E. Sprizzo on 10/24/05) (jco, ) (Entered: 10/25/2005)

10/25/2005

Transmission to Attorney Admissions Clerk. Transmitted re: 10 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jco, ) (Entered: 10/25/2005)

10/27/2005

CASHIERS OFFICE REMARK on 10 Order on Motion to Appear Pro Hac Vice, 9 Order on Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 10/27/2005, Receipt Number 559555. (gm, ) (Entered: 10/27/2005)

10/28/2005

11 ORDER that dft is granted leave to submit its motion for summary judgment not to exceed 25 pages on or before 11/30/05; plaintiffs shall submit their response to dft's motion and any cross motion; together not to exceed 25 pages on or before 1/6/06; dft shall submit its replyto plaintiffs' cross motion, if any, limited to the issues raised therein

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10/28/2005 11/18/2005 11/30/2005 11/30/2005 12/09/2005 12/09/2005 12/15/2005 12/15/2005 12/15/2005 12/15/2005 12/29/2005 03/16/2006 03/16/2006 03/29/2006 04/12/2006 04/13/2006 04/19/2006

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not to exceed ﬁfteen pages, on or before 1/24/06 and oral argument shall occur on 1/30/06 at 3:00 pm. in courtoom 705, 40 Centre Street. (Signed by Judge John E. Sprizzo on 10/26/05) (dle, ) (Entered: 10/31/2005)
Set Deadlines/Hearings: Motions due by 11/30/2005. Replies due by 1/24/2006. Responses due by 1/6/2006 Oral Argument set for 1/30/2006 03:00 PM before Judge John E. Sprizzo. (dle, ) (Entered: 10/31/2005)
12 NOTICE of Appearance by Laura Helen Gundersheim on behalf of all plaintiffs (Gundersheim, Laura) (Entered: 11/18/2005)
13 RULE 7.1 DISCLOSURE STATEMENT. Document ﬁled by Google Inc..(Bernstein, Robert) (Entered: 11/30/2005)
14 ANSWER to Complaint with JURY DEMAND. Document ﬁled by Google Inc.. (Bernstein, Robert) (Entered: 11/30/2005)
15 AFFIDAVIT of Sanford P. Dumain in Support re: 7 MOTION for Michael J. Boni to Appear Pro Hac Vice.. Document ﬁled by The Author's Guild. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gundersheim, Laura) (Entered: 12/09/2005)
16 AFFIDAVIT of Sanford P. Dumain in Support re: 8 MOTION for J. Kate Reznick to Appear Pro Hac Vice.. Document ﬁled by The Author's Guild. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gundersheim, Laura) (Entered: 12/09/2005)
17 MOTION for Alex S. Fonoroff to Appear Pro Hac Vice. Attached is Afﬁdavit of Robert J. Bernstein in support Document ﬁled by Google Inc.. (djc, ) (Entered: 12/16/2005)
18 ORDER granting 8 Motion for J. Kate Reznick to Appear Pro Hac Vice . (Signed by Judge John E. Sprizzo on 12/13/05) (jco, ) (Entered: 12/16/2005)
Transmission to Attorney Admissions Clerk. Transmitted re: 18 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jco, ) (Entered: 12/16/2005)
19 ORDER granting 7 Motion for Michael J. Boni to Appear Pro Hac Vice . (Signed by Judge John E. Sprizzo on 12/13/05) (jco, ) (Entered: 12/16/2005)
CASHIERS OFFICE REMARK on 19 Order on Motion to Appear Pro Hac Vice, 18 Order on Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 12/22/2005, Receipt Number 564907. (jd, ) (Entered: 12/29/2005)
20 ORDER; granting 17 Motion for Alex S. Fonoroff, Esq. to Appear Pro Hac Vice (Signed by Judge John E. Sprizzo on 3/14/06) (sac, ) (Entered: 03/16/2006)
Transmission to Attorney Admissions Clerk. Transmitted re: 20 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (sac, ) (Entered: 03/16/2006)
21 NOTICE OF APPEARANCE by Alex Seth Fonoroff, S on behalf of Google Inc. (Fonoroff, Alex) (Entered: 03/29/2006)
22 NOTICE OF APPEARANCE by Jeffrey A. Conciatori on behalf of Google Inc. (Conciatori, Jeffrey) (Entered: 04/12/2006)
23 MOTION for Ronald L. Raider to Appear Pro Hac Vice. Document ﬁled by Google Inc. (jco, ) (Entered: 04/14/2006)
24 ORDER granting 23 Motion for Ronald L. Raider to Appear Pro Hac Vice . (Signed by Judge John E. Sprizzo on 4/18/06) (jco, ) (Entered: 04/20/2006)

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04/19/2006

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Transmission to Attorney Admissions Clerk. Transmitted re: 24 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jco, ) (Entered: 04/20/2006)

05/09/2006

25 NOTICE of Substitution of Attorney. Old Attorney: Robert J. Bernstein, New Attorney: Jeffrey A. Conciatori, Address: Quinn Emanuel Urquhart Oliver & Hedges, LLP, 51 Madison Avenue, 22nd ﬂ., New York, New York, United States 10010, 212-849-7000. Document ﬁled by Google Inc.. (Conciatori, Jeffrey) (Entered: 05/09/2006)

05/11/2006

26 STIPULATION AND ORDER; that the law ﬁrm of Quinn Emanuel Urquhart Oliver & Hedges, LLP be substituted as counsel for dft. in the place of The Law Ofﬁces of Robert J. Bernstein. (Signed by Judge John E. Sprizzo on 4/27/06) (pl, ) (Entered: 05/11/2006)

05/11/2006

27 NOTICE OF CHANGE OF ADDRESS by Jeffrey A. Conciatori on behalf of Google Inc.. New Address: Quinn Emanuel Urquhart Oliver & Hedges, LLP, 51 Madison Avenue, 22nd Fl., New York, New York, United States 10010, 212-849-7000. (Conciatori, Jeffrey) (Entered: 05/11/2006)

05/17/2006

28 PROTECTIVE ORDER; regarding procedures to be followed that shall govern the handling of conﬁdential information. (Signed by Judge John E. Sprizzo on 5/16/2006) (kkc, ) (Entered: 05/18/2006)

05/22/2006

29 CASE MANAGEMENT PLAN: Amended Pleadings due by 6/19/2006. Motions due by 7/2/2007. Discovery due by 4/9/2007. Pretrial Conference set for 10/23/2006 03:00 PM before Judge John E. Sprizzo; initial disclosures under Rule 26(a)(1) shall be exchanged by 5/19/06; disclosure of expert witnesses required under Rule 26(a)(2) (A) shall be exchanged on 2/16/07; initial expert reports shall be exchanged on 3/16/07; rebuttal expert reports shall be exchanged on 4/4/07; expert deposition shall be taken from 4/4/07 through 5/15/07. (Signed by Judge John E. Sprizzo on 5/12/06) (dle, ) (Entered: 05/22/2006)

06/09/2006

30 RULE 26 DISCLOSURE.Document ﬁled by Google Inc..(Raider, Ronald) (Entered: 06/09/2006)

06/12/2006

31 RULE 26 DISCLOSURE.Document ﬁled by Google Inc..(Raider, Ronald) (Entered: 06/12/2006)

06/19/2006

32 MOTION to Amend/Correct the Complaint. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Attachments: # 1 Text of Proposed Order # 2 Certiﬁcate of Service)(Dumain, Sanford) (Entered: 06/19/2006)

06/19/2006

33 DECLARATION of J Kate Reznick in Support re: 32 MOTION to Amend/Correct the Complaint.. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Attachments: # 1 Exhibit A (Amended Complaint)# 2 Certiﬁcate of Service)(Dumain, Sanford) (Entered: 06/19/2006)

06/19/2006

34 MEMORANDUM OF LAW in Support re: 32 MOTION to Amend/Correct the Complaint.. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Attachments: # 1 Certiﬁcate of Service)(Dumain, Sanford) (Entered: 06/19/2006)

06/29/2006

35 STIPULATION AND ORDER: The parties agree as follows: Plaintiffs may amend their complaint as set forth in their moving papers, and the amended class action complaint attached to the moving papers is deemed ﬁled on June 19, 2006. Defendant shall ﬁle a responsive pleading within thirty days of the date of this stipulation and order. (Signed by Judge John E. Sprizzo on 6/28/06) (js, ) (Entered: 06/30/2006)

07/26/2006

36 AMENDED COMPLAINT amending 1 Complaint against Google Inc.Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles,

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Daniel Hoffman. Related document: 1 Complaint ﬁled by Betty Miles,, Daniel Hoffman, The Author's Guild, Herbert Mitgang.(db, ) (Entered: 07/26/2006)
37 ANSWER to Amended Complaint. Document ﬁled by Google Inc.. Related document: 36 Amended Complaint, ﬁled by Betty Miles,, Daniel Hoffman,, The Author's Guild,, Herbert Mitgang,, Paul Dickson,, Joseph Goulden,.(Charnes, Adam) (Entered: 07/26/2006)
38 NOTICE OF APPEARANCE by Ronald Lee Raider on behalf of Google Inc. (Raider, Ronald) (Entered: 09/14/2006)
39 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of conﬁdential material.... (Signed by Judge John E. Sprizzo on 9/22/2006) (lb, ) (Entered: 09/26/2006)
40 NOTICE of Intent to Serve Subpoenas. Document ﬁled by Google Inc.. (Attachments: # 1 Attachment (Part 1)# 2 Attachment (Part 2)# 3 Attachment (Part 3))(Raider, Ronald) (Entered: 09/29/2006)
41 NOTICE of Intent to Serve Subpoena. Document ﬁled by Google Inc.. (Attachments: # 1 Attachment A)(Raider, Ronald) (Entered: 10/04/2006)
42 NOTICE/ORDER OF WITHDRAWAL; Shannon M. McKenna an atty at Milberg Weiss Bershad & Schulman LLP and one of the attorney for Plaintiff- The Author's Guild, hereby withdraws as counsel for said plaintiff. Milberg Weiss Bershad & Schulman LLP continues to serve as counsel for plaintiff -The Author's Guild through its atty Sanford P. Dumain who requests that all future correspondence and papers in ths action continue to be directed to him. (Signed by Judge John E. Sprizzo on 10/3/06) (djc, ) (Entered: 10/10/2006)
43 MOTION for Hadley Perkins Roeltgen to Appear Pro Hac Vice. Document ﬁled by The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (jco, ) (Entered: 10/10/2006)
44 AMENDED CASE MANAGEMENT ORDER AND SCHEDULING ORDER: Amended Pleadings due by 6/19/2006. Motions due by 1/11/2008. Pretrial Conference set for 3/12/2007 03:00 PM before Judge John E. Sprizzo. (Signed by Judge John E. Sprizzo on 10/12/06) (kco, ) (Entered: 10/17/2006)
45 ORDER ADMITTING ATTORNEY PRO HAC VICE. Hadley Perkins Roeltgen is permitted to argue this case. (Signed by Judge John E. Sprizzo on 10/12/06) (kco, ) (Entered: 10/17/2006)
Transmission to Attorney Admissions Clerk. Transmitted re: 45 Order Admitting Attorney Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (kco, ) (Entered: 10/17/2006)
CASHIERS OFFICE REMARK on 45 Order Admitting Attorney Pro Hac Vice in the amount of $25.00, paid on 10/19/2006, Receipt Number 593992. (jd, ) (Entered: 10/19/2006)
46 NOTICE of Intent To Serve Subpoena. Document ﬁled by Google Inc.. (Raider, Ronald) (Entered: 11/22/2006)
47 AMENDED CASE MANAGEMENT ORDER REGARDING COORDIANTION AND SCHEDULING;the actions penidng in this Court are hereby coordinated for all pre-trial purposes before this Court....; The joint Protective order shall be entered simultaneously with the entry of this Order. Motions for Summary Judgment, if any, shall be ﬁled

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Tuesday, March 11, 2008. The pretrial conference previously scheduled for 3/12/07 is adjourned. (Signed by Judge John E. Sprizzo on 1/3/07) (djc, ) (Entered: 01/09/2007)
48 AMENDED CASE MANAGEMENT ORDER REGARDING COORDINATION AND SCHEDULING; The captioned actions pending in this Court are hereby coordinated for a pre-trial purposes before this Court. These actions shall be referred to herein as "Coordinated Actions". Motions due by 6/9/2007., Pretrial Conference set for 7/26/2007 03:00 PM before Judge John E. Sprizzo. (Signed by Judge John E. Sprizzo on 2/26/07) (djc) (Entered: 02/28/2007)
49 NOTICE of Change of Firm Afﬁliation and Entry of Appearance. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Boni, Michael) (Entered: 04/03/2007)
50 AMENDED CASE MANAGEMENT ORDER REGARDING COORDINATION AND SCHEDULING: Third party discovery due by 4/20/2006, Merits discovery due by 5/12/2008, Disclosure of expert witnesses under Rule 26(a)(2)(A) due by 3/17/2008, Initial expert reports to be exchanged 4/14/2008. Rebuttal experts reports shall be exchanged on 5/5/2008, Expert disposition taken from 5/5/2008 - 6/16/2008. Summary Judgment Motions due by 8/11/2008; responses due 60 days. Responses due 30 days of service of the motion. Pretrial Conference set for 9/24/2007 03:00 PM before Judge John E. Sprizzo. SO ORDERED. (Signed by Judge John E. Sprizzo on 5/17/2007) (jar) (Entered: 05/24/2007)
51 AMENDED CASE MANAGEMENT ORDER REGARDING COORDINATION AND SCHEDULING: Motions for Summary Judgment due by 10/13/2008. Pretrial Conference set for 11/27/2007 at 03:00 PM before Judge John E. Sprizzo. All other deadlines are set forth in this order. (Signed by Judge John E. Sprizzo on 7/20/07) (kco) (Entered: 07/26/2007)
52 AMENDED CASE MANAGEMENT ORDER REGARDING COORDINATION AND SCHEDULING: IT IS HEREBY ORDERED that the above-captioned actions pending in this Court are hereby coordinated for all pre-trial purposes before this Court and as further set forth in this Order. Motions for Summary Judgment due by 12/15/2008. If parties wish to ﬁle motions they shall request a pre-motion conference prior to any ﬁlings. Oppositions to Motions for Summary Judgment shall be ﬁled within 30 days of service of the motion for summary judgment. Merits Discovery due by 9/15/2008. Production of Documents deadline due by 11/26/07. Expert Depositions shall be taken from Monday, 9/8/08 through Monday, 10/20/08. Defendant's Opposition to any Motion for Class Certiﬁcation shall be ﬁled 60 days after the motion for class certiﬁcation has been ﬁled. Plaintiffs' Reply in support of Class Certiﬁcation shall be ﬁled 30 days after the Opposition is ﬁled. All conference previously scheduled in the Coordinated Actions are hereby adjourned. The Pretrial Conference shall take place on Tues., Nov. 18, 2008. (Signed by Judge Kevin Thomas Duffy on 9/28/07)- Part I (tro) (Entered: 10/02/2007)
53 AMENDED CASE MANAGEMENT ORDER REGARDING COORDINATION AND SCHEDULING: The production of documents requests served shall be completed by 1/28/2008. Merit discovery due 11/17/2008. Disclosure of expert witnesses shall be exchanged on 9/22/2008. Initial expert reports shall be exchanged on 10/20/2008. Rebuttal expert reports due 11/10/2008. Expert depositions to be taken from 11/10/2008 through 12/22/2008. Motions for summary judgment due by 2/16/2009. Oppositions to Motion for summary judgment due within 30 days of service of the motion. Plaintiffs' Motion for Class Certiﬁcation due 30 days after the Courts decision with respect to summary judgment. Defendant's Opposition to Motion for Class Certiﬁcation due 60 days after the motion for class certiﬁcation, Plaintiffs' reply in support of Class Certiﬁcation due 30 days after the Opposition is ﬁled. The pretrial conference shall take

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place on 11/18/2008 for the purpose of informing the Court of the status of the case. However, the parties must, in addition, contact the Court to schedule a pre-motion conference before ﬁling any motion. (Signed by Judge Peter K. Leisure for Judge John E. Sprizzo on 11/19/2007) (jar) (Entered: 11/21/2007)
54 AMENDED CASE MANAGEMENT ORDER REGARDING COORDINATION AND SCHEDULING ( Expert Witness List due by 11/24/2008. Discovery due by 1/20/2009. Motions due by 4/16/2009.) Defendant's Opposition to any Motion for Class Certiﬁcation shall be 60 days after the motion for class certiﬁcation shall be ﬁled 60 days after the motion for class certiﬁcation has been ﬁled. Plaintiffs' Reply in support of Class Certiﬁcation shall be ﬁled 30 days after the Opposition is ﬁled. All conferences previously scheduled in the Coordinated Actions are hereby adjourned. So Ordered. (Signed by Judge John E. Sprizzo on 1/29/08) (js) (Entered: 01/30/2008)
55 MOTION to Approve /Notice of Motion for Preliminary Settlement Approval. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman.(Boni, Michael) (Entered: 10/28/2008)
56 DECLARATION of Michael J. Boni and Exhibits in Support re: 55 MOTION to Approve /Notice of Motion for Preliminary Settlement Approval.. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Boni, Michael) (Entered: 10/28/2008)
57 MEMORANDUM OF LAW in Support re: 55 MOTION to Approve /Notice of Motion for Preliminary Settlement Approval.. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Boni, Michael) (Entered: 10/28/2008)
60 MOTION for Daralyn J. Durie to Appear Pro Hac Vice. Document ﬁled by Google Inc. (dle) (Entered: 11/03/2008)
61 MOTION for David J. Silbert to Appear Pro Hac Vice. Document ﬁled by Google Inc. (dle) (Entered: 11/03/2008)
62 MOTION for Joseph C. Gratz to Appear Pro Hac Vice. Document ﬁled by Google Inc. (dle) (Entered: 11/03/2008)
63 MOTION for Melissa J. Miksch to Appear Pro Hac Vice. Document ﬁled by Google Inc.(dle) (Entered: 11/03/2008)
58 STIPULATION AND ORDER FOR AMENDMENT OF PLEADINGS; that pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, the parties to the above-captioned case and to The McGraw-Hill Companies, Inc., et al. v. Google Inc., No. 05 CY 8881, by and through their undersigned counsel, hereby agree that plaintiffs may. (Signed by Judge John E. Sprizzo on 10/29/08) (pl) (Entered: 10/30/2008)
59 SECOND AMENDED COMPLAINT amending 36 Amended Complaint, against Google Inc. Document ﬁled by Association of American Publishers, Inc., Associational Plaintiffs, The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc., Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. Related document: 36 Amended Complaint, ﬁled by The Author's Guild, Betty Miles, Joseph Goulden, Paul Dickson, Herbert Mitgang, Daniel Hoffman.(dle) (Entered: 11/03/2008)
64 ORDER GRANTING PRELIMINARY SETTLEMENT APPROVAL: Accordingly, it is hereby ORDERED as follows: The motion is GRANTED. The Settlement Agreement is hereby preliminarily approved. Unless otherwise speciﬁed, all deﬁned terms herein shall have the same meaning as in the Settlement Agreement. The Settlement Class set forth

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within and two Sub-Classes are provisionally certiﬁed for settlement purposes only. A ﬁnal settlement/fairness hearing shall be held on June 11, 2009, at 1:00 p.m., before the undersigned in Courtroom 14C, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007. The Notice Commencement Date shall be January 5, 2009. The OptOut Deadline shall be May 5, 2009.. (Signed by Judge John E. Sprizzo on 11/14/2008) (jfe) (Entered: 11/17/2008)
Set/Reset Hearings: Settlement Conference set for 6/11/2009 at 01:00 PM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge John E. Sprizzo. (jfe) (Entered: 11/21/2008)
CASHIERS OFFICE REMARK on 63 Motion to Appear Pro Hac Vice, 60 Motion to Appear Pro Hac Vice, 62 Motion to Appear Pro Hac Vice, 61 Motion to Appear Pro Hac Vice in the amount of $100.00, paid on 10/31/2008, Receipt Number 667652. (jd) (Entered: 11/19/2008)
65 MEMORANDUM OF LAW in Opposition //JOINT OPPOSITION by Plaintiffs and Defendant to Claudia Pearson's Motion Requesting Change of Date for Final Fairness Hearing (N.B.: Motion has not yet been ﬁled in the ECF System). Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 12/04/2008)
66 ORDER It is hereby ordered that Claudia Pearsons motion shall be and hereby is denied; and it is further ordered that the Fairness Hearing shall occur on June 11, 2009 at 1:00 p.m. in Courtroom 14C, 500 pearl Street. (Signed by Judge Peter K. Leisure for John E. Sprizzo on 12/9/08) (mme) (Entered: 12/10/2008)
67 MOTION to Approve Claim Forms / Notice of Motion on Consent for Approval of Claim Forms. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc..(Keller, Bruce) (Entered: 12/18/2008)
68 MEMORANDUM OF LAW in Support re: 67 MOTION to Approve Claim Forms / Notice of Motion on Consent for Approval of Claim Forms. / Memorandum of Law in Support of Motion on Consent for Approval of Claim Forms. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 Part 2 of 4, # 2 Part 3 of 4, # 3 Part 4 of 4)(Keller, Bruce) (Entered: 12/18/2008)
69 ORDER APPROVING CLAIM FORMS: granting 67 Motion to Approve Claims Forms. The Motion is GRANTED. The Court approves as to forms attached to the to the Motions as Exhibits B and C, respectively. (Signed by Judge Paul A. Crotty on 12/23/2008) (tve) (Entered: 12/23/2008)
70 NOTICE OF CASE REASSIGNMENT to Judge Denny Chin. Judge John E. Sprizzo is no longer assigned to the case. (mbe) (mbe). (Entered: 01/09/2009)
71 NOTICE of Substitution of Attorney. Old Attorney: Asim Bhansali, New Attorney: Daralyn J. Durie, Address: Durie Tangri Lemley Roberts & Kent LLP, 332 Pine Street, Suite 200, San Francisco, CA, USA 94104, 415-362-6666. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 02/02/2009)
72 NOTICE of Opt-Out of proposed settlement agreement to this case, in both the author and the publisher sub-class. Filed by Joe Landwehr, author and publisher (DBA Ancient Tower Press). (djc) (Entered: 03/23/2009)

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73 MEMO ENDORSEMENT: So ordered on: 71 Notice of Substitution of Attorney, ﬁled by Google Inc. (Signed by Judge Denny Chin on 3/24/09) (cd) (Entered: 03/24/2009)

03/30/2009

81 Objection to Proposed Settlement. (ﬁled by Robert M. Kunstadt). (djc) (Entered: 04/14/2009)

03/31/2009

74 OBJECTION TO PROPOSED SETTLEMENT: Google pursued its copying project in calculated disregard of authors' rights. Its business plan was: "So, sue me". To approve the proposed settlement would vindicate Google's street ethics: that the law is whatever you can grab and get away with. Google's added twist -- its update on the Dickensian street pickpocket -- is that if you take very little from very many people, with a technological efﬁciency unimaginable to Fagan and outsourced at a low cost that he would have envied, you have some real money. Google's case should be referred to the U.S. Attorney for prosecution. Equal Justice demands no less. Filed by Robert M. Kunstadt (jpo) (Entered: 03/31/2009)

04/01/2009

75 ENDORSED LETTER addressed to Judge Denny Chin from Daniel Kornstein dated 3/27/09 re: Request that the Institute ﬁle its brief by 5/5/09. ENDORSEMENT: Approved. ( Brief due by 5/5/2009.) (Signed by Judge Denny Chin on 4/1/09) (cd) (Entered: 04/01/2009)

04/08/2009

76 MOTION for Joseph C. Gratz to Appear Pro Hac Vice. Document ﬁled by Google Inc. (dle) (Entered: 04/09/2009)

04/08/2009

77 MOTION for Daralyn J. Durie to Appear Pro Hac Vice. Document ﬁled by Google Inc. (dle) (Entered: 04/09/2009)

04/09/2009

78 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Dr. Erik H. Fournier dated 3/21/2009 re: Requesting the reimbursement of necessary attorney costs by Google Inc., Defendant, from cause of the authors copyright perception in this procedure in accordance with F.R.C.P. Rule 54 (b) (1) and (2). (jpo) (Entered: 04/09/2009)

04/10/2009

79 ORDER FOR ADMISSION PRO HAC VICE: granting 60 Motion for Daralyn J. Duri to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 4/14/2009) (jfe) (jfe). (Entered: 04/14/2009)

04/14/2009

80 ORDER FOR ADMISSION PRO HAC VICE: granting 62 Motion for Joseph C. Gratz to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 4/14/2009) (jfe) (Entered: 04/14/2009)

04/14/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 79 Order on Motion to Appear Pro Hac Vice, 80 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jfe) (Entered: 04/14/2009)

04/16/2009

82 Objection to Class Action Settlement. (ﬁled by Anthony L. DeWitt, Atty at Law Pro Se here). (djc) (Entered: 04/20/2009)

04/23/2009

83 LETTER addressed to Judge Denny Chin and Mr. McMahon from Linda Tadic dated 4/7/2009 re: Author and member of the Author Class writes to raise objections to the parts of the settlement that will potentially impact how archives and libraries preserve access to orphan works. (tve) (Entered: 04/24/2009)

04/23/2009

84 LETTER addressed to J. Michael McMahon from Hope Ryden dated 4/17/2009 re: Author writes to raise objections to language in the Google Book Settlement. (tve) (Entered: 04/24/2009)

04/23/2009

85 LETTER addressed to J. Michael McMahon from John J. Hubbard dated 4/6/2009 re: Author wishes to opt-out of the proposed settlement and instructs Google not to include

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copies of any of his work, in whole or in part, including but not limited to the list further set forth in this letter in any of its databases. (tve) (Entered: 04/24/2009)
86 LETTER addressed to J. Michael McMahon from Barbara Burke aka Barbara Burke Hubbard dated 4/6/2009 re: Author writes to conﬁrm that she opted-out of the settlement and instruct Google not to include copies of any of her work, in whole or in part, including but not limited to the list further set forth in this letter in any of its databases. (tve) (Entered: 04/24/2009)
92 ORDER re letters requesting a pre-motion conference from proposed interveners, Internet Archive, Lewis Hyde, Harry Lewis, and the Open Access Trust seeking leave to intervene: I have construed their letters as motions to intervene, and the motions are denied. The proposed interveners are, however, free to ﬁle objections to the proposed settlement or amicus briefs, either of which must be ﬁled by the 5/5/09 objection deadline. (Signed by Judge Denny Chin on 4/24/09) (cd) (Entered: 04/30/2009)
87 NOTICE OF APPEARANCE by Daniel Joseph Kornstein on behalf of New York Law School, Institute for Information Law and Policy (Kornstein, Daniel) (Entered: 04/27/2009)
88 NOTICE OF APPEARANCE by Mikaela Ann McDermott on behalf of New York Law School, Institute for Information Law and Policy (McDermott, Mikaela) (Entered: 04/27/2009)
CASHIERS OFFICE REMARK on 77 Motion to Appear Pro Hac Vice, 76 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 04/08/2009, Receipt Number 683670. (jd) (Entered: 04/27/2009)
89 ORDER: Upon consideration of the letters, I will grant approximately a four-month extension, as follows:(1) Paragraph 15 of the Preliminary Approval Order is amended to extend the Opt-Out deadline to September 4, 2009 ('Extended Opt-Out Deadline"). (2) References in Paragraphs 22 and 23 of the Preliminary Approval Order to May 5, 2009 (the original "Opt-Out Deadline") are amended to refer to the Extended Opt-Out Deadline of September 4, 2009. To the extent the Court gave objectors and amici curiae until May 5, 2009 to submit their views to the Court, that date is also extended to September 4, 2009. (3) No other deadlines or provisions set forth in the Settlement Agreement will be affected by this Order. (4) Paragraph 10 of the Preliminary Approval Order is amended to provide that the Final Fairness Hearing will be held on October 7, 2009 at 10:00 a.m. before the undersigned in Courtroom llA, United States District Court for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York, 10007.(5) Class Counsel will promptly (a) post notice of the Extended Opt-Out Deadline and Final Fairness Hearing date at the top of the home page of the ofﬁcial Settlement website, (b)issue a press release to announce these dates, and (c) notify IFRRO and the other major rights organizations that have assisted the Notice Provider. So Ordered. (Signed by Judge Denny Chin on 4/28/09) (js) (Entered: 04/28/2009)
90 LETTER addressed to J. Michael McMahon, Clerk of Court from Lee Killough dated April 20, 2009 re: I am writing to object to one provision of the Google settlement. (rw) (Entered: 04/29/2009)
91 LETTER addressed to J. Michael McMahon, Clerk of Court from Donica Bettanin dated 20 April 2009 re: We wish to object the impending Google Book Settlement, the Fairness Hearing for which is scheduled for 11 June 2009. Our objection is enclosed. (rw) (Entered: 04/29/2009)
93 ENDORSED LETTER addressed to Judge Denny Chin from Jeffrey Pearlman dated

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4/28/2009 re: We write to request permission for Public Knowledge to ﬁle a brief amicus curiae on behalf of itself and other similarly interested amici in the above-captioned case on the issue of the proposed settlement's effects on orphan works-copyrighted works whose owners cannot be located. The brief, in support of neither party, will be no longer than 25 pages, and will be ﬁled no later than May 5,2009, the date set for opt-outs and objections to the proposed settlement agreement. ENDORSEMENT: Approved. The brief shall be ﬁled by the new opt-out date. ( Brief due by 5/5/2009.) (Signed by Judge Denny Chin on 4/30/2009) (jmi) (Entered: 05/01/2009)
94 LETTER addressed to J. Michael McMahon from Mayer Brenner dated 4/24/09 re: Counsel writes to objection to several provisions of the Settlement. (mme) (Entered: 05/01/2009)
95 LETTER addressed to J. Michael McMahon from Shirley A. Young dated 4/23/09 re: Counsel writes to objection to Google scanning or displaying any part of her book and it is so noted on the cover page that all rights reserved including the rights to reproduce this book or parts thereof in any form without prior written permission from the author. (mme) (Entered: 05/01/2009)
96 LETTER addressed to J. Michael McMahon from John Moore dated 4/22/09 re: Counsel objects to the "opt-out" provisions of the settlement and request that the Court reject the settlement unless it is modiﬁed to "opt-in." (mme) (Entered: 05/01/2009)
97 LETTER addressed to Settlement Administrator from Dennis Eddings dated 4/22/09 re: Counsel writes this letter to serve as an ofﬁcial notice that on behalf of his brother David Eddings, he is opting out of the Google Settlement for works by David Eddings, per the attached sheet. (mme) (Entered: 05/01/2009)
98 NOTICE OF APPEARANCE by Joanne E. Zack on behalf of Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman (Zack, Joanne) (Entered: 05/06/2009)
99 MOTION for John W. Davis to Appear Pro Hac Vice. Document ﬁled by David Meininger.(dle) (Entered: 05/08/2009)
100 LIBRARY ASSOCIATION COMMENTS ON THE PROPOSED SETTLEMENT. (tro) (Entered: 05/13/2009)
101 LETTER addressed to J. Michael McMahon from Elanor Wood dated 5/5/09 re: Copies of the opt-out letters signed by authors and estate proprietors, as well as their lists of published works, are available upon request. (tro) (Entered: 05/13/2009)
102 LETTER addressed to Judge Denny Chin from Australian Society of Authors dated 4/29/09 re: Submission to Fairness Hearing, Google books settlement, New York 11 June, by Australian Society of Authors. (tro) (Entered: 05/13/2009)
103 NOTICE of opt out. Document ﬁled by Linda D. Delgado. (djc) Modiﬁed on 5/18/2009 (tro). (tro). (Entered: 05/13/2009)
104 Notice of Opt Out of Habibullah Saleem. (djc) (tro). (Entered: 05/13/2009)
105 NOTICE of opt out of Maryann Mahmoodian. (djc) (tro). (Entered: 05/13/2009)
106 NOTICE of opt out of Linda Kay Jitmoud. (djc) (tro). (Entered: 05/13/2009)
107 NOTICE of Opt Out of Shirley Gavin Anjum. (djc) (tro). (Entered: 05/13/2009)
108 NOTICE of Opt Out of Saaleh E. Bhamjee. (djc) (tro). (Entered: 05/13/2009)
CASHIERS OFFICE REMARK on 99 Motion to Appear Pro Hac Vice in the amount of

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$25.00, paid on 05/06/2009, Receipt Number 687220. (jd) (Entered: 05/14/2009)

05/15/2009

109 ORDER granting 99 Motion for John W. Davis to Appear Pro Hac Vice for class member David Meininger.. (Signed by Judge Denny Chin on 5/15/09) (cd) (Entered: 05/15/2009)

05/15/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 109 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (cd) (Entered: 05/15/2009)

05/15/2009

110 LETTER addressed to the Clerk of Court from Dr. Else Maria Wischermann dated 5/5/09 re: Google settlement agreement (letter in German, no translation provided). (cd) (Entered: 05/15/2009)

05/15/2009

111 Submission To Fairness Hearing, Google Books Settlement, NY 6/11, by Australian Society of Authors, dated 4/29/09. (cd) (Entered: 05/15/2009)

05/22/2009

112 ENDORSED LETTER addressed to Judge Denny Chin from Michael J. Boni dated 5/20/2009 re: We write on behalf of all the settling parties to inform the Court of our position on an issue raised by Your Honor's Order of April 24, 2009. That Order states that the proposed intervenors are "free to ﬁle objections to the proposed settlement or amicus briefs..." (emphasis added). While the April 24 Order does not expressly state that any proposed intervenors who are not also members of the Settlement Class have standing to object, out of an abundance of caution we write now only to state our position that those persons lack such standing. ENDORSEMENT: My 4/24/09 Order does not purport to bestow standing on any persons who do not have standing. SO ORDERED. (Signed by Judge Denny Chin on 5/22/2009) (jmi) Modiﬁed on 5/27/2009 (jmi). (Entered: 05/22/2009)

05/26/2009

113 NOTICE OF APPEAL from 92 Order. Document ﬁled by Lewis Hyde, Harry Lewis, Open Access Trust Inc. Filing fee $ 455.00, receipt number E 688957. (nd) (Entered: 05/26/2009)

05/26/2009

Transmission of Notice of Appeal to the District Judge re: 113 Notice of Appeal. (nd) (Entered: 05/26/2009)

05/26/2009

Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 113 Notice of Appeal. (nd) (Entered: 05/26/2009)

06/01/2009

114 LETTER addressed to J. Michael McMahon, Clerk of Court from A. Michael Noll, Ph. D dated 5/19/09 re: Mr. Noll writes to object to the Google class action settlement. (tro) (Entered: 06/01/2009)

06/01/2009

115 LETTER addressed to J. Michael McMahon, Clerk of Court from Barbara Ann Gorte dated 4/3/09 re: Comments and Objections to Settlement for the Court's Consideration. (tro) (Entered: 06/01/2009)

06/05/2009

116 LETTER addressed to Judge Denny Chin from Takasu Jiro, Chairman of Ryutaikyo, Tokyo, Japan dated (no date provided), Re: As the chairman of a Japanese publishers' association comprising of 98 members, I hereby declare that we oppose to the Settlement so as to protect our publishing tradition from unlawful digitization by Google. (ae) (Entered: 06/05/2009)

06/12/2009

117 The Publishers' Association on Book Distribution, dated 5/18/09. (pl) (Entered: 06/12/2009)

06/15/2009

USCA Case Number 09-2224-cv from the USCA 2nd Circuit assigned to 113 Notice of Appeal ﬁled by Lewis Hyde, Open Access Trust Inc., Harry Lewis. (tp) (Entered: 06/15/2009)

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118 MOTION for James Grimmelman to Appear Pro Hac Vice. Document ﬁled by New York Law School, Institute for Information Law and Policy.(dle) (Entered: 06/25/2009)

07/01/2009

119 LETTER addressed to Judge Denny Chin from Angela EBer, Jurgen Kehrer and Andreas Izquierdo re: Representing more than 500 crime writers from Germany, Austria and Switzerland we as spokesmen for the "SYNDlKAT - Autorengruppe deutschsprachige Kriminalliteratur" are deeply concerned about the unauthorized scanning of literary texts and whole books by the Google cooperation for use in their online library on the internet. This kind of action is a violation of German and European copyright laws that calls for legal punishment. Among the authors concerned are a huge number of writers of the German language whose personal rights and private contracts for their books that they have signed with German publishers are violated by Google. (jmi) (Entered: 07/01/2009)

07/01/2009

CASHIERS OFFICE REMARK on 118 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 06/24/2009, Receipt Number 691944. (jd) (Entered: 07/01/2009)

07/02/2009

120 ORDER, that by letter dated July 2, 2009, a copy of which is attached hereto, the Government advises the Court that it has opened an antitrust investigation into the proposed settlement in this case.The fairness hearing is scheduled for October 7, 2009. The Court intends to conduct the hearing on that date. If the Government wishes to present its views in writing, it must do so by September 18, 2009. The Government may also appear at the hearing to present its views orally. (Signed by Judge Denny Chin on 7/2/09) (pl) (Entered: 07/02/2009)

07/02/2009

121 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION, granting 118 Motion for James Grimmelman to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 7/2/09) (pl) (Entered: 07/02/2009)

07/02/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 121 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (pl) (Entered: 07/02/2009)

07/23/2009

122 ENDORSED LETTER addressed to Judge Denny Chin from R. Emmett McAuliffe dated July 16,2009 re: Pursuant to Your Honor's Individual Practice 2(A), we write on behalf of The Media Exchange Company, Inc. ("TMEC") to request a clariﬁcation of TMEC's right to object to the Settlement as anon-class member and/or ﬁle an amicus curiae brief. Despite not being a class member, TMEC believes it and its customers have an interest in the proceeding. ENDORSEMENT: Application GRANTED. TMEC may object as a non-class member and/or ﬁle an amicus brief. The Court prefers one submission. This is without prejudice to any argument the parities may make that TMEC lacks standing to object. SO ORDERED. (Signed by Judge Denny Chin on 7/23/2009) (jmi) (Entered: 07/23/2009)

07/23/2009

123 LETTER addressed to Clerk of the Court from Claude Almansi-Beguin dated 7/9/09 re: Objections to the Google Book Search Settlement Agreement. (db) (Entered: 07/23/2009)

07/23/2009

124 LETTER addressed to Administrator from John Larry Ray dated 7/12/09 re: Questions regarding the Google lawsuit settlement. (db) (Entered: 07/23/2009)

07/30/2009

133 MOTION for Matthew Christian Schruers to Appear Pro Hac Vice. Document ﬁled by Computer and Communications Industry Association.(dle) (Entered: 08/17/2009)

08/05/2009

125 LETTER addressed to Judge Denny Chin from Andrew J. Imparato dated 7/27/2009 re: Counsel writes on behalf of The American Association of People with Disabilities (AAPD) to respectfully ask that the Court approve the proposed settlement between the Authors Guild and Google in the above captioned case. (tve) (Entered: 08/06/2009)

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126 LETTER addressed to Judge Denny Chin from Kathy Rowland dated 8/3/2009 re: Counsel writes to inform the Court that an objection is made to the proposed settlement. (tve) (Entered: 08/06/2009)

08/05/2009

127 LETTER from Robert Pullman dated 7/30/2009 re: The Chair of the Australian Society of Authors writes to inform the the Court that they welcomes the agreement and does not oppose it. (tve) (Entered: 08/06/2009)

08/07/2009

128 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Prof. Dr. Thomas Meir dated 8/1/2009 re: I want to object to the settlement as actually proposed that there is no choice to accept the digitalization of my works under the condition that they are made accessible on an open access basis only. (jpo) (Entered: 08/07/2009)

08/07/2009

129 LETTER addressed to Judge Denny Chin from John B. Forkenbrock dated 8/7/2009 re: I request the Court's permission to submit this letter in support of ﬁnal settlement approval in the aforementioned case. (jpo) (Entered: 08/07/2009)

08/12/2009

130 LETTER addressed to Judge Denny Chin from Brent Wilkes, LULAC National Executive Director, dated 8/10/2009 re: The League of United Latin American Citizens wishes to formally submit this letter as amicus curiae in support of the ﬁnal settlement approval. (tve) (Entered: 08/12/2009)

08/13/2009

131 LETTER addressed to Judge Denny Chin from Scott James aka Kemble Scott, author of the novels SoMa and The Sower dated August 10, 2009 re: I'm a published author whose work is at stake in the proposed settlement for The Authors Guild et al., vs. Google, Inc. I'm not a lawyer, so you'll have to excuse my lack of legalese, but... this deal stinks. Please put an end to it. It's wrong on so many levels. (rw) (Entered: 08/14/2009)

08/13/2009

132 LETTER addressed to Judge Denny Chin from Scott James dated 8/10/09 re: I'm a published author whose work is at stake in the proposed settlement for The Authors Guild, et al., vs. Google, Inc. I object to The Authors Guild, et al., vs. Google, Inc. settlement. Please intervene and stop it. (pl) (Entered: 08/14/2009)

08/17/2009

CASHIERS OFFICE REMARK on 133 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 07/30/2009, Receipt Number 696015. (jd) (Entered: 08/17/2009)

08/17/2009

134 LETTER addressed to J. Michael McMahon from Mary Croughan, Henry Powell et al, dated 8/13/09 re: Not opposed to the settlement. (cd) (Entered: 08/18/2009)

08/17/2009

135 Objection To Proposed Class Action Settlement On Behalf Of Author's Rights Class Member Ian Franckenstein, dated 8/13/09. (cd) (Entered: 08/18/2009)

08/18/2009

136 MANDATE of USCA WITHDRAWING APPEAL (Certiﬁed Copy) as to 113 Notice of Appeal ﬁled by Lewis Hyde, Open Access Trust Inc., Harry Lewis USCA Case Number 09-2224-cv....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA. Certiﬁed: 8/17/2009. (nd) (Entered: 08/18/2009)

08/18/2009

Transmission of USCA Mandate/Order to the District Judge re: 136 USCA Mandate Withdrawing Appeal,. (nd) (Entered: 08/18/2009)

08/18/2009

***REJECTION OF ATTEMPTED PAPER FILING IN ECF CASE. The following document(s) Objection to propose class action settlement on behalf of author's rights class member Ian Franckenstein/ by Attorney Jerome M. Garchik, was rejected by the Clerk's Ofﬁce and must be FILED ELECTRONICALLY on the Court's ECF System. (eef) (Entered: 08/18/2009)

08/19/2009

137 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 133 Motion for Matthew Christian Schruers to Appear Pro Hac Vice. Matthew Christian

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Schruers is admitted to practice pro hac vice as counsel for Computer and Communications Industry Association in the above captioned case in this action. Counsel shall forward the pro hac vice fee to the Clerk of Court. (Signed by Judge Denny Chin on 8/18/09) (tro) (Entered: 08/19/2009)
138 LETTER addressed to Denny Chin from Gregory Cendana dated 8/17/2009 re: The United States Student Association (USSA) hereby requests this court's permission to submit this letter as an amicus curiae supporting ﬁnal settlement approval in the abovereferenced case. (tve) (Entered: 08/19/2009)
139 LETTER addressed to Judge Denny Chin from John G. Flores dated 8/17/2009 re: The United States Distance Learning Association (USDLA) requests the court's permission to submit this letter as an amicus curiae supporting ﬁnal settlement approval in The Authors Guild et al. v. Google, Inc, Case. (tve) (Entered: 08/19/2009)
140 NOTICE of Intent to appear. I, Scott E. Gant, hereby notify the Court of my intent to appear at the Fairness Hearing in the above-captioned case, currently scheduled for October 7, 2009. As Explained in my Objection, being ﬁled contemporaneously with this Notice, I will be appearing in my individual capacity, as a member of the proposed Author Sub-Class. (mbe) (Entered: 08/20/2009)
141 Objection of Scott E. Gant to proposed settlement, and to certiﬁcation of the proposed settlement class and sub-classes. (mbe) (Entered: 08/20/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 137 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (tro) (Entered: 08/21/2009)
142 NOTICE of Urban Libraries Council Comments on the Proposed Settlement. (mbe) (Entered: 08/20/2009)
143 Objection of Scott E. Gant to proposed settlement, and to certiﬁcation of the proposed settlement class and sub-classes. (jfe) (Entered: 08/20/2009)
144 LETTER addressed to Judge Denny Chin from E. Ted Fox dated 8/19/2009 re: Counsel request the court's permission to submit this letter as an amicus curiae supporting ﬁnal settlement approval in the above-referenced case. (jfe) (Entered: 08/20/2009)
154 MOTION for Jennifer Lynch to Appear Pro Hac Vice. Document ﬁled by Class Member Objectors.(dle) (Entered: 08/27/2009)
156 MOTION for Cindy Cohn to Appear Pro Hac Vice. Document ﬁled by Class Member Objectors.(dle) (Entered: 08/27/2009)
145 FILING ERROR - DEFICIENT DOCKET ENTRY - (WRONG FILER SELECTED) NOTICE OF APPEARANCE by Joseph Solomon Hall on behalf of The Author's Guild (Hall, Joseph) Modiﬁed on 8/25/2009 (lb). (Entered: 08/24/2009)
146 FILING ERROR - DEFICIENT DOCKET ENTRY - NOTICE OF APPEARANCE by Joseph Solomon Hall on behalf of Harold Bloom (Hall, Joseph) Modiﬁed on 8/26/2009 (jar). (Entered: 08/25/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Joseph Hall to RE-FILE Document 146 Notice of Appearance. ERROR(S): Each individual plaintiff listed on the Notice of Appearance must be added on to the docket. (jar) (Entered: 08/26/2009)
147 NOTICE OF APPEARANCE by Joseph Solomon Hall on behalf of Elliot Abrams, Charlotte Allen, Phyllis Ammons, Richard Armey, Jacques Barzun, Nicholas Basbanes,

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Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, Roger Simon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Harold Bloom (Hall, Joseph) (Entered: 08/26/2009)
151 MOTION for David Nimmer to Appear Pro Hac Vice. Document ﬁled by Amazon.com, Inc.(dle) (Entered: 08/27/2009)
152 MOTION for Alexander F. Wiles to Appear Pro Hac Vice. Document ﬁled by Amazon.com, Inc.(dle) (Entered: 08/27/2009)
148 ENDORSED LETTER addressed to Judge Denny Chin from Jennifer B. Caplan dated 8/26/2009 re: Requesting permission for Sony Electronics Inc. to ﬁle an amicus curiae brief in support of approval of the proposed settlement in this matter. ENDORSEMENT: Application granted, but the amicus brief must be ﬁled by September 4, 2009. (Signed by Judge Richard J. Sullivan on 8/27/2009) (jpo) (Entered: 08/27/2009)
149 LETTER addressed to Judge Denny Chin from Kenneth L. Frazier dated 8/14/2009 re: Requesting that the Court approve the settlement agreement among the parties in this case. (jpo) (Entered: 08/27/2009)
150 LETTER addressed to Judge Denny Chin from E. Ted Fox dated 8/19/2009 re: The Court should approve the Settlement in such a manner as to maximize beneﬁts to the public and to create a platform for similar developments relating to photo imaging. (jpo) (Entered: 08/27/2009)
153 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Yin Po Tschang re: Digitization is good. Google has the freedom to do whatever it wants. But it has no right to impose a new principle of law on us, especially one that goes against the spirit and letter of the principle of common heritage of mankind. (jpo) (Entered: 08/27/2009)
155 LETTER addressed to Judge Denny Chin from Sallie Lowenstein dated 8/17/2009 re: Requesting that the Court does not approve the settlement and hence deny Google permission to change how ownership of intellectual property is protected through a settlement that is so dense that lawyers can't agree on what it means and which is clearly close to incomprehensible to the average author. (jpo) (Entered: 08/27/2009)
157 LETTER addressed to Judge Denny Chin from Jonathan Brown dated 8/14/2009 re: We believe the proposed settlement will offer beneﬁts to users of content in colleges and universities large and small. We hope that the proposed settlement will be approved.(jpo) (Entered: 08/27/2009)
158 LETTER addressed to Judge Denny Chin from Susan Benton dated 8/19/2009 re: Requesting that the Court require the parties to address the issues raised in this document before approving the proposed settlement. (jpo) (Entered: 08/27/2009)
CASHIERS OFFICE REMARK on 154 Motion to Appear Pro Hac Vice, 156 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 08/20/2009, Receipt Number 697871. (jd) (Entered: 08/27/2009)
CASHIERS OFFICE REMARK on 151 Motion to Appear Pro Hac Vice, 152 Motion to

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Appear Pro Hac Vice in the amount of $50.00, paid on 08/26/2009, Receipt Number 698403. (jd) (Entered: 08/27/2009)

08/28/2009

159 LETTER addressed to Judge Denny Chin from Jeanine Varner, Ph.D., Provost, Abilene Christian Inversity, dated August 26, 2009 re: We, the undersigned, request your permission to submit this letter as an amicus curiae in support of ﬁnal settlement approval in the above case. (rw) (Entered: 08/28/2009)

08/28/2009

160 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon, from Arthur Ramous dated August 21, 2009 re: I'm staying in the Settlement; however I have the following comment to make. (rw) Modiﬁed on 8/28/2009 (rw). (Entered: 08/28/2009)

08/28/2009

161 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Virginia Aronson dated 8/19/2009 re: I am writing to ﬁle my objection to the settlement by Google Books with copyright holders (case NO 05CV8136 (SDNY). I am a writer with more than 30 titles for which I am the author or coauthor. Two of these titles have already been scanned and added to Google's electronic database without my knowledge or permission. I am the copyright holder in both cases. I object to this infringement of copyright and I object to the settlement on my behalf undertaken without my knowledge. (rw) (Entered: 08/28/2009)

08/28/2009

162 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Erika Mailman dated August 21, 2009 re: I'm writing to object to, and express my horror at, the Google Book Settlement currently on Judge Denny Chin's desk. (rw) (Entered: 08/28/2009)

08/31/2009

163 NOTICE OF APPEARANCE by Alexandra A. E. Shapiro on behalf of Harrasowitz, Media24, Studentlitteratur AB, Norstedts Forlagsgrupp AB, Norstedts Kartor AB, Leopard Forlag AB, Borsenverein des Deutschen Buchhandels, Schweizer Buchhandler - und Verleger-Verband SBVV, Hauptverband des Osterreichischen Buchhandels, Svenska Forlaggareforeningen (Shapiro, Alexandra) (Entered: 08/31/2009)

08/31/2009

164 NOTICE OF APPEARANCE by Daniel J. Fetterman on behalf of Consumer Watchdog (Fetterman, Daniel) (Entered: 08/31/2009)

08/31/2009

165 NOTICE OF APPEARANCE by Peter Jonathan Toren on behalf of Consumer Watchdog (Toren, Peter) (Entered: 08/31/2009)

08/31/2009

166 NOTICE OF APPEARANCE by Cynthia S. Arato on behalf of Harrasowitz, Media24, Studentlitteratur AB, Norstedts Forlagsgrupp AB, Norstedts Kartor AB, Leopard Forlag AB, Borsenverein des Deutschen Buchhandels, Schweizer Buchhandler - und VerlegerVerband SBVV, Hauptverband des Osterreichischen Buchhandels, Svenska Forlaggareforeningen (Arato, Cynthia) (Entered: 08/31/2009)

08/31/2009

167 Objection To Proposed Settlement. Document ﬁled by Harrasowitz, Media24, Studentlitteratur AB, Norstedts Forlagsgrupp AB, Norstedts Kartor AB, Leopard Forlag AB, Borsenverein des Deutschen Buchhandels, Schweizer Buchhandler - und VerlegerVerband SBVV, Hauptverband des Osterreichischen Buchhandels, Svenska Forlaggareforeningen. (Shapiro, Alexandra) (Entered: 08/31/2009)

08/31/2009

168 DECLARATION of Barbara Krauss in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Harrasowitz. (Shapiro, Alexandra) (Entered: 08/31/2009)

08/31/2009

169 DECLARATION of Ashoek Adhikari in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Media24. (Attachments: # 1 Appendix Appendix A)(Shapiro, Alexandra) (Entered: 08/31/2009)

08/31/2009

170 DECLARATION of Jerker Fransson in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Studentlitteratur AB. (Shapiro, Alexandra)

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171 DECLARATION of Maria Hamrefors in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Norstedts Forlagsgrupp AB, Norstedts Kartor AB. (Shapiro, Alexandra) (Entered: 08/31/2009)

172 DECLARATION of Dan Israel in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Leopard Forlag AB. (Shapiro, Alexandra) (Entered: 08/31/2009)

173 ENDORSED LETTER addressed to Judge Denny Chin from John B. Morris, Jr. dated 8/28/2009 re: Counsel writes on behalf of CDT, to request permission for CDT to ﬁle a brief amicus curiae, to be ﬁled in support of neither party, will not exceed 25 pages, and will be ﬁled by 9/4/2009. ENDORSEMENT: Approved. (Signed by Judge Denny Chin on 8/31/2009) (tve) (Entered: 08/31/2009)

174 NOTICE OF APPEARANCE by Theodore Conrad Max on behalf of Federal Republic of Germany (Max, Theodore) (Entered: 08/31/2009)

175 DECLARATION of Christian Sprang in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Borsenverein des Deutschen Buchhandels. (Attachments: # 1 Appendix Pages 11-20 of Sprang Declaration, # 2 Exhibit A (1 of 4), # 3 Exhibit A (2 of 4), # 4 Exhibit A (3 of 4), # 5 Exhibit A (4 of 4), # 6 Exhibit B (1 of 4), # 7 Exhibit B (2 of 4), # 8 Exhibit B (3 of 4), # 9 Exhibit B (4 of 4), # 10 Exhibit C, # 11 Exhibit D (1 of 4), # 12 Exhibit D (2 of 4), # 13 Exhibit D (3 of 4), # 14 Exhibit D (4 of 4), # 15 Exhibit E, # 16 Exhibit F (1 of 4), # 17 Exhibit F (2 of 4), # 18 Exhibit F (3 of 4), # 19 Exhibit F (4 of 4), # 20 Exhibit G, # 21 Exhibit H, # 22 Exhibit I, # 23 Exhibit J, # 24 Exhibit K)(Shapiro, Alexandra) (Entered: 08/31/2009)

176 DECLARATION of Dani Landolf in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Schweizer Buchhandler - und Verleger-Verband SBVV. (Shapiro, Alexandra) (Entered: 08/31/2009)

177 DECLARATION of Inge Kralupper in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Hauptverband des Osterreichischen Buchhandels. (Attachments: # 1 Exhibit A)(Shapiro, Alexandra) (Entered: 08/31/2009)

178 DECLARATION of Kristina Ahlinder in Support re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Svenska Forlaggareforeningen. (Attachments: # 1 Exhibit A, # 2 Exhibit B (1 of 4), # 3 Exhibit B (2 of 4), # 4 Exhibit B (3 of 4), # 5 Exhibit B (4 of 4), # 6 Exhibit C)(Shapiro, Alexandra) (Entered: 08/31/2009)

179 MEMORANDUM OF LAW in Opposition to the Settlement Proposal on Behalf of the Federal Republic of Germany. Document ﬁled by Federal Republic of Germany. (Max, Theodore) (Entered: 08/31/2009)

180 DECLARATION of Ministerialdirigent Dr. Johannes Christian Wichard in Opposition re: 179 Memorandum of Law in Opposition. Document ﬁled by Federal Republic of Germany. (Max, Theodore) (Entered: 08/31/2009)

183 ENDORSED LETTER addressed to Judge Denny Chin from Hadrian R. Katz dated 8/31/2009 re: Counsel respectfully seek leave from the Court to ﬁle, in addition, an amicus brief on behalf of the Open Book Alliance, a coalition of diverse organizations including Amazon.com, Inc., The American Society of Journalists and Authors, The Council of Literary Magazines and Presses, Microsoft Corporation, The New York Library Association, Small Press Distribution, The Special Libraries Association, and Yahoo! Inc., as well as the Internet Archive. With the Court's permission, that amicus

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brief as well will be ﬁled by the September 4, 2009 objection deadline. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge Denny Chin on 8/31/2009) (jfe) (Entered: 09/01/2009)

08/31/2009

233 MOTION for Michael John Guzman to Appear Pro Hac Vice. Document ﬁled by Harold Bloom, Elliot Abrams, Charlotte Allen, Phyllis Ammons, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, Roger Simon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo.(dle) (Entered: 09/03/2009)

08/31/2009

370 LETTER addressed to Ofﬁce of the Clerk from Ian Muller dated 8/31/09 re: Koninklijke Van Gorcum B.V. objects to Settlement Agreement. Document ﬁled by Koninklijke Van Gorcum B.V..(dle) (Entered: 09/10/2009)

09/01/2009

181 NOTICE OF APPEARANCE by Alexandra A. E. Shapiro on behalf of Czernin Verlag (Shapiro, Alexandra) (Entered: 09/01/2009)

09/01/2009

182 NOTICE OF APPEARANCE by Cynthia S. Arato on behalf of Czernin Verlag (Arato, Cynthia) (Entered: 09/01/2009)

09/01/2009

184 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU (Joinder) NOTICE of Joinder re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Czernin Verlag. (Arato, Cynthia) Modiﬁed on 9/2/2009 (jar). (Entered: 09/01/2009)

09/01/2009

185 FILING ERROR - DEFICIENT DOCKET ENTRY - (LINKED TO A DEFICIENT DOCKET ENTRY, SEE DOCUMENT #220) - DECLARATION of Benedikt Foeger in Support re: 184 Notice (Other), 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Czernin Verlag. (Arato, Cynthia) Modiﬁed on 9/8/2009 (lb). (Entered: 09/01/2009)

09/01/2009

186 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Harrasowitz, Studentlitteratur AB, Norstedts Forlagsgrupp AB, Norstedts Kartor AB, Leopard Forlag AB, Borsenverein des Deutschen Buchhandels, Schweizer Buchhandler - und Verleger-Verband SBVV, Hauptverband des Osterreichischen Buchhandels, Svenska Forlaggareforeningen, Czernin Verlag.(Arato, Cynthia) (Entered: 09/01/2009)

09/01/2009

187 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Naspers Ltd. as Corporate Parent. Document ﬁled by Media24.(Arato, Cynthia) (Entered: 09/01/2009)

09/01/2009

188 LETTER addressed to Judge Denny Chin from Robert Cooper Ramo dated 8/31/2009 re: In light of the objections set within, the Institute requests that the Court decline to approve the GBS as currently drafted. (jfe) (Entered: 09/01/2009)

09/01/2009

189 LETTER addressed to Judge Colleen McMahon from Martine Schaap dated 8/27/2009 re: We (Uitgeverij Ploegsma BV) are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jfe) (Entered: 09/01/2009)

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190 LETTER addressed to Judge Colleen McMahon from Barbel Dorweiler dated 8/27/2009 re: We (Queridos Childrens Books ) are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

191 LETTER addressed to Judge Colleen McMahon from Manja Heerze dated 8/27/2009 re: We (Uitgeverij Leopold BV ) are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

192 LETTER addressed to Sir Michael McMahon from Mark Pieters dated 8/27/2009 re: We (Em. Queridos Uitgeverij B.V ) are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

193 LETTER addressed to Sir Michael McMahon from Paul Roosenstein dated 8/27/2009 re: We, SWP publisher, are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections set forth within to this Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

194 LETTER addressed to Sir Michael McMahon from Mark Pieters dated 8/27/2009 re: We (Athenaeum - Polak & Van Gennep) are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

195 LETTER addressed to Sir Michael McMahon from Vic Van de Reijt dated 8/27/2009 re: We (Nijgh & Van Ditmar) are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

196 LETTER addressed to Sir Michael McMahon from Jerker Nilsson dated 8/28/2009 re: We (Liber AB, herein after called "Liber") are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. (jfe) (Entered: 09/01/2009)

09/01/2009

197 NOTICE OF APPEARANCE by David A. Zapolsky on behalf of Amazon.com, Inc. (Zapolsky, David) (Entered: 09/01/2009)

09/01/2009

198 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Amazon.com, Inc..(Zapolsky, David) (Entered: 09/01/2009)

09/01/2009

199 LETTER addressed to Mr. McMahon from Peter Van Haaften dated 8/27/2009 re: Counsel writes to make the following objections and comments set forth within to the Google Book Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

200 LETTER addressed to Mr. McMahon from Peter Van Haaften dated 8/27/2009 re: Counsel writes to make the following objections and comments set forth within to the Google Book Settlement. (jfe) (Entered: 09/01/2009)

09/01/2009

201 LETTER addressed to Mr J. Michael McMahon from Miss Lynne Garner dated 8/27/2009 re: Counsel writes to object to the Google Book Settlement.. (jfe) (Entered: 09/01/2009)

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202 LETTER addressed to Judge Denny Chin from Scott James dated 8/27/2009 re: For all of the reasons set forth within, Counsel objects to The Authors Guild, et al., vs. Google, Inc. settlement. Please intervene and stop it.(jfe) (Entered: 09/01/2009)
203 NOTICE OF APPEARANCE by Andrew C. DeVore on behalf of Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden (DeVore, Andrew) (Entered: 09/01/2009)
204 NOTICE OF APPEARANCE by Shirley Othmana Saed on behalf of The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr (Saed, Shirley) (Entered: 09/01/2009)
205 NOTICE OF APPEARANCE by Amin S. Kassam on behalf of Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden (Kassam, Amin) (Entered: 09/01/2009)
206 Objection of Amazon.com, Inc. to Proposed Settlement. Document ﬁled by Amazon.com, Inc.. (Zapolsky, David) (Entered: 09/01/2009)
207 DECLARATION of David Nimmer in Support re: 206 Objection (non-motion). Document ﬁled by Amazon.com, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Zapolsky, David) (Entered: 09/01/2009)
208 NOTICE of Intent to Appear by Amazon.com, Inc. re: 206 Objection (non-motion). Document ﬁled by Amazon.com, Inc.. (Zapolsky, David) (Entered: 09/01/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Cynthia Arato to RE-FILE Document 184 Notice (Other). Use the event type Joinder found under the event list Other Documents. (jar) (Entered: 09/02/2009)
232 MOTION for Edwin C. Komen to Appear Pro Hac Vice. Document ﬁled by Federal Republic of Germany.(dle) (Entered: 09/03/2009)
209 Objection to Proposed Settlement. Document ﬁled by Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden. (DeVore, Andrew) (Entered: 09/02/2009)
210 DECLARATION of Annie Guthrie on Behalf of Arlo Guthrie in Support re: 209 Objection (non-motion). Document ﬁled by Arlo Guthrie. (DeVore, Andrew) (Entered: 09/02/2009)
211 DECLARATION of Julia Wright in Support re: 209 Objection (non-motion). Document ﬁled by Julia Wright. (DeVore, Andrew) (Entered: 09/02/2009)
212 DECLARATION of Catherine Ryan Hyde in Support re: 209 Objection (non-motion). Document ﬁled by Catherine Ryan Hyde. (DeVore, Andrew) (Entered: 09/02/2009)
213 DECLARATION of Eugene Linden in Support re: 209 Objection (non-motion). Document ﬁled by Eugene Linden. (DeVore, Andrew) (Entered: 09/02/2009)
214 DECLARATION of Laura Leslie on Behalf of the Estate of Philip K. Dick in Support re: 209 Objection (non-motion). Document ﬁled by Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden. (DeVore, Andrew) (Entered: 09/02/2009)
215 DECLARATION of Andrew C. DeVore in Support re: 209 Objection (non-motion). Document ﬁled by Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden. (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit B3, # 5 Exhibit B4, # 6 Exhibit B5, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15 Exhibit K, # 16 Exhibit L) (DeVore, Andrew) (Entered: 09/02/2009)

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216 ENDORSED LETTER addressed to Judge Denny Chin from Daniel Fetterman dated 9/1/2009 re: request permission to ﬁle an amicus curiae brief, and to appear at the hearing, to address certain antitrust and copyright concerns with the proposed settlement agreement in this proceeding. ENDORSEMENT: This application is granted, but in light of the volume of materials being submitted to the Court, I would suggest that a 25-page brief would be more effective than a 40-page brief. As for permission to speak at the hearing, the Court will address this question in a future order. We need to see how many requests there are to speak. (Signed by Judge Denny Chin on 9/2/2009) (jar) (Entered: 09/02/2009)
217 ORDER: The deadline for ﬁling objections and amicus curiae briefs in this case is hereby extended to 10:00 a.m. EST on Tuesday, September 8, 2009. Objectors and amici are also reminded that they are required to send a courtesy copy of any documents ﬁled electronically to my Chambers. (Brief due by 9/8/2009.) (Signed by Judge Denny Chin on 9/2/2009) (jar) (Entered: 09/02/2009)
218 Objection to Proposed Settlement. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit E)(Saed, Shirley) (Entered: 09/02/2009)
219 JOINDER to join re: 167 Objection (non-motion), Objection (non-motion). Document ﬁled by Czernin Verlag.(Arato, Cynthia) (Entered: 09/02/2009)
220 DECLARATION of Benedikt Foeger re: 219 Joinder, 167 Objection (non-motion), Objection (non-motion)., DECLARATION of Benedikt Foeger in Support. Document ﬁled by Czernin Verlag. (Arato, Cynthia) (Entered: 09/02/2009)
221 LETTER addressed to Ofﬁce of the Clerk J. Michael McMahon from Uitgeverij Balans dated 8/27/09 re: The hearing in October 2009 regarding the Google settlement. (pl) (Entered: 09/02/2009)
222 LETTER addressed to Michael McMahon, Clerk of Court from Uitgeverij Agon dated 8/27/09 re: The hearing in October 2009 regarding the Google settlement. We would like to draw your attention to the copyrights of the Dutch books owned by our publishing house which appear to be included in the settlement reached between Google and the Authors Guild and Association of American Publishers. (pl) (Entered: 09/02/2009)
223 LETTER addressed to J. Michael McMahon, Clerk of Court from Uitgeverij De Arbeiderspers dated 8/27/09 re: The hearing in October 2009 regarding the Google settlement. (pl) (Entered: 09/02/2009)
224 LETTER addressed to J. Michael McMahon, Clerk of Court from Uitgeverij Singel Pockets dated 8/27/09 re: The hearing in October 2009 regarding the Google settlement. (pl) (Entered: 09/02/2009)
225 LETTER addressed to Judge Denny Chin from Michael A. Banks dated 9/1/2009 re: Author writes to request this court's permission to submit this letter as an amicus curiae supporting ﬁnal settlement approval. (tve) (Entered: 09/02/2009)
226 LETTER addressed to Judge Denny Chin from Filomena Periera re: Author writes requesting this Court's permission to submit this letter as an amicus curiae supporting ﬁnal settlement approve in the above referenced case. (tve) (Entered: 09/02/2009)
227 ENDORSED LETTER addressed to Judge Denny Chin from Matthew D. Ingber dated 9/2/2009 re: The Amici respectfully request that the Court grant them leave to ﬁle a brief

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amicus curiae. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. (Signed by Judge Denny Chin on 9/2/2009) (tve) (Entered: 09/02/2009)
228 ORDER FOR ADMISSION PRO HAC VICE: granting 151 Motion for David Nimmer to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 9/2/2009) (tve) (Entered: 09/02/2009)
229 ORDER FOR ADMISSION PRO HAC VICE: granting 152 Motion for Alexander F. Wiles to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 9/2/2009) (tve) (Entered: 09/02/2009)
230 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION: granting 154 Motion for Jennifer Lynch to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 9/2/2009) (tve) (Entered: 09/02/2009)
231 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION: granting 156 Motion for Cindy Cohn to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 9/2/2009) (tve) (Entered: 09/02/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 229 Order on Motion to Appear Pro Hac Vice, 231 Order on Motion to Appear Pro Hac Vice, 228 Order on Motion to Appear Pro Hac Vice, 230 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (tve) (Entered: 09/02/2009)
266 MOTION for John B. Morris, Jr. to Appear Pro Hac Vice. Document ﬁled by Amicus Curaie..(mro) (Entered: 09/08/2009)
428 ORDER: The Court has received requests for pre-motion conferences by the American Society of Media Photographers, Inc., the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photographers Association, Joel Meyerowitz, Dan Budnik, Peter Turner, and Lou Jacobs, Jr., seeking leave to intervene in this action. I have construed their letters as motions to intervene and the motions are denied. The proposed interveners are free to ﬁle objections to the proposed settlement, but they must do so by the September 4, 2009 deadline. (Signed by Judge Denny Chin on 9/2/2009) (jar) (Entered: 09/10/2009)
506 LETTER addressed to J. Michael McMahon from Mai Spijkers dated 8/26/2009 re: We Prometheus/Bert Bakker are writing to you in regards to the propose settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and Objections to this Settlement. (jmi) (Entered: 09/11/2009)
234 NOTICE OF APPEARANCE by Joseph Solomon Hall on behalf of Ishmael Jones, Wendy Shalit, American Society of Journalists and Authors, Charlotte Allen, Harold Bloom, Elliot Abrams, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, Roger Simon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo (Hall, Joseph) (Entered: 09/03/2009)

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235 NOTICE OF APPEARANCE by Katherine B Forrest on behalf of DC Comics (Forrest, Katherine) (Entered: 09/03/2009)

09/03/2009

CASHIERS OFFICE REMARK on 233 Motion to Appear Pro Hac Vice,,, in the amount of $25.00, paid on 08/31/2009, Receipt Number 698602. (jd) (Entered: 09/03/2009)

09/03/2009

236 NOTICE OF APPEARANCE by Mark Lloyd Silverstein on behalf of DC Comics (Silverstein, Mark) (Entered: 09/03/2009)

09/03/2009

237 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. E.C. Publications, Inc., Time Warner Communications Inc. and Warner Communications Inc as Corporate Parents. Document ﬁled by DC Comics.(Forrest, Katherine) (Entered: 09/03/2009)

09/03/2009

238 Objection to the Proposed Settlement Agreement. Document ﬁled by DC Comics. (Forrest, Katherine) (Entered: 09/03/2009)

09/03/2009

239 BRIEF Amicus Curiae. Document ﬁled by New York Law School, Institute for Information Law and Policy.(Grimmelmann, James) (Entered: 09/03/2009)

09/03/2009

240 NOTICE OF APPEARANCE by Thomas Cort Rubin on behalf of Microsoft Corporation (Rubin, Thomas) (Entered: 09/03/2009)

09/04/2009

298 ORDER. The Electronic Privacy Information Center moves, pursuant to FRCP 24(b), to intervene in this action. The motion is denied. This case was ﬁled some four years ago and has been conditionally settled; it is simply too late to permit new parties into the case. EPIC is free to ﬁle an objections to the proposed settlement, but it must do so by 10:00 a.m. EST on September 8, 2009 (Signed by Judge Denny Chin on 9/4/09) (djc) (Entered: 09/08/2009)

09/04/2009

304 MOTION for Philip Roberts to Appear Pro Hac Vice. Document ﬁled by Canadian Standard Association, Paul Dickson, Joseph Goulden, Association of American Publishers, Inc., Associational Plaintiffs, The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc., The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman.(mro) (Entered: 09/09/2009)

09/07/2009

241 Amicus Curiae APPEARANCE entered by Nelson E. Roth on behalf of Cornell University. (Attachments: # 1 Amicus Curiae Letter from Cornell University)(Roth, Nelson) (Entered: 09/07/2009)

09/08/2009

242 NOTICE OF APPEARANCE by Nidhi Yadava on behalf of Hachette Livre SA, Librarie Arthme Fayard SA, Dunod Editeur SA, Les Editions Hatier SNC, Editions Larousse SAS, Editorial Salvat SL, Grupo Anaya SA, Algaida Editores, S.A., Alianza Editorial, S.A., Edicions Xerais De Galicia, S.A., Editorial Barcanova, S.A., Larousse Editorial, S.L, Grupo Editorial Bruno, S.L., Edelsa Grupo Didascalia, S.A., Hachette UK Limited (Yadava, Nidhi) (Entered: 09/08/2009)

09/08/2009

243 NOTICE OF APPEARANCE by Robert C. Micheletto on behalf of Hachette Livre SA, Librarie Arthme Fayard SA, Dunod Editeur SA, Les Editions Hatier SNC, Editions Larousse SAS, Editorial Salvat SL, Grupo Anaya SA, Algaida Editores, S.A., Alianza Editorial, S.A., Edicions Xerais De Galicia, S.A., Editorial Barcanova, S.A., Larousse Editorial, S.L, Grupo Editorial Bruno, S.L., Edelsa Grupo Didascalia, S.A., Hachette UK Limited (Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

244 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette, S.A. as Corporate Parent. Document ﬁled by Hachette Livre SA.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

245 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre, S.A as Corporate Parent. Document ﬁled by Librarie Arthme Fayard SA.(Micheletto,

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Robert) (Entered: 09/08/2009)

09/08/2009

246 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre, S.A. as Corporate Parent. Document ﬁled by Dunod Editeur SA.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

247 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre, S.A. as Corporate Parent. Document ﬁled by Les Editions Hatier SNC.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

248 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre, S.A. as Corporate Parent. Document ﬁled by Editions Larousse SAS.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

249 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre Espana, S.A.U. as Corporate Parent. Document ﬁled by Grupo Anaya SA.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

250 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre Espana, S.A.U. as Corporate Parent. Document ﬁled by Editorial Salvat SL.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

251 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Grupo Anaya, S.A. as Corporate Parent. Document ﬁled by Algaida Editores, S.A..(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

252 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Grupo Anaya, S.A. as Corporate Parent. Document ﬁled by Alianza Editorial, S.A..(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

253 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre, S.A. as Corporate Parent. Document ﬁled by Edelsa Grupo Didascalia, S.A..(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

254 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Grupo Anaya, S.A. as Corporate Parent. Document ﬁled by Edicions Xerais De Galicia, S.A..(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

255 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Grupo Anaya, S.A. as Corporate Parent. Document ﬁled by Editorial Barcanova, S.A..(Micheletto, Robert) (Entered: 09/08/2009)

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256 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette Livre Espana, S.A.U. as Corporate Parent. Document ﬁled by Grupo Editorial Bruno, S.L.. (Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

257 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Grupo Anaya S.A. and Education Management, S.A. as Corporate Parent. Document ﬁled by Larousse Editorial, S.L.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

258 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Hachette U.K. Holding Ltd. as Corporate Parent. Document ﬁled by Hachette UK Limited.(Micheletto, Robert) (Entered: 09/08/2009)

09/08/2009

259 NOTICE OF APPEARANCE by Matthew Christian Schruers on behalf of Computer and Communications Industry Association (Schruers, Matthew) (Entered: 09/08/2009)

09/08/2009

260 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Computer and Communications Industry Association.(Schruers, Matthew) (Entered: 09/08/2009)

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261 MOTION to File Amicus Brief of Computer & Communications Industry Association. Document ﬁled by Computer and Communications Industry Association. (Attachments: # 1 CCIA Amicus Curiae Brief)(Schruers, Matthew) (Entered: 09/08/2009)

09/08/2009

262 NOTICE OF APPEARANCE by Yasuhiro Saito on behalf of Takashi Atouda, Susumu Nakanishi, Akiko Shimojyu, Jiro Asada, Takeaki Hori, Yuko Matsumoto, Chihaya Takahashi, Shinobu Yoshioka, Kenta Yamada, Tomotsuyo Aizawa, Yu Ohara, Yasumasa Kiyohara, Takashi Tsujii, Akira Nogami, Hiroyuki Shinoda, Toshihiko Yuasa, Koichi Kato, Masahiko Motoki, Hidehiko Nakanishi, Yashio Uemura, Nobuo Uda, Tsukasa Yoshida (Attachments: # 1 Certiﬁcate of Seervice)(Saito, Yasuhiro) (Entered: 09/08/2009)

09/08/2009

263 BRIEF AMICUS CURIAE of Consumer Watchdog in Opposition to the Proposed Settlement Agreement. Document ﬁled by Consumer Watchdog.(Fetterman, Daniel) (Entered: 09/08/2009)

09/08/2009

264 Objection to the Proposed Settlement and to Certiﬁcation of the Proposed Settlement Class and Sub-Class by Members of Japan P.E.N. Club. Document ﬁled by Takashi Atouda, Susumu Nakanishi, Akiko Shimojyu, Jiro Asada, Takeaki Hori, Yuko Matsumoto, Chihaya Takahashi, Shinobu Yoshioka, Kenta Yamada, Tomotsuyo Aizawa, Yu Ohara, Yasumasa Kiyohara, Takashi Tsujii, Akira Nogami, Hiroyuki Shinoda, Toshihiko Yuasa, Koichi Kato, Masahiko Motoki, Hidehiko Nakanishi, Yashio Uemura, Nobuo Uda, Tsukasa Yoshida. (Attachments: # 1 Declaration of Jiro Makino in Support of Objection, # 2 Declaration of Naoki Gokita in Support of Objection, # 3 Certiﬁcate of Service)(Saito, Yasuhiro) (Entered: 09/08/2009)

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265 NOTICE of of Intent To Appear and Be Heard At The Fairness Hearing. Document ﬁled by Takashi Atouda, Susumu Nakanishi, Akiko Shimojyu, Jiro Asada, Takeaki Hori, Yuko Matsumoto, Chihaya Takahashi, Shinobu Yoshioka, Kenta Yamada, Tomotsuyo Aizawa, Yu Ohara, Yasumasa Kiyohara, Takashi Tsujii, Akira Nogami, Hiroyuki Shinoda, Toshihiko Yuasa, Koichi Kato, Masahiko Motoki, Hidehiko Nakanishi, Yashio Uemura, Nobuo Uda, Tsukasa Yoshida. (Attachments: # 1 Certiﬁcate of Service)(Saito, Yasuhiro) (Entered: 09/08/2009)

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267 NOTICE OF APPEARANCE by Joseph Solomon Hall on behalf of Harold Bloom, Elliot Abrams, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, Roger Simon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Wendy Shalit, American Society of Journalists and Authors, Charlotte Allen (Hall, Joseph) (Entered: 09/08/2009)

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268 NOTICE OF APPEARANCE by Kristin Hackett Neuman on behalf of Canadian Standard Association (Neuman, Kristin) (Entered: 09/08/2009)

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269 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying None as Corporate Parent. No Corporate Parent. Document ﬁled by Microsoft Corporation.(Rubin, Thomas) (Entered: 09/08/2009)

09/08/2009

270 NOTICE of OF FILING OF OBJECTIONS TO PROPOSED SETTLEMENT BY HACHETTE LIVRE, S.A., LIBRARIE ARTHME FAYARD, S.A., DUNOD EDITEUR,

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S.A., LES EDITIONS HATIER, S.N.C., EDITIONS, LAROUSSE, S.A.S., EDITORIAL SALVAT, S.L., GRUPO ANAYA, S.A., ALGAIDA EDITORES, S.A., ALIANZA EDITORIAL, S.A., EDICIONS XERAIS DE GALICIA, S.A., EDITORIAL BARCANOVA, S.A., LAROUSSE EDITORIAL, S.L., GRUPO EDITORIAL BRUO, S.L., EDELSA GRUPO DIDASCALIA, S.A., AND HACHETTE U.K. LIMITED. Document ﬁled by Akiko Shimojyu. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Micheletto, Robert) (Entered: 09/08/2009)
271 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Canadian Standards Association.(Neuman, Kristin) (Entered: 09/08/2009)
272 Objection of Canadian Standards Association to Proposed Settlement. Document ﬁled by Canadian Standards Association. (Neuman, Kristin) (Entered: 09/08/2009)
273 Objection to Proposed Settlement and Notice of Intent to Appear. Document ﬁled by Eric Jager, Harold Bloom, Elliot Abrams, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, Roger Simon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Wendy Shalit, American Society of Journalists and Authors, Charlotte Allen. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Hall, Joseph) (Entered: 09/08/2009)
274 BRIEF Amicus Curiae Brief of Sony Electronics Inc. In Support Of Proposed Google Book Search Settlement. Document ﬁled by Sony Electronics Inc..(Coplan, Jennifer) (Entered: 09/08/2009)
275 BRIEF Amicus Brief of Antitrust Law and Economics Professors In Support Of The Settlement. Document ﬁled by Antitrust Law and Economics Professors.(Ingber, Matthew) (Entered: 09/08/2009)
276 Objection re: 64 Order on Motion to Approve,,, Objections of Microsoft Corporation to Proposed Settlement and Certiﬁcation of Proposed Settlement Class and Sub-Classes. Document ﬁled by Microsoft Corporation. (Attachments: # 1 Exhibit A to G, # 2 Exhibit H to O, # 3 Exhibit P to Q, # 4 Exhibit R, # 5 Exhibit S to T, # 6 Exhibit U part 1 of 6, # 7 Exhibit U part 2 of 6, # 8 Exhibit U part 3 of 6, # 9 Exhibit U part 4 of 6, # 10 Exhibit U part 5 of 6, # 11 Exhibit U part 6 of 6, # 12 Exhibit V to Z)(Rubin, Thomas) (Entered: 09/08/2009)
277 Amicus Curiae APPEARANCE entered by Gary M. Becker on behalf of Richard Blumenthal CT Attorney General.(Becker, Gary) (Entered: 09/08/2009)
278 OPPOSITION BRIEF re: 64 Order on Motion to Approve,,, Objection to Proposed Settlement: Proposed Settlement Violates State Unclaimed Property Laws and Chartible Trust Laws, State May Not Be Included in Class Without its Consent. Document ﬁled by Richard Blumenthal CT Attorney General.(Becker, Gary) (Entered: 09/08/2009)
279 NOTICE of Intent to Appear. Document ﬁled by Privacy Authors and Publishers.

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280 Objection to Settlement Agreement. Document ﬁled by Charles D Weller, weller. (Attachments: # 1 Exhibit A --- Class Action Reports)(Horowitz, Eric) (Entered: 09/08/2009)

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281 BRIEF IN OBJECTION TO PROPOSED SETTLEMENT. Document ﬁled by Privacy Authors and Publishers. (Attachments: # 1 Appendix A)(Rudman, Samuel) (Entered: 09/08/2009)

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282 MEMORANDUM OF LAW MEMORANDUM OF AMICUS CURIAE OPEN BOOK ALLIANCE IN OPPOSITION TO THE PROPOSED SETTLEMENT BETWEEN THE AUTHORS GUILD, INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., ET AL., AND GOOGLE INC.. Document ﬁled by Open Book Alliance. (Boccanfuso, Anthony) (Entered: 09/08/2009)

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283 MOTION for Discovery of Putative Class Representatives and Defendant Google Inc.. Document ﬁled by Eric Jager, Harold Bloom, Elliot Abrams, Phyllis Ammons, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, Roger Simon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Julia Wright, Wendy Shalit, American Society of Journalists and Authors, Charlotte Allen. Return Date set for 9/18/2009 at 05:00 PM. (Attachments: # 1 Exhibit Discovery Requests) (Hall, Joseph) (Entered: 09/08/2009)

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284 NOTICE OF APPEARANCE by Robert William Clarida on behalf of Lyrasis, Inc., NYLINK, Bibliographical Center for Research Rocky Mountain, Inc. (Clarida, Robert) (Entered: 09/08/2009)

09/08/2009

285 NOTICE OF APPEARANCE by Robert Cunningham Turner on behalf of Yahoo! Inc. (Turner, Robert) (Entered: 09/08/2009)

09/08/2009

286 Objection to Settlement Agreement. Document ﬁled by Dirk Sutro. (Attachments: # 1 Exhibit A -- Class Action Reports)(Horowitz, Eric) (Entered: 09/08/2009)

09/08/2009

287 MEMORANDUM OF LAW in Opposition To The Settlement Proposal On Behalf of the French Republic. Document ﬁled by French Republic. (Max, Theodore) (Entered: 09/08/2009)

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288 MEMORANDUM OF LAW in Opposition re: 55 MOTION to Approve /Notice of Motion for Preliminary Settlement Approval.. Document ﬁled by Yahoo! Inc.. (Turner, Robert) (Entered: 09/08/2009)

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289 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Lyrasis, Inc., NYLINK, Bibliographical Center for Research Rocky Mountain, Inc..(Clarida, Robert) (Entered: 09/08/2009)

09/08/2009

290 DECLARATION of Nicolas Georges in Opposition re: 287 Memorandum of Law in Opposition. Document ﬁled by French Republic. (Max, Theodore) (Entered: 09/08/2009)

09/08/2009 291 MEMORANDUM OF LAW MEMORANDUM OF AMICUS CURIAE THE INTERNET

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ARCHIVE IN OPPOSITION TO SETTLEMENT AGREEMENT. Document ﬁled by The Internet Archive. (Boccanfuso, Anthony) (Entered: 09/08/2009)
292 BRIEF AMICI CURIAE OF LYRASIS, INC., NYLINK AND BIBLIOGRAPHICAL CENTER FOR RESEARCH ROCKY MOUNTAIN, INC. IN SUPPORT OF MODIFICATION OF PROPOSED SETTLEMENT. Document ﬁled by Lyrasis, Inc., NYLINK, Bibliographical Center for Research Rocky Mountain, Inc..(Clarida, Robert) (Entered: 09/08/2009)
293 Objection to Proposed Settlement. Document ﬁled by Free Software Foundation, Inc.. (Williamson, Aaron) (Entered: 09/08/2009)
294 NOTICE of Intent to Appear at the Fairness Hearing on October 7, 2009, on behalf of the aforementioned members of the Publisher Sub-Class.. Document ﬁled by Hachette Livre SA, Librarie Arthme Fayard SA, Dunod Editeur SA, Les Editions Hatier SNC, Editions Larousse SAS, Editorial Salvat SL, Grupo Anaya SA, Algaida Editores, S.A., Alianza Editorial, S.A., Edicions Xerais De Galicia, S.A., Editorial Barcanova, S.A., Larousse Editorial, S.L, Grupo Editorial Bruno, S.L., Edelsa Grupo Didascalia, S.A., Hachette UK Limited. (Micheletto, Robert) (Entered: 09/08/2009)
***REJECTION OF ATTEMPTED PAPER FILING IN ECF CASE. The following document(s) Epic's Motion to Intervene, by Mark Rotenberg, was rejected by the Clerk's Ofﬁce and must be FILED ELECTRONICALLY on the Court's ECF System. (eef) (Entered: 09/08/2009)
295 AFFIDAVIT OF SERVICE. Document ﬁled by French Republic. (Max, Theodore) (Entered: 09/08/2009)
296 Objection Of Proquest LLC To Proposed Settlement. (rw) (rw). (Entered: 09/08/2009)
297 AFFIRMATION of Charles J. Sanders in Opposition re: 55 MOTION to Approve /Notice of Motion for Preliminary Settlement Approval.. Document ﬁled by Songwriters Guild of America. (Attachments: # 1 Civil Cover Sheet Cover letter explaining delay in ﬁling.)(Fedele, John) (Entered: 09/08/2009)
299 MOTION to Intervene. Document ﬁled by Lewis Hyde, Harry Lewis, Open Access Trust Inc.. Return Date set for 9/30/2009 at 09:30 AM. (Attachments: # 1 Supplement Afﬁrmation of Charles R. Nesson, # 2 Supplement Objections and Memorandum of Law)(Garbus, Martin) (Entered: 09/08/2009)
300 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION to Intervene Objections to Proposed Settlement and Memorandum in Support of Motion to Intervene. Document ﬁled by Lewis Hyde, Harry Lewis, Open Access Trust Inc.. Return Date set for 9/30/2009 at 09:30 AM.(Garbus, Martin) Modiﬁed on 9/9/2009 (jar). (Entered: 09/08/2009)
301 REQUEST TO PARTICIPATE of Darlene Marshall Objection to Class Action Settlement and Notice of Intent to Appear. Document ﬁled by Darlene Marshall.(Weiss, Matthew) (Entered: 09/08/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Martin Garbus to RE-FILE Document 300 MOTION to Intervene Objections to Proposed Settlement and Memorandum in Support of Motion to Intervene. Use the event type Memorandum of Law in Opposition found under the event list Replies, Oppositions, Supporting Documents. (jar) (Entered: 09/09/2009)
700 MOTION for Gary Leland Reback to Appear Pro Hac Vice. Document ﬁled by Open Book Alliance.(pl) (Entered: 09/15/2009)

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302 LETTER addressed to Judge Denny Chin from Edward Feigenbaum, Jennifer Widom, Daphne Koller, Monica Lam, Nils Nilsson, Jeffrey Ullman, Terry Winograd, Jure Leskovec, John Ousterhout, Mehran Sahami, Russ Altman, Gary Bradski, Stuart Card, Goeff Gordon and Shirley Tessler dated September 3, 2009 re: Amicus curiae in support of the approval of the ﬁnal settlement. (ad) (Entered: 09/09/2009)
303 LETTER addressed to Judge Denny Chin from Erez Lieberman-Aiden and Jean-Baptiste Michel dated September 3, 2009 re: Amici curiae in support of the settlement. Document ﬁled by Darlene Marshall.(ad) (Entered: 09/09/2009)
305 LETTER addressed to Ofﬁce of the Clerk from Anette Ziethen dated 9/1/09 re: join in the objections that have been presented to this court by Scott Gant and the group of foreign publishers and publishing associations...; (djc) (Entered: 09/09/2009)
306 ORDER The Computer and Communications Industry Association ("CCIA") moves for leave to ﬁle an amicus curiae brief in this case. CCIA's motion is granted, and its brief is accepted. SO ORDERED. (Signed by Judge Denny Chin on 9/9/2009) (jmi) (Entered: 09/10/2009)
307 ORDER denying 283 Motion for Discovery.The Bloom Objectors' motion is denied. (Signed by Judge Denny Chin on 9/9/2009) (jmi) (Entered: 09/10/2009)
308 ORDER denying 299 Motion to Intervene. Lewis Hyde, Harry Lewis, and the Open Access Trust, Inc. (the "proposed interveners") move, pursuant to Federal Rule of Civil Procedure 24(b), to intervene in this action. The motion is denied. This case was ﬁled some four years ago and has been conditionally settled; it is simply too late to permit new parties into the case. The Court will, however, consider the objections raised by the proposed interveners. SO ORDERED.(Signed by Judge Denny Chin on 9/9/2009) (jmi) (Entered: 09/10/2009)
309 ORDER granting 233 Motion for Michael J. Guzman to Appear Pro Hac Vice for Harold Bloom, Elliot Abrams, Charlotte Allen,Phyllis Ammons, Dick Armey, Jacques Barzun, Nicholas A. Basbanes, Stephen Bates, Shawn J.Bayem, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, MidgeDeeter, John Derbyshire, The Estate of Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A.Epstein, Henry Fetter, David D. Friedman, David Gelemter, Gabrielle Glaser, Mary Ann Glendon,Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, RichardHoward, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz,David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry,Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Peter Schweizer, RogerSimon, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse,Elizabeth Wurtzel, and John Yoo. (Signed by Judge Denny Chin on 9/9/2009) (jmi) (Entered: 09/10/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 309 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jmi) (Entered: 09/10/2009)
310 ORDER granting 232 Motion for Edwin C. Komen to Appear Pro Hac Vice for Federal Republic of Germany. (Signed by Judge Denny Chin on 9/9/2009) (jmi) (Entered: 09/10/2009)
311 ORDER granting 304 Motion for Philip Roberts to Appear Pro Hac Vice for Canadian Standard Association, Paul Dickson, Joseph Goulden, Association of American Publishers, Inc., Associational Plaintiffs, The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc., The Author's Guild,

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Herbert Mitgang, Betty Miles, Daniel Hoffman. (Signed by Judge Denny Chin on 9/9/2009) (jmi) (Entered: 09/10/2009)
312 QUESTIA MEDIA, INC.'S AMICUS CURIAE OPPOSITION BRIEF TO THE SETTLEMENT AGREEMENT: Questia Media, Inc. ("Questia") urges the Court not to approve the Settlement Agreement between Google, Inc. and the Plaintiffs. (jmi) (Entered: 09/10/2009)
313 BRIEF AMICUS CURIAE OF CONSUMER WATCHDOG IN OPPOSITION TO THE PROPOSED SETTLEMENT AGREEMENT The proposed Settlement Agreement would strip rights from millions of absent class members, worldwide, in violation of national and international copyright law, for the sole beneﬁt of Google. If, as Google claims, its "limited" search-engine activities were protected by fair use, the public deserves an adjudication on this matter, to allow the creation of a competitive booksearch market. And it is up to Congress to create a solution to the orphan-works problem that would allow all potential users to beneﬁt, while protecting the copyright holders as well as international interests. The parties simply cannot justify this "solution" which does not adequately protect the Rightsholders and unfairly beneﬁts a single party. Accordingly, Consumer Watchdog respectfully asks that the Court not approve the settlement. (jmi) (Entered: 09/10/2009)
314 BRIEF AMICUS CURIAE OF THE CENTER FOR DEMOCRACY & TECHNOLOGY IN SUPPORT OF APPROVAL OF THE SETTLEMENT AND PROTECTION OF READER PRIVACY The New Services enabled by the Proposed Settlement will be extraordinarily valuable, and will make available to the public a vast amount of knowledge and information that is largely inaccessible today. The Settlement should be approved. But the New Services create serious privacy concerns, and the Court must take afﬁrmative action - as part of the settlement approval - to protect reader privacy. (jmi) (Entered: 09/10/2009)
315 BRIEF OF AMICUS CURIAE The Court should advise the parties to amend the settlement to uphold the rights of book owners, all copyright owners and embody the principles of a digital media exchange. Amicus request permission to appear at the Fairness Hearing currently set to be held on October 7, 2009. (jmi) (Entered: 09/10/2009)
316 LETTER addressed to Denny Chin from Edward John Hasbrouck dated 8/31/2009 re: By this letter, I opt out of the proposed settlement in this case. Although the settlement notice claims that, "your opt-out request.., must state which Sub-Class you wish to opt out of (either the Author Sub-Class or Publisher Sub-Class)," I believe that this is both incorrect and improper: Since I am opting out of the proposed settlement, I am not subject to its purported division of the proposed class into sub-classes. (jmi) (Entered: 09/10/2009)
317 OBJECTION TO PROPOSED SETTLEMENT Unless both the foregoing concerns can be resolved, I respectfully request that the proposed settlement agreement be rejected by this Court. I am submitting this in my capacity as an author and a member ofthe Authors Guild, not in my capacity as a lawyer. (jmi) (Entered: 09/10/2009)
318 LETTER addressed to The Ofﬁce of the Clerk from Susanne Franzkeit dated 9/1/09 re: I am the managing director of the V&R unipress GmbH, a book publisher located in Gottingen, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)

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319 LETTER addressed to Ofﬁce of the Clerk from Reinhard Kawohl dated 9/1/09 re: I am proprietor and managing director of the Kawohl Verlag, a publisher of books, calendars and gifts located in Wesel, Germany; We write to object to the settlement agreement; In addition, we wish to inform this Court that our company did not receive any written notice of the settlement agreement, nor did we see any published notice of the settlement agreement. (mro) (Entered: 09/10/2009)
320 LETTER addressed to Ofﬁce of the Clerk from Ludwig Paulmichl dated 9/1/09 re: I am publisher of the Folio publishing house, a book publisher located in Vienna. We write to object to the settlement agreement. (mro) (Entered: 09/10/2009)
321 LETTER addressed to Judge Denny Chin from Rayan Radia dated 9/4/2009 re: The Competitive Enterprise Institute, a 501(3) non-proﬁt public interest organization that studies the intersection of risk, regulation and markets, hereby requests the Courts permission to submit this letter as an amicus curiae in the Authors Guild et al. v Google, Inc. (jmi) (Entered: 09/10/2009)
322 LETTER addressed to Ofﬁce of the Clerk from Michael Schmitt dated 9/1/09 re: I am Managing Director of the Fachverlag Hans Carl GmbH, a book publisher located in Nuremberg, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Federal Republic of Germany.(mro) (Entered: 09/10/2009)
323 LETTER addressed to Sir Michael McMahon from Uitgeverij Malmberg, Johan Leenaars dated 8/25/09 re: We, uitgeverij Malmberg, are writing in regards to the proposed settlement agreement. We would like to raise the following concerns and objections to this settlement: Consequences for European right holders; Determination of commercial availability; Bad quality of the database; Uncertainty about digitization status; Lack of representation of non-US rights holders in the Book Rights Registry; Deadline for making objections or opting out still too short. (mro) (Entered: 09/10/2009)
324 LETTER addressed to Ofﬁce of the Clerk from Dr. Manfred Biehal dated 9/1/09 re: I am CEO of the Deutscher Genossenschafts-Verlag eG, a book publisher located in Wiesbaden, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
325 PRIVACY AUTHORS AND PUBLISHERS' OBJECTION TO PROPOSED SETTLEMENT. (jmi) (Entered: 09/10/2009)
326 LETTER addressed to Ofﬁce of the Clerk from Alexandra Eib dated 9/1/09 re: I am the lawyer for the Bibliographisches Institut AG, a book publisher located in Mannheim, Germany; We write to object to the settlement agreement; In addition, we wish to inform this Court that the written notice that our company received of the Settlement agreement in German was extremely difﬁcult to read and included a number of meaningless or nonsensical terms and had been translated very poorly.(mro) (Entered: 09/10/2009)
327 LETTER addressed to Ofﬁce of the Clerk from Wolf Dieter Eggert dated 9/1/09 re: I am Managing Director of the Hueber Verlag GmbH & Co. KG, a book publisher located in Ismaning, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that

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have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
328 LETTER addressed to Judge Denny Chin from Liana Levi dated 9/3/2009 re: My name is Liana Levi, and I am Manager and Editor in Chief of the Editions Liana Levi, a book publisher located in France. Editions Liana Levi is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/10/2009)
329 LETTER addressed to Judge Denny Chin from Jay Starkman dated 9/1/2009 re: I am the author and copyright holder of The Sex of a Hippopotamus: A Unique History of Taxes and Accounting (Twinset, 2008). It is detestable that the court would write judicial legislation through a "settlement" vehicle abridging my rights (and those of others) and granting those involuntarily ceded rights to Google or any other entity. (jmi) (Entered: 09/10/2009)
330 LETTER addressed to Ofﬁce of the Clerk from Jan Weitendorf dated 9/1/09 re: I represent "Verlagsgrupe Oetinger" as CEO and publisher, a book publisher located in Hamburg, Germany; We write to object to the settlement agreement; We cannot afford to loose rights to Google via internet-this way of selling books has to be one of our "recoupment" possibilities for the future. (mro) (Entered: 09/10/2009)
331 LETTER addressed to Ofﬁce of the Clerk from Joachim Schmidt dated 9/1/09 re: I am CEO of the Erich Schmidt Verlag GmbH & Co., a book publisher located in Berlin, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
332 LETTER addressed to Michael McMahon from Lex Jansen dated 8/27/09 re: The hearing in October 2009 regarding the Google settlement; We would like to draw your attention to the copyrights of the Dutch books owned by our publishing house which appear to be included in the settlement reached between Google and the Authors Guild and Association of American Publishers. We should ﬁrst like to point out that we have not yet been consulted or heard in this settlement, even though our copyrights are involved; We have no problem with snippets of works published by our publishing house appearing in search results on Google, but we do intend to retain all rights on works jointly owned by us, our authors and/or our translators now and in the future. (mro) (Entered: 09/10/2009)
333 LETTER addressed to Ofﬁce of the Clerk from Detlef Holtgrefe dated 9/1/09 re: I am Publisher and President of the Brunnen Verlag GmbH, a book publisher located in GieBen, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
334 LETTER addressed to Judge Denny Chin from Jennifer Jackson (Attorney General of Texas) dated 9/4/09 re: Texas asks the Court to modify the settlement agreement. (cd) (Entered: 09/10/2009)
335 LETTER addressed to Ofﬁce of the Clerk from Stephan D. Job dated 9/1/09 re: I am managing directior of the Carl Hanser Verlag GmbH & Co. KG, a book publisher

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located in Munich, Germany; We write to object to the settlement agreement. (mro) (Entered: 09/10/2009)
336 LETTER addressed to Judge Denny Chin from Pamela Samuelson (Berkeley Law) dated 9/3/09 re: Google should not have a monopoly on a digital database of books. (cd) (Entered: 09/10/2009)
337 LETTER addressed to Ofﬁce of the Clerk from Gerhard Grossmann dated 9/1/09 re: I am Corporate Counsel of the et+k, edition text + kritik in Richard Boorberg Verlag GmbH & Co. KG, a book publisher located in Munchen, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations; We also wish to inform this Court that our company has not received any written notice of the settlement agreement, nor did we see any published notice of settlement agreement. (mro) (Entered: 09/10/2009)
338 LETTER addressed to Ofﬁce of the Clerk from Gerhard Grossmann dated 9/1/09 re: I am corporate counsel of the Richard Boorberg Verlag GmbH & Co KG, a book publisher located in Stuttgart, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
339 LETTER addressed to Mr. Michael McMahon from Mr. Kees Holierhoek dated 8/31/09 re: We, the foundation of Dutch Authors, Stichting Lira, hereinafter Lira, are writing to you with regard to the proposed settlement agreement between Google and the Authors Guild and the Association of American Publishers. Lira has decided to join the settlement and to ﬁle claims with regard to one time cash payments, only on behalf of our rights holders who have mandated Lira hereto. In relation to future "Display Use" under the settlement, Lira is still surveying and evaluating which Lira member authors are interested in giving consent to Google with regard to (future) display use under the settlement. (mro) (Entered: 09/10/2009)
340 LETTER addressed to Ofﬁce of the Clerk from Ulrike Metzger dated 9/2/09 re: Ulrike Metzer, Managing Director of Ravensburger joins in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations as further set forth in this letter. Document ﬁled by Ravensburger Buchverlag Otto Maier GmbH.(dle) (Entered: 09/10/2009)
341 LETTER addressed to Madam or Sir from Dr. A. Nagele dated 9/1/09 re: My name is Andreas Nagele, one of the partners of Gebr. Borntraeger Verlagsbuchhandlung of Stuttgart, Germany, a publisher of scholarly books and journals since 1790. Our books and journals are in distributed and read in US, and elsewhere; We write to object the settlement agreement; Further, roughly 90% of the data on Gebr. Borntraeger's publications, that Google Inc. has made available in the preview of its planned book registry is ﬂawed, incomplete and downright incorrect, especially when it concerns the commercial availability of our copyrighted works; It appears to us that Google Inc. has simply chosen to label everything out of print, with very few exceptions. (mro) (Entered: 09/10/2009)
342 LETTER addressed to Judge Denny Chin from Wade Henderson (Leadership Conference on Civil Rights) dated 9/3/09 re: Failure to approve the settlement would be tragic. (cd) (Entered: 09/10/2009)

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343 LETTER addressed to Madam or Sir from Dr. Walt Obermiller dated 9/1/09 re: I am partner of E. Schweizerbart'sche Verlagsbuchhandlung of Stuttgart, Germany, a publisher of scholarly books and journals since 1826. Our books and journals are in considerable circulation in the US and elsewhere; We write to object to the settlement agreement. (mro) (Entered: 09/10/2009)
344 LETTER addressed to Ofﬁce of the Clerk from Sven H. Koeltz re: I am owner of the Koeltz Scientiﬁc Books, a book publisher located in Konigstein, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
345 LETTER addressed to Judge Denny Chin from Edward Feigenbaum et al (Stanford Computer Science) dated 9/3/09 re: In support of approval of the ﬁnal settlement. Document ﬁled by Peter Schweizer.(cd) (Entered: 09/10/2009)
346 LETTER addressed to Ofﬁce of the Clerk from Dietrich zu Klampen, publisher dated 9/1/09 re: Dietrich zu Klampen Verlag GbR joins in the objections that have been presented to this Court by Scott Gant et al. Document ﬁled by Dietrich zu Klampen Verlag GbR.(dle) (Entered: 09/10/2009)
347 LETTER addressed to Ofﬁce of the Clerk from Jan Mucha dated 9/1/09 re: I am the CEO of the IZ Immobilienzeitung Verlagsgesellschaft mbH, a book publisher located in Wiesbaden, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
348 LETTER addressed to Ofﬁce of the Clerk from Christian Schumacher-Gebler dated I am CFO of the Ullstein Buchverlage GmbH, a publisher located in Berlin, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations; We also wish to inform the Court that the written notice that our company received of the settlement agreement in German was extremely difﬁcult to read.(mro) (Entered: 09/10/2009)
349 LETTER addressed to Ofﬁce of the Clerk from Rainer Schneider dated 9/1/09 re: I am general director and owner of the Schneider Verlag Hohengehren GmbH, a book publisher located in Baltmannsweiler, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
350 LETTER addressed to Judge Denny Chin from Lezi Baskerville (NAFEO) dated 8/20/09 re: Request for approval of the proposed settlement. (cd) (Entered: 09/10/2009)
351 LETTER addressed to Ofﬁce of the Clerk from Dr. Stefan Krummow, Legal Advisor dated 9/1/09 re: legal advisor to Aufbau Verlag GmbH & Co. KG joins the objections that have been presented to this Court by Scott Gant, et al. (dle) (Entered: 09/10/2009)
352 LETTER addressed to Ofﬁce of the Clerk from Dr. Tilmann Michaletz and Martin

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Huppe dated 9/1/09 re: Cornelsen Verlag GmbH joins in the objections that thave been presented to this Court by Scott Gant, et al. Document ﬁled by Cornelsen Verlag GmbH. (dle) (Entered: 09/10/2009)
353 LETTER addressed to Judge Denny Chin from Lateef Mitima (Institute of Intellectual Property) dated 9/8/09 re: Request for approval of settlement. (cd) (Entered: 09/10/2009)
354 LETTER addressed to Judge Denny Chin from Roberta Adelman (CUNY LEADS) dated 9/4/09 re: Request for approval of the settlement. (cd) (Entered: 09/10/2009)
355 LETTER addressed to Ofﬁce of the Clerk from Gregor Rauh dated 9/1/09 re: Cornelsen Verlag Scriptor GmbH & Co. KG joins in the objections presented to this Court by Scott Gant et al. Document ﬁled by Cornelsen Verlag Scriptor GmbH & Co. KG.(dle) (Entered: 09/10/2009)
356 LETTER addressed to Ofﬁce of the Clerk from Bernhard Schmid dated 9/2/09 re: KarlMay-Verlag joins in the objections that have been presented to this Court by Scott Gant et al. Document ﬁled by Karl-May-Verlag.(dle) (Entered: 09/10/2009)
357 LETTER addressed to Judge Denny Chin from Michael Keller and Lauren Schoenthaler (Stanford University Libraries) dated 9/8/09 re: Request for approval of the Proposed Settlement. (cd) (Entered: 09/10/2009)
358 LETTER addressed to Ofﬁce of the Clerk from Raymond Johnson-Ohla dated 9/1/09 re: VDI Verlag GmbH joins in the objections presented to this Court by Scott Gant et al. Document ﬁled by VDI Verlag GmbH.(dle) (Entered: 09/10/2009)
359 LETTER addressed to Judge Denny Chin from Leroy Watson (The National Grange) dated 9/3/09 re: Request for approval of the ﬁnal settlement agreement. (cd) (Entered: 09/10/2009)
360 LETTER addressed to Ofﬁce of the Clerk from Joachim Nourney dated 9/2/09 re: Verlag- Europa Lehrmittel joins in the objections that have been presented to this Court by Scott Gant et al.. Document ﬁled by Verlag Europa-Lehrmittel.(dle) (Entered: 09/10/2009)
361 LETTER addressed to Judge Chin from Rodney Erickson et al (Committee on Institutional Cooperation) dated 9/4/09 re: Request for approval of the settlement agreement. (cd) (Entered: 09/10/2009)
362 LETTER addressed to Judge Denny Chin from Martin Wichert dated 9/1/09 re: Martin Wichert, Sales Director of the Hatje Cantz Verlag, a book publisher located in Ostiﬁldern, Germany writes to object to the Settlement Agreement. Document ﬁled by Martin Wichert.(ae) (Entered: 09/10/2009)
363 LETTER addressed to Ofﬁce of the Clerk from Joachim Nourney dated 9/2/09 re: Fachbuchverlag Pfanneberg joins in the objections that have been presented to this Court by Scott Gant et al. Document ﬁled by Fachbuchverlag Pfanneberg.(dle) (Entered: 09/10/2009)
364 LETTER addressed to Judge Denny Chin from Tom Kraushaar, Publisher dated 9/2/09 re: Tom Kraushaar, Publisher of the J.G. Cotta'sche Buchhandlung Nachfolger GmbH, writes to object to the Settlement Agreement. Filed by Tom Kraushaar. (ae) (Entered: 09/10/2009)
365 LETTER addressed to Judge Denny Chin from Sakari Laiho dated 9/1/09 re: Sakari Laiho, Director of the The Finnish Book Publishers Association writes to oppose the Settlement Agreement. Filed by Sakari Laiho(ae) (Entered: 09/10/2009)

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366 LETTER addressed to Ofﬁce of the Clerk from Ludger Kieyboldt dated 9/1/09 re: Friedrich Kiehl Verlag GmbH joins in the objections that have been presented to this Court by Scott Gant, et al. Document ﬁled by Friedrich Kiehl Verlag GmbH.(dle) (Entered: 09/10/2009)
367 LETTER addressed to Judge Denny Chin from Peter Gollasch dated 9/2/09 re: Peter Gollasch, CFO of the Thienemann Verlag GmbH writes to the Court objecting to the Settlement Agreement. Filed by Peter Gollasch.(ae) (Entered: 09/10/2009)
368 LETTER addressed to Judge Denny Chin from Klaus W. Mueller, Carl-Auer Publ. dated 9/1/09 re: Klaus W. Mueller, General Manager of Carl-Auer Publishers writes to the Court objecting to the Settlement Agreement. Filed by Klaus W. Mueller.(ae) (Entered: 09/10/2009)
369 LETTER addressed to Ofﬁce of the Clerk from Peter Kirchheim dated 9/1/09 re: P. Kirchheim Verlag joins in the objections that have been presented to this Court by Scott Gant et al. Document ﬁled by P. Kerchheim Verlag.(dle) (Entered: 09/10/2009)
371 LETTER addressed to Judge Denny Chin from Jesus Sanchez Garcia dated 9/3/09 re: Grupo Anaya objects to the proposed Settlement Agreement. Document ﬁled by Grupo Anaya SA.(dle) (Entered: 09/10/2009)
372 LETTER addressed to Judge Denny Chin from Ulich Pokern and Tilo Knoche dated 9/1/09 re: Parties Ulrich Pokern and Tilo Knoche, Executive Directors of Erns Klett Verlag GmbH jointly object the Settlement Agreement. Filed by Ulich Pokern, Tilo Knoche. (ae) (Entered: 09/10/2009)
373 LETTER addressed to Judge Denny Chin from Dr. W. Georg Olms dated 9/1/09 re: Dr. W. Georg Olms, Managing Director of the Georg Olms Verlag writes to object to the Settlement Agreement. Document ﬁled by W. Georg Olms.(ae) (Entered: 09/10/2009)
374 LETTER addressed to Judge Denny Chin from Karin Wittenborg (University of Virginia Library) dated 9/3/09 re: Request for ﬁnal approval of the settlement agreement. (cd) (Entered: 09/10/2009)
375 LETTER addressed to Judge Denny Chin from Dr. Wolfgang Illert dated 9/2/09 re: The Deutsche Stiftung Denkmalschutz writes objecting to the Settlement Agreement. Document ﬁled by The Deutsche Stiftung Denkmalschutz.(ae) (Entered: 09/10/2009)
376 LETTER addressed to J. Michael McMahon, Clerk of Court from Hesys Sanchez Garcia dated 9/3/09 re: Objections of Grupo Editorial Bruno, S.L. to proposed Class Settlement. Document ﬁled by Edelsa Grupo Didascalia, S.A..(pl) (Entered: 09/10/2009)
377 LETTER addressed to Judge Denny Chin from Robert Stein (Uniform Law Commission) dated 9/3/09 re: Not opting out of the proposed settlement. (cd) (Entered: 09/10/2009)
378 LETTER addressed to Judge Denny Chin from Margret Schneider dated 09/1/09 re: Dr. Stefan Schlegel, manager of the Vde Verlag GmbH writes to object to the Settlement Agreement. Document ﬁled by Vde Verlag GmbH.(ae) (Entered: 09/10/2009)
379 LETTER addressed to Judge Denny Chin from Karl ZoBell and Millie Basden (DLA Paper) dated 8/26/09 re: Request for approval of the settlement. (cd) (Entered: 09/10/2009)
380 LETTER addressed to Judge Denny Chin from Nikolaus Hansen dated 9/1/09 re: Nikolaus Hansen, publisher of the Atrium Vertag AG, writes to object to the Settlement Agreement. Document ﬁled by Atrium Veriag AG.(ae) (Entered: 09/10/2009)

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381 LETTER addressed to Judge Denny Chin from Jennifer Nicholson (IFLA) dated 9/1/09 re: Territorial limits of the settlement. (cd) (Entered: 09/10/2009)

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382 LETTER addressed to Judge Denny Chin from Eva Maria Buchholz dated 9/1/09 re: Evan Maria Buchhlz, head of book department of the Hinstorff Verlag GmbH writes to object to the Settlement Agreement. Document ﬁled by Hinstorff Verlag GmbH.(ae) (Entered: 09/10/2009)

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383 LETTER addressed to Judge Denny Chin from Gregory Crane (Tufts University) dated 8/7/09 re: In support of the books Google has digitalized reach the widest possible audience as quickly as possible. (cd) (Entered: 09/10/2009)

09/09/2009

384 LETTER addressed to Judge Denny Chin from Anne Kenney (Cornell University Library) dated 9/2/09 re: Supporting ﬁnal settlement. (cd) (Entered: 09/10/2009)

09/09/2009

385 LETTER addressed to Judge Denny Chin from Florian Sautter dated 9/1/09 re: Florian Sautter, owner of the "Verlag der Buchhandlung Sautter & Lackmann, writes to object to the Settlement Agreement. Document ﬁled by Sautter & Lackmann Gachbuchhandlung. (ae) (Entered: 09/10/2009)

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386 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Dr. Martina Erdmann dated 9/1/09 re: objection to the Settlement Agreement. Document ﬁled by Dr. Martina Erdmann.(pl) (Entered: 09/10/2009)

09/09/2009

387 LETTER addressed to Judge Denny Chin from Jonathan Band (Jonathna Band PLLC) dated 9/3/09 re: Courtesy copies of the listed ﬁlings re settlement. (cd) (Entered: 09/10/2009)

09/09/2009

388 LETTER addressed to Judge Denny Chin from Steffen Herrmann dated 9/1/09 re: Steffen Herrmann, publisher of Junius Verlag GmbH, writes to object to the Settlement Agreement. Document ﬁled by Junius Verlag GmbH.(ae) (Entered: 09/10/2009)

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389 LETTER addressed to Judge Denny Chin from Ulrich Grunwald dated 9/1/09 re: Ulrich Grunwald, Manager of the Verlag Handwerk und Technik GmbH, writes to object to the Settlement Agreement. Document ﬁled by Verlag Handwerk und Technik GmbH.(ae) (Entered: 09/10/2009)

09/09/2009

390 LETTER addressed to Judge Denny Chin from Raymond Nimmer and Jeff Dodd (University of Houston) dated 9/4/09 re: Request for rejection of the settlement. (cd) (Entered: 09/10/2009)

09/09/2009

391 LETTER addressed to Judge Denny Chin from Hans J. Schmidtke dated 9/1/09 re: Hans J. Schmidtke, Publisher of the Cadmos Verlag GmbH, writes to object to the Settlement Agreement. Document ﬁled by Cadmos Verlag GmbH.(ae) (Entered: 09/10/2009)

09/09/2009

392 LETTER addressed to Judge Denny Chin from Harry Lewis (Author Sub-Class) dated 9/4/09 re: Objections to some of the terms of the settlement. (cd) (Entered: 09/10/2009)

09/09/2009

393 LETTER addressed to Judge Denny Chin from Diane Aronson dated 9/3/09 re: Concerns about settlement etc. (cd) (Entered: 09/10/2009)

09/09/2009

394 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Tanja Graf dated 9/2/09 re: objection to the Settlement Agreement. Document ﬁled by Tanja Graf.(pl) (Entered: 09/10/2009)

09/09/2009

395 LETTER addressed to Judge Denny Chin from Susan Bergholz dated 8/31/09 re: Objections to the settlement. (cd) (Entered: 09/10/2009)

09/09/2009

396 LETTER addressed to Judge Denny Chin from Nikolaus Hansen dated 9/1/09 re: Nikolaus Hansen, publisher of the Arche Literatur Verlag AG, writes to object to the

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397 LETTER addressed to Judge Denny Chin from Mary Lynn Cabrall dated 9/4/09 re: Request for rejection of the settlement. (cd) (Entered: 09/10/2009)

09/09/2009

398 LETTER addressed to Judge Denny Chin from Gary Rhoades (AAUP) dated 9/4/09 re: Concerns about the Google Library Project/settlement. (cd) (Entered: 09/10/2009)

09/09/2009

399 LETTER addressed to Judge Denny Chin from Tim Teloeken dated 9/1/09 re: Tim Teloeken, director of Alba Fachverlag GmbH & Co.KG, writes to object to the Settlement Agreement. Document ﬁled by Alba Fachverlag GmbH & Co.KG.(ae) (Entered: 09/10/2009)

09/09/2009

400 LETTER addressed to Judge Denny Chin from Olswang LLP dated 9/8/09 re: that on behalf on behalf of the UK Agents, we respectfully request the Court's permission to ﬁle this letter as an amicus curiae brief to address certain concerns of UK authors who have not opted-out of the proposed settlement agreement in this proceeding. The within brief is in support of neither party. Document ﬁled by Olswang LLP.(pl) (Entered: 09/10/2009)

09/09/2009

401 LETTER addressed to Judge Denny Chin from Serge Eyrolles dated 9/3/09 re: Serge Eyrolles, President of the French Publishers Association, writes to object to the Settlement Agreement. Document ﬁled by French Publishers Association.(ae) (Entered: 09/10/2009)

09/09/2009

402 LETTER addressed to Judge Denny Chin from Motohisa Ohno re: Objections to Settlement. (cd) (Entered: 09/10/2009)

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403 LETTER addressed to Judge Denny Chin from Martin Kahn (ProQuest) dated 9/3/09 re: Objections to settlement. (cd) (Entered: 09/10/2009)

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404 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Irene Lindon, CEO dated 9/3/09 re: objection to the Proposed Settlement Agreement. Document ﬁled by Les Editions De Minuit S.A..(pl) (Entered: 09/10/2009)

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405 Objections To Settlement. Document ﬁled by Harrasowitz, Media 24 et al. (cd) (Entered: 09/10/2009)

09/09/2009

406 OBJECTIONS to Proposed Settlement and Brief of Amici Curiae Borsenverein Des Deutschen Buchhandels, Schweizer Buchhandler - Und Verleger - Verbank Sbvv, Hauptverband Des Osterreichischen Buchhandels, Svenska Forlaggareforeningen. Document ﬁled by Harrasowitz, Media24, Studentlitteratur AB, Norstedts Forlagsgrupp AB, Norstedts Kartor AB, Leopard Forlag AB, Borsenverein des Deutschen Buchhandels, Schweizer Buchhandler - und Verleger-Verband SBVV, Hauptverband des Osterreichischen Buchhandels, Svenska Forlaggareforeningen. (ae) (Entered: 09/10/2009)

09/09/2009

407 LETTER addressed to Judge Denny Chin from Hiroshi Sakagami, President dated 9/4/09 re: objection to the Settlement Agreement. Document ﬁled by The Japan Writers' Association.(pl) (Entered: 09/10/2009)

09/09/2009

408 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Geert Noorman, Director dated 9/1/09 re: Dutch objections and concerns Google Book Settlement. Document ﬁled by The Dutch Publishers Association (NUV).(pl) (Entered: 09/10/2009)

09/09/2009 409 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District

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of New York from Eckhart Holzboog dated 9/1/09 re: We therefore joinin the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations that includes the Borsenverein des Deutschen Buchhandels and others, for the reasons presented to this Court by those individuals and entities. Document ﬁled by Frommann-holzboog e.K..(pl) (Entered: 09/10/2009)

09/09/2009

410 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Thomas Grundmann dated 9/1/09 re: We write to object to the Settlement Agreement. Document ﬁled by Bouvier Berlag.(pl) (Entered: 09/10/2009)

09/09/2009

414 LETTER addressed to Ofﬁce of the Clerk from Maria Schonefeld dated 8/31/2009 re: We write to object to the Settlement Agreement. (jpo) (Entered: 09/10/2009)

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420 LETTER addressed to Mr. McMahon from Tony Simpson dated 9/2/09 re: The proposed settlement affects published authors and rights holders. The NZSA owns the rights to numerous publications as well as being the principal advocate for the professional interests of New Zealand's writers, actively working to protect copyright through contractual negotiations. The proposed settlement affects our copyright and that of our members; We urge the Court to rejec the propsed settlement on the grounds as detailed above. (mro) (Entered: 09/10/2009)

09/09/2009

422 LETTER addressed to Ofﬁce of the Clerk J. Michael McMahon from Prof. Dr. Rainer Kuhlen dated 8/31/09 re: objection to the Settlement Agreement. Document ﬁled by "Copyright for Education and Science" (CCES).(pl) (Entered: 09/10/2009)

09/09/2009

423 LETTER addressed to Ofﬁce of the Clerk from Kurt Mattes dated 9/1/09 re: I am owner of the Mattes Verlag GmbH, a book publisher located at Heidelberg in Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)

09/09/2009

429 LETTER addressed to Mr. McMahon from Alison Gray dated 9/2/09 re: I write to object to the proposed settlement as a class member; For the reasons listed herein, I urge the Court to reject the proposed settlement. (mro) (Entered: 09/10/2009)

09/09/2009

457 LETTER addressed to Judge Denny Chin from Owen Atkinson dated 9/4/09 re: The Authors' Licensing Collecting Society(ALCS) wishes to submit this letter in relation to the ﬁnal settlement approval in this case; The proposed Google settlement agreement is an important issue for our members; We have already identiﬁed more than 18,000 of our members and 37,000 works as being directly affected by the settlement. Document ﬁled by Owen Atkinson.(mro) (Entered: 09/10/2009)

09/09/2009

492 LETTER addressed to Judge Denny Chin from Giles Sandeman Allen dated 9/4/2009 re: Counsel writes to request an amendment in the determination of "in print". Please can the following clause or something similar be inserted, into the Attachment A to Settlement Agreement, probably at 3.2 (a)(i)(4), to say: "A Book is not "in-print" if the author-publisher contract is governed by foreign law which allows for automatic reversion to the Author of rights in the Book and the criteria for such automatic reversion have been met." (jfe) (Entered: 09/10/2009)

09/09/2009

500 LETTER addressed to Sir from Racheli Edelman dated 4/9/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/09/2009

507 LETTER addressed to J. Michael McMahon from Eva Dreikurs Feruson dated 8/29/2009 re: As copyright holder for the published works of Rudolf Dreikurs, Sadie Dreikurs, and Eva Dreikurs Ferguson, I am writing to send my objection regarding the

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Settlement between Google and Authors. I wish to be a member of the Settlement and request the Court to take into account my concerns when ﬁnalizing the Settlement. (jmi) (Entered: 09/11/2009)

09/09/2009

509 LETTER addressed to Judge Denny Chin from Autouio dated 9/8/2009 re: The Federacion de Gremios de Editores de Espaiia (FGEE) is a private entity representing the interest of the publishing sector in Spain. We are writing to you in regards to the proposed Settlement Agreement of the class action copyright infringement litigation brought by the U.S. Author's Guild and others against Google Inc (hereinafter the "Settlement"). (jmi) (Entered: 09/11/2009)

09/09/2009

510 LETTER addressed to Ofﬁce of the Clerk from Dr. Zsuzsanna Bazing dated 9/1/2009 re: My name is Dr. Zsuzsanna Bazing, and I am the managing director of the Dialog Campus Kiado-NORDEX GmbH, a book publisher located in Passau Germany. Dialog Campus Kiado-NORDEX GmbH is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)

09/09/2009

511 LETTER addressed to Ofﬁce of the Clerk from Dr. Zsuzsanna Bazing dated 9/1/2009 re: My name is Dr. Zsuzsanna Bazing, and I am the managing director of the Schenk Verlag GmbH, a book publisher located in Passau Germany. Schenk Verlag GmbH is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)

09/10/2009

411 LETTER addressed to Ofﬁce of the Clerk from Gerhard Denndorf dated 9/2/2009 re: We write to object to the Settlement Agreement. (jpo) (Entered: 09/10/2009)

09/10/2009

412 LETTER addressed to Ofﬁce of the Clerk from Kristoffer Lind dated 8/31/2009 re: We write to object the Settlement Agreement. (jpo) (Entered: 09/10/2009)

09/10/2009

413 LETTER addressed to Ofﬁce of the Clerk from Bengt Fasth dated 8/31/2009 re: We write to object to Settlement Agreement. (jpo) (Entered: 09/10/2009)

09/10/2009

415 LETTER addressed to Judge Denny Chin from Salley Shannon dated 9/4/09 re: As the author of several books, plus portions of anthologies, all of which were published before September 5, 2009, I write to put my objections before you; The so-called remedy is disproportionate, duplicitous, and bears little relationship to the offense; I do recognize that much about how Google operates its proprietary, making it difﬁcult to monitor any limitations. Nevertheless, please direct that limits be set. It is time.(mro) (Entered: 09/10/2009)

09/10/2009

416 LETTER addressed to Mr. McMahon from Deborah Burnside dated 9/2/09 re: I write to object to the Proposed Settlement as a class member in support of the New Zealand Society of Author's objection. I am a New Zealand author and citizen and my books are published by New Zealand and Australian publishers.(mro) (Entered: 09/10/2009)

09/10/2009

417 LETTER addressed to Ofﬁce of the Clerk from Klaus-Thorsten Firnig dated 9/1/09 re: I am Managing Director of the EGMONT Verlagsgesellschaften mbH, a book publisher located in Cologne, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)

09/10/2009 419 LETTER addressed to Ofﬁce of the Clerk from Carola Muller dated 9/2/09 re: I am

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CEO of the publishing house Vandenhoeck & Ruprecht, a book publisher located in Gottingen, Germany; We join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
421 LETTER addressed to Mr. McMahon from Daphne Clair de Jong dated 9/2/09 re: I write to object to the proposed settlement as a class member; I urge the Court to reject the proposed settlement on the grounds listed herein. (mro) (Entered: 09/10/2009)
424 LETTER addressed to Ofﬁce of the Clerk from Manfred Krick dated 9/2/09 re: We are a German publishing house having its registered ofﬁce at Bad Homburg, Germany. As a major publisher in the area of educational products we are distributing about 300 different educational books up to date for which we are holding the US copyright. As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. (mro) (Entered: 09/10/2009)
425 LETTER addressed to Ofﬁce of the Clerk from Manfred Metzner re: I am CEO of the Verlag Das Wunderhorn GmbH, a book publisher located in Heidelberg, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
426 LETTER addressed to Ofﬁce of the Clerk from Hans Freiwald dated 9/2/09 re: I am Editorial Director of the CW Niemeyer Buchverlage GmbH, a book publisher located in Hameln, Germany; We write to object to the settlement agreement. (mro) (Entered: 09/10/2009)
427 LETTER addressed to Ofﬁce of the Clerk from Karl-Heinz Remmers dated 9/1/09 re: I am CEO of the Solarpraxis AG, a book publisher located in Berlin, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
430 LETTER addressed to Ofﬁce of the Clerk from Prof. Dr. Wulf D. v. Lucius dated 9/2/09 re: I am CEO of the Lucius & Lucius Berlagsgesellschaft mbH, a book publisher located in Stuttgart, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
431 LETTER addressed to Ofﬁce of the Clerk from Dr. Hans-Robert Cram dated 9/2/09 re: I am managing director of the Dietrich Reimer Verlag GmbH, a book publisher located in Berlin, Germany, with a book list of more than 1,800 titles; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)
432 LETTER addressed to Ofﬁce of the Clerk from Michael Schmitt, Parzeller & Co. KG dated 9/1/09 re: I am managing director of Parzeller & Co. KG, a book publisher located in Fluda, Germany; We write to object to the settlement agreement. We do not have the

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resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)

09/10/2009

433 LETTER addressed to Ofﬁce of the Clerk from Daniela Filthaut dated 9/1/09 re: I am publishing director of the Gerstenberg Verlag GmbH & Co. KG, a book publisher located in Hildeshein, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) (Entered: 09/10/2009)

09/10/2009

434 LETTER addressed to Ofﬁce of the Clerk from Adrian Schommers dated 9/2/09 re: I am the managing director of the Verlag Stahleisen GmbH, a book publisher located in Dusseldorf, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Adrian Schommers.(mro) (Entered: 09/10/2009)

09/10/2009

435 LETTER addressed to Ofﬁce of the Clerk from Adrian Schommers dated 9/2/09 re: I am managing director of the Giesserei-Verlag GmbH, a book publisher located in Duseeldorf, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Adrian Schommers.(mro) (Entered: 09/10/2009)

09/10/2009

436 LETTER addressed to Ofﬁce of the Clerk from Adrian Schommers dated 9/2/09 re: I am the managing director of the Montan-und Wirtschaftsverlag Gmbh, a book publisher located in Dusseldorf, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Adrian Schommers.(mro) (Entered: 09/10/2009)

09/10/2009

437 LETTER addressed to Ofﬁce of the Clerk from Dag Hernried dated 9/1/09 re: I am managing director of the Alfabeta Bokforlag AB, a book publisher located in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Dag Hernried.(mro) (Entered: 09/10/2009)

09/10/2009

438 LETTER addressed to Ofﬁce of the Clerk from Lena Andersson dated 9/2/09 re: I am Managing Director of the Berghs Forlag AB, a book publisher located in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Lena Andersson.(mro) (Entered: 09/10/2009)

09/10/2009 439 LETTER addressed to Ofﬁce of the Clerk from Catrine Christell Grimlund dated
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8/31/09 re: I am owner of the Bokforlaget Opal AB, a book publisher located in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Catrine Christell Grimlund.(mro) (Entered: 09/10/2009)
440 LETTER addressed to Ofﬁce of the Clerk from David Stansvik dated 8/31/09 re: I am managing director of the Bokforlaget Nya Doxa AB, a book publisher located in Nora, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by David Stansvik.(mro) (Entered: 09/10/2009)
441 LETTER addressed to Ofﬁce of the Clerk from Par Sjolinder dated 9/2/09 re: I am junior editor of the Modernista, a book publisher located in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Par Sjolinder.(mro) (Entered: 09/10/2009)
442 LETTER addressed to Judge Denny Chin from Kristoffer Lind dated 8/30/09 re: I am chairman of the Nordic Independent Publishers Association (Nordiska Oberoende Forlagas Forening, NOFF) located in Stockholm, Sweden. I write on behalf of NOFF in connection with the proposed settlement of the class action copyright infringement litigation brought by the US Authors Guild and others against Google's Book search service; We urge this Court not to approve the settlement agreement, for the reasons herein; To the extent necessary, we respectfully request that this Court accept this letter as an amicus curiae submission. Document ﬁled by Kristoffer Lind.(mro) (Entered: 09/10/2009)
443 LETTER addressed to Ofﬁce of the Clerk from Karl Heinz Bonny dated 9/2/09 re: I am CEO of Landwirtschaftsverlag GmbH, a book publisher in Munster, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Karl Heinz Bonny.(mro) (Entered: 09/10/2009)
444 LETTER addressed to Ofﬁce of the Clerk from Andreas Schulz dated 9/2/09 re: I am the CEO of the Vista Point Verlag GmbH, a book publisher located in Cologne, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Andreas Schulz.(mro) (Entered: 09/10/2009)
445 LETTER addressed to Ofﬁce of the Clerk from Dr. Martin Wagner dated 9/2/09 re: I am legal counsel and head of the legal department of Langenscheidt KG, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign

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publishers and publishing associations. Document ﬁled by Martin Wagner.(mro) (Entered: 09/10/2009)
446 LETTER addressed to Ofﬁce of the Clerk from Dr. Hans-Jurgen Dietrich dated 9/1/09 re: I am the publishing director of the Ergon-Verlag GmbH, a book publisher located in Wurzburg, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Dr.Hans-Jurgen Dietrich.(mro) (Entered: 09/10/2009)
447 LETTER addressed to Ofﬁce of the Clerk from Dr. Susanne Greiner dated 9/1/09; re: I am Geschaftsfuhrer of the Johannes Verlag Einsiedeln, a book publisher located in Freiburg, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations Document ﬁled by Susanne Greiner.(mro) (Entered: 09/10/2009)
448 LETTER addressed to Ofﬁce of the Clerk from Harald Kirbach dated 9/1/09 re: I am managing director of the Wirtschaftsverlag, a book publisher located in Bremerhaven, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations; We also wish to inform the Court that our company did not receive any written notice of the settlement agreement. Document ﬁled by Harald Kirbach.(mro) (Entered: 09/10/2009)
449 LETTER addressed to Ofﬁce of the Clerk from Chris Schoen dated 9/1/09 re: I am CEO of ibidem-Verlag J. Haunschild/C. Schon GbR, a book publisher located in Suttgart and Hannover, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Chris Schoen.(mro) (Entered: 09/10/2009)
450 LETTER addressed to Ofﬁce of the Clerk from Cordula Walter-Bolhofer dated 9/1/09 re: I am director of the Calypso Verlag, a book publisher located in 53819 Neunkirchen, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations; Our company did not receive any written notice of the settlement agreement, nor did we see any published notice of the settlement agreement. Document ﬁled by Cordula Walter-Bolhofer.(mro) (Entered: 09/10/2009)
451 LETTER addressed to Ofﬁce of the Clerk from Georg Holzmeister dated 9/1/09 re: I am general manager of the Fidula-Verlag Holzmeister GmbH, a book publisher located in Boppard/Rhine in Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Georg Holzmeister.(mro) (Entered: 09/10/2009)

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452 LETTER addressed to Ofﬁce of the Clerk from Joachim Weidler dated 9/1/09 re: I am the publisher of Weidler Buchverlag Berlin, a book publisher located in Berlin (Germany); We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Joachim Weilder.(mro) (Entered: 09/10/2009)
453 LETTER addressed to Ofﬁce of the Clerk from Peter Hohl dated 9/1/09 re: I am managing director of hte SecuMedia Verlag, a book publisher located in Gai-Algesheim, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Peter Hohl.(mro) (Entered: 09/10/2009)
454 LETTER addressed to Ofﬁce of the Clerk from Dr. Reinhard Martini dated 9/2/09 re: I am the publisher of Junfermann Verlag, a book publisher located in Paderborn, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Reinhard Martini.(mro) (Entered: 09/10/2009)
455 LETTER addressed to Ofﬁce of the Clerk from Torbjorn Santerus re: I am founder and owner of the Santerus Forlag, a book publisher located in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Torbjorn Santerus.(mro) (Entered: 09/10/2009)
456 LETTER addressed to Judge Denny Chin from Russell Davis dated 9/2/09 re: This letter is sent in protest to the proposed settlement in The Authors Guild, Inc, et al v. Google, Inc. The objection is lodged on behalf of the Science Fiction and Fantasy Writers of America, Inc. ("SFWA"), a non proﬁt organization of professional writers of science ﬁction, fantasy, and related genres; SFWA requests the opportunity to appear at the Fairness Hearing in this matter currently scheduled for October 7, 2009. Document ﬁled by Russell Davis.(mro) (Entered: 09/10/2009)
458 LETTER addressed to Mr. McMahon from Gordon Charles Ell (pen-name Pita Graham) dated 9/2/09 re: I write to object to the proposed settlement as a class member. The grounds for my objection are: Court has misapplied the Berne Convention; Court has exceeded jurisdiction; Author sub-class not applicable to NZ authors, etc. Document ﬁled by Gordon Charles Ell.(mro) (Entered: 09/10/2009)
459 LETTER addressed to Mr. McMahon from Antonette R. Jones dated 9/3/09 re: I write to object to the proposed settlement as a class member. The grounds for my objection are listed herein. Document ﬁled by Antonette R Jones.(mro) (Entered: 09/10/2009)
460 LETTER addressed to Mr. McMahon from Ann Louise Mitcalfe dated 9/3/09 re: I write to object to the proposed settlement as a class member. The grounds for my objection are listed herein. Document ﬁled by Ann Louise Mitcalfe.(mro) (Entered: 09/10/2009)
461 LETTER addressed to Mr. McMahon from Malcolm Campbell dated 9/3/09 re: I write

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to object to the proposed settlement as a class member. The grounds for my objection are listed herein. Document ﬁled by Malcolm Campbell.(mro) (Entered: 09/10/2009)

09/10/2009

462 LETTER addressed to Ofﬁce of the Clerk from Ulf Heimdahl dated 8/31/09 re: I am managing director of the Informationsforlaget Heimdahls AB, a book publisher in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Ulf Heimdahl.(mro) (Entered: 09/10/2009)

09/10/2009

463 LETTER addressed to Ofﬁce of the Clerk from Petter Luthersson dated 8/31/2009 re: Counsel writes to object to the Settlement Agreement. Counsel therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations that includes the Svenska Forlaggareforeningen, for the reasons presented to this Court by those individuals and entities. In addition, counsel wish to inform this Court that the written notice that our company received of the Settlement Agreement in Swedish was extremely difﬁcult to read and included a number of meaningless or nonsensical terms and had obviously been translated very poorly. (jfe) (Entered: 09/10/2009)

09/10/2009

464 OBJECTION AND NOTICE OF INTENT TO APPEAR OF CLASS MEMBER SHOJIRO AKASHI TO PROPOSED SETTLEMENT BETWEEN PLAINTIFFS THE AUTHORS GUILD, INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., ET AL. AND GOOGLE, INC. (db) (Entered: 09/10/2009)

09/10/2009

465 THE PROPOSED GOOGLE SETTLEMENT: Views from the Booksellers Association of the United Kingdom & Ireland Limited. (db) (Entered: 09/10/2009)

09/10/2009

466 SUPPLEMENTAL LIBRARY ASSOCIATION COMMENTS ON THE PROPOSED SETTLEMENT. By the Library Associations. (db) (Entered: 09/10/2009)

09/10/2009

467 OBJECTION AND NOTICE OF INTENT TO APPEAR OF CLASS MEMBER JUNJI SUZUKI TO PROPOSED SETTLEMENT BETWEEN PLAINTIFFS THE AUTHORS GUILD, INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC., ET AL. AND GOOGLE, INC. By 194 writers in Japan who are members of the Japan Visual Copyright Association. (db) (Entered: 09/10/2009)

09/10/2009

468 LETTER addressed to Ofﬁce of the Clerk from Johannes Lessmann dated 9/2/09 re: Join in the objections that have been presented to the Court by Scott Gant and the group of foreign publishers and publishing associations that includes the Borsenverein des Deutschen Buchhandels and others, for the reasons presented to the Court by those individuals and entities. (db) (Entered: 09/10/2009)

09/10/2009

469 LETTER addressed to Ofﬁce of the Clerk from Vittorio E. Klostermann dated 9/1/2009 re: Counsel writes to join in the objections that have been presented to this Court by Scott Gant and the group of Foreign publishers and publishing associations that includes the Borsenverein des Deutschen Buchhandels and others, for the reasons presented to this Court by those individuals and entities. (jfe) (Entered: 09/10/2009)

09/10/2009

470 LETTER addressed to Settlement Adminstrator from Frank P. Scibilia dated 9/2/2009 re: Counsel writes to inform you, Google, Inc., and all other interested parties (including Class Counsel and the so-called "Book Rights Registry") that EMI is opting out of the settlement in Authors Guild, Inc. et al. v. Google, Inc., 05 CV 8136 (DC) (the "Google Books Settlement" or the "Settlement"). (jfe) (Entered: 09/10/2009)

09/10/2009

471 LETTER addressed to Judge Denny Chin from Arnaud Nourry dated 9/3/2009 re: Hachette respectfully requests that this Court reject the Proposed Settlement and/or

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decline to certify the class with regard to non-US Rightsholders. (jfe) (Entered: 09/10/2009)

09/10/2009

472 LETTER addressed to Mr. Michael McMahon from Mr. E. A. Van Ingen dated 8/27/2009 re: Boom Publishers Amsterdam are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. Counsel would like to raise the following concerns and objections to this Settlement as set forth within.(jfe) (Entered: 09/10/2009)

09/10/2009

473 LETTER addressed to Ofﬁce of the Clerk from Ann Marie Skarp dated 8/31/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

474 LETTER addressed to Judge Denny Chin from Karsten Blauert and Marie Svane dated 9/1/09 re: Request that the Court accept this letter as an Amicus Curiae submission. (db) (Entered: 09/10/2009)

09/10/2009

475 LETTER addressed to Ofﬁce of the Clerk from Wolfgang Foerster dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement. Counsel therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations that includes the Borsenverein des Deutschen Buchhandels and others, for the reasons presented to this Court by those individuals and entities. In addition, counsel wish to inform this Court that their company did not receive any written notice of the Settlement Agreement, nor did they see any published notice of the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

476 LETTER addressed to Mr. McMahon from Margaret Jefferies dated 9/3/09 re: Objection to Proposed Settlement as a class member. (db) (Entered: 09/10/2009)

09/10/2009

477 LETTER addressed to Honorable Clerk from Jesus F. Gonzalez dated 8/25/2009 re: Counsel writes in objection to the Google Book Search Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

478 LETTER addressed to Judge Denny Chin from Karsten Blauert and Marie Svane dated 9/1/09 re: Request that the Court accept this letter as an Amicus Curiae submission. (db) (Entered: 09/10/2009)

09/10/2009

479 LETTER addressed to Mr..McMahon from Sander Knol dated 8/27/2009 re: Counsel writes to make the following objections and comments to the Google Book Settlement as set forth within. (jfe) (Entered: 09/10/2009)

09/10/2009

480 LETTER addressed to Judge Denny Chin from Lewis Hyde dated 8/31/2009 re: Counsel writes to object to some of the terms of the settlement that has been proposed by the litigants in Case No. 05 CV 8136, The Authors Guild, Inc., et al. v. Google Inc. (jfe) (Entered: 09/10/2009)

09/10/2009

481 LETTER addressed to Ofﬁce of the Clerk from Patrik Widlund dated 8/31/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

482 LETTER addressed to Sir Michael McMahon from Mai Spijkers dated 8/26/2009 re: Counsel writes in regards to the proposed Settlement Agreement between Google Inc., and the Author Guild and the Association of American Publishers. Counsel raises the following concerns and objections to the Settlement set forth within. (jfe) (Entered: 09/10/2009)

09/10/2009

483 LETTER addressed to Ofﬁce of the Clerk from Dorothea Kieler dated 9/1/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

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484 LETTER addressed to Ofﬁce of the Clerk from Mr. Helmuth Bauer-Callwey dated 9/1/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

485 LETTER addressed to Ofﬁce of the Clerk from Dieter Bergemann dated 9/1/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

486 LETTER addressed to Mr. McMahon from W.J. Van Oorschot dated 8/29/2009 re: Counsel writes to make the following objection and comments to the Google Book Search Settlement set forth within. (jfe) (Entered: 09/10/2009)

09/10/2009

487 LETTER addressed to Ofﬁce of the Clerk from Dr. med. Axel Bedurftig dated 9/1 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

488 LETTER addressed to Sir from Stuart Bernstein dated 8/31/2009 re: Counsel writes to object to the Google Book Settlement. (jfe) (Entered: 09/10/2009)

09/10/2009

489 LETTER addressed to Michael McMahon from Bert de Groot dated 8/25/2009 re: Counsel writes to draw your attention to the copyrights of the Dutch books owned by our publishing house which appear to be included in the settlement reached between Google and the Authors Guild and Association of American Publishers. Counsel should ﬁrst like to point out that they have not yet been consulted or heard in this settlement, even though our copyrights are involved. Google's actions have raised many questions, comments and objections as set forth within. (jfe) (Entered: 09/10/2009)

09/10/2009

490 THE GOOGLE SETTLEMENT: Letter dated 5/27/09 from Forlaeggerforeningen (Danish Publishers Association). (db) (Entered: 09/10/2009)

09/10/2009

491 LETTER addressed to Ofﬁce of the Clerk from Erik Hellqvist dated 8/31/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

493 LETTER addressed to Sir Michael McMahon from A.M.W. Holl dated 9/1/09 re: Objection to Proposed Settlement Agreement. (db) (Entered: 09/10/2009)

09/10/2009

494 LETTER addressed to Ofﬁce of the Clerk from Ann Spaak dated 8/31/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

495 LETTER addressed to Ofﬁce of the Clerk from Bror Tronbacke dated 8/31/09 re: We present this letter to this Court in English, for the Court's convenience and it was translated for us. (db) (Entered: 09/10/2009)

09/10/2009

496 LETTER addressed to Judge Denny Chin from Mathias Lilleengen dated 9/4/2009 re: Counsel writes on behalf of our member publishers in connection with the proposed settlement of the class-action copyright infringement litigation brought by the U.S. Authors Guild and others against Google's Book Search service. counsel respectfully request that this Court accept this letter as an amicus curiae submission. (jfe) (Entered: 09/10/2009)

09/10/2009

497 OBJECTION OF JAPANESE PUBLISHERS COMENT TO THE SETTLEMENT. by Japanese publishers. (jfe) (Entered: 09/10/2009)

09/10/2009

498 LETTER addressed to Ofﬁce of the Clerk from Juerg Flury dated 9/1/2009 re: Counsel writes in objection to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009 499 LETTER addressed to Ofﬁce of the Clerk from Dr. Andreas Barth dated 1/09/2009 re:

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Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

501 LETTER addressed to Mr. McMahon from Anthony Holcroft dated 9/3/2009 re: Counsel writes to object to the Proposed Settlement as a class member. (jfe) (Entered: 09/10/2009)

09/10/2009

502 LETTER addressed to Ofﬁce of the Clerk from Bausassessor Dipl.-Ing. Johannes Lohaus dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

503 LETTER addressed to Ofﬁce of the Clerk from Hildegard Wehler dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

504 LETTER addressed to Ofﬁce of the Clerk from Karin Low dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

505 LETTER addressed to Ofﬁce of the Clerk from Martin Kegel dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/10/2009)

09/10/2009

512 LETTER addressed to Ofﬁce of the Clerk from Dr. Peter Hanser-Strecker and Michael Petry dated 9/1/2009 re: Our name is Dr. Peter Hanser-Strecker (managing director and shareholder of Schott Music GmbH & Co. KG) and Michael Petry (managing director of the SCHOTT MUSIC GmbH & Co. KG). Schott Music GmbH & Co. KG is a music book publisher located in Mainz, Germany. SCHOTT MUSIC GmbH &Co. KG is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)

09/10/2009

513 LETTER addressed to J. Michael McMahon from Susan J. Gordon dated 8/30/2009 re: I am a professional book author and freelance magazine/newspaper writer objecting to the Google Book Settlement because it is not fair or good for writers or most publishers. Google gets to write copyright law, has no restrictions its use of reader information, and provides no language forbidding censorship. I also ﬁnd the premise that I am "in" (that is, accepting of the entire settlement agreement) unless I "opt out" to be unfair and outrageous. (jmi) (Entered: 09/11/2009)

09/10/2009

514 LETTER addressed to Judge Denny Chin from Paul N. Courant dated 9/4/2009 re: I, hereby, request this court's permission to submit this letter as an amicus curiae supporting ﬁnal settlement approval in the above-referenced case. (jmi) (Entered: 09/11/2009)

09/10/2009

515 LETTER addressed to Ofﬁce of the Clerk from Bernd Vincent Walbaum dated 9/1/2009 re: My name is Bernd Vincent Walbaum, and I am the managing director of Edition Peters GmbH resp. C. F. Peters GmbH & Co. KG, a publisher located in Frankfurt/Main, Germany. C. F. Peters is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. (jmi) (Entered: 09/11/2009)

09/10/2009

516 LETTER addressed to Ofﬁce of the Clerk from Bernd Vincent Walbaum dated 9/1/09 re: I am the managing direct of Edition Peters GmbH resp. C. F. Peters GmbH & Co. KG, a publisher located in Frankfurt/Main, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Bernd Vincent Walbaum.(mro) (Entered: 09/11/2009)

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517 LETTER addressed to Ofﬁce of the Clerk from Ingwert Paulsen dated 9/2/09 re: I am the owner of the Verlag der Nation Ingwet Paulsen Jr., a book publisher located in Husum, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Ingwert Paulsen.(mro) (Entered: 09/11/2009)
518 LETTER addressed to Judge Denny Chin from Sudi Shayesteh and Merrill Parra dated 9/8/09 re: We write this letter on behalf of the City University of New York Committee on student disability Issues to respectfully request that the court approve the settlement between the Authors Guild and Google in the above referenced case. Document ﬁled by Sudi Shayesteh, Merrill Parra.(mro) (Entered: 09/11/2009)
519 LETTER addressed to Judge Denny Chin from Gary Rhoades dated 9/4/09 re: The American Association of University Professors (AAUP) submits this letter in response to the proposed settlement agreement in this case. This letter is neither in opposition to nor in support of the proposed settlement agreement; instead it raises concerns about the Google Library Project and the proposed settlement agreement on behalf of the interests of college and university faculty and the public in enabling the free exchange of information. Document ﬁled by Gary Rhoades.(mro) (Entered: 09/11/2009)
520 LETTER addressed to Judge Denny Chin from Isabelle Jeuge-Maynart dated 9/3/09 re: I am a citizen of France and the legal representative (president) of Editions Larousse SAS; As a European publisher, Editions Larousse objects to the proposed settlement and strenuously urges the Court to reject it due to the signiﬁcant unfair and inequitable effects that it will have on all non-US Authors and Publishers. The proposed settlement is purely and simply unacceptable from the point of view of a European publisher. Document ﬁled by Isabelle Jeuge-Maynary.(mro) (Entered: 09/11/2009)
521 LETTER addressed to Judge Denny Chin from Nathalie Jouven dated 9/3/09 re: I am a citizen of France and Legal Representative of Les Editions Hatier SNC; As a European publisher, Les Editions Hatier SNC objects to the proposed settlement and strenuously urges the Court to reject it due to the signiﬁcant unfair and inequitable effects that it will have on all non-US Authors and Publishers. The proposed settlement is purely and simply unacceptable from the point of view of a European publisher. Document ﬁled by Nathalie Jouven.(mro) (Entered: 09/11/2009)
522 LETTER addressed to Judge Denny Chin from Serge Eyrolles dated 9/3/09 re: I am a citizen of France and President of the French Publishers Association, the leading association of book publishers in my country; On September 2, 2009, our Executive Committee and General Council formally authorized SNE to present objections to this Court regarding the settlement and objections are listed herein. Document ﬁled by Serge Enyrolles.(mro) (Entered: 09/11/2009)
523 LETTER addressed to Judge Denny Chin from Jesus Sanchez Garcia dated 9/3/09 re: I am a citizen of Spain and consejero-secretario del Consejo de Administacion de Grupo Editorial Bruno,SL; As a European publisher, Grupo Editorial Bruno SL objects to the proposed settlement and strenuously urges the Court to reject it due to the signiﬁcant unfair and inequitable effects that it will have on all non-US Authors and Publishers. The proposed settlement is purely and simply unacceptable from the point of view of a European publisher. Document ﬁled by Jesus Sanchez Garcia.(mro) (Entered: 09/11/2009)
524 LETTER addressed to Sir Michael McMahon from Mr. E.A. van Ingen dated 9/2/09; re: We are writing in regards to the proposed settlement agreement. We like to raise

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concerns and objections to this settlement, listed herein. Document ﬁled by E.A. van Ingen.(mro) (Entered: 09/11/2009)
525 LETTER addressed to Ofﬁce of the Clerk from Eva Swartz dated 9/2/09 re: I am the CEO of Natur & Kaltur, a book publisher located in Stockholm, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Eva Swartz.(mro) (Entered: 09/11/2009)
526 LETTER addressed to Judge Denny Chin from Arnaud Nourry dated 9/3/09 re: I am a citizen of France and Chief Executive Ofﬁcer of Hachette Livre SA; As a European publisher, Hachette Livre objects to the proposed settlement and strenuously urges the Court to reject it due to the signiﬁcant unfair and inequitable effects that it will have on all non-US Authors and Publishers. The proposed settlement is purely and simply unacceptable from the point of view of a European publisher. Document ﬁled by Arnaud Nourry.(mro) (Entered: 09/11/2009)
527 LETTER addressed to Ofﬁce of the Clerk from Vincent Montagne dated 9/4/09 re: I am chairman of Media Participations Paris, a publishing group operating in France, Belgium, and Switzerland through different subsidaries namely Dargaud, Dupuis, Le Lombard, Fleurus, Magniﬁcat, Mame, Mango, Kana, Rustica, etc; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Vincent Montagne.(mro) (Entered: 09/11/2009)
528 LETTER addressed to Ofﬁce of the Clerk from Bjorn Andersson dated 8/31/09 re: I am publisher of the Historiska Media, a book publisher located in Lund, Sweden, Historika Media is a member of the settlement class embraced by the proposed settlement agreement; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Bjorn Andersson.(mro) (Entered: 09/11/2009)
529 LETTER addressed to Judge Denny Chin from Ben-Ami Freier dated 9/9/09 re: This letter is being submitted to respectfully request that the Court approve the settlement between the Authors Guild and Google. We believe the proposed settlement represents a historic opportunity to increase access to a vast library of information by people with disabilities. Document ﬁled by Ben-Ami Freier.(mro) (Entered: 09/11/2009)
530 LETTER addressed to Judge Denny Chin from Alain Kouck dated 9/2/09 re: We, Editis Holding, are writing to you in regards to the proposed settlement agreement between Google, Inc and the Authors Guild and the Association of American Publishers. We would like to raise objections that arise in Europe/France from the above mentioned settlement agreement; Objections listed herein. Document ﬁled by Alain Kouck.(mro) (Entered: 09/11/2009)
531 OBJECTION AND NOTICE TO APPEAR ON BEHALF OF ABSENT CLASS MEMBER, DAVID MEININGER (jmi) (Entered: 09/11/2009)
532 QUESTIA MEDIA, INC.'S AMICUS CURIAE BRIEF IN OPPOSITION TO THE SETTLEMENT AGREEMENT Questia Media, Inc. ("Questia") urges the Court not to

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approve the Settlement Agreement between Google, Inc. and the Plaintiffs. Among other things, the settlement calls for Google. (jmi) (Entered: 09/11/2009)

09/10/2009

533 OBJECTION OF JIRO MAKINO AND IWAO KIDOKORO TO THE PROPOSED SETTLEMENT AND TO CERTIFICATION OF THEPROPOSED SETTLEMENT CLASS AND SUB-CLASSES The Settlement Agreement contains serious defects in that it requires a decision which exceeds proper scope of jurisdiction for the case and in that it ignores the global nature of the Internet (its capacity that all of the users in the entire world can use it simultaneously). It disregards the fact that works will be distributed in the entire world, and regards the issue as a domestic issue within the U.S. Furthermore, the Settlement Agreement focuses its scope only on a legal decision as to permissibility of digitization of the subject works, and contains signiﬁcant defects in that it ignores the underlying issue of existing mode of "digital data search system." It fails to acknowledge important issues of how to guarantee fairness and diversity of the search by giving priority to economy without making sufﬁcient consideration in cultural diversity. As a result, it suffers from extreme bias of the search results. For the reasons explained above, we respectfully request that the Court to reject the Settlement Agreement or decline to certify the class with respect to Japanese or foreign authors. (jmi) (Entered: 09/11/2009)

09/10/2009

534 OBJECTIONS TO THE PROPOSED SETTLEMENT AND MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE For the foregoing reasons and under the authority of Rule 24, Intervenors respectfully claim their right to intervene as of right. Additionally, Intervenors give notice of their intention to appear and speak at the October 7, 2009 fairness hearing. (jmi) (Entered: 09/11/2009)

09/11/2009

418 LETTER addressed to Ofﬁce of the Clerk from Markus Hatzer dated 9/2/09 re: I am the managing director of the Studienverlag GmbH, a book publisher located in Austria; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. (mro) Modiﬁed on 9/11/2009 (mro). (Additional attachment(s) added on 9/11/2009: # 1 letter doc) (mro). (Entered: 09/10/2009)

09/11/2009

508 LETTER addressed to J. Michael McMahon from Michael Kincaid dated 8/28/2009 re: I am writing to object to the class-action Google copyright settlement. As an author potentially affected by the Settlement, a labyrinth of terms, conditions, and deﬁnitions formulated without my consultation, I object, ﬁrst, to the distraction and inconvenience entailed in trying to comprehend those terms, conditions, etc.; to discern the increment of justice (if any) contained therein; and to decide on a ﬁt response, one that does justice to my own interests. (jmi) (Entered: 09/11/2009)

09/11/2009

535 LETTER addressed to Judge Denny Chin from Jesus Sanchez Garcia dated 9/3/2009 re: Objections of EDELSA GRUPO DIDASCALIA, S.A. to Proposed Class Settlement. (jmi) (Entered: 09/11/2009)

09/11/2009

536 LETTER addressed to Ofﬁce of the Clerk from Dorotea Bromberg dated 8/31/2009 re: My name is Dorotea Bromberg, and I am CEO of the Brombergs Bokforlag AB, a book publisher located in Stockholm, Sweden. Brombergs Bokforlag AB is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)

09/11/2009

537 LETTER addressed to Judge Denny Chin dated 9/3/2009 re: I, Serge Eyrolles, am a citizen of France and President of the French Publishers Association (Syndicat National

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de l'Editioni SNE), the leading association of book publishers in my country. SNE represents 530 member companies whose combined business endeavors account for the bulk of French publishing. Its missions include: advocating publishers' interests, supporting creativity by defending freedom to publish and promoting the respect of intellectual property rights, promoting and defending the ﬁxed book price and promoting literacy. (jmi) (Entered: 09/11/2009)

09/11/2009

538 LETTER addressed to J. Michael McMahon from Mr. W.J. Sbetenhorst dated 9/2/2009 re: We, Boom uitgevers Den Haag, are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jmi) (Entered: 09/11/2009)

09/11/2009

539 LETTER addressed to J. Michael McMahon from Racheli Edelman dated 4/9/2009 re: The scope and the details of the Google Settlement agreement were brought to our attention too late to tile an objection in court. Only today I have found out that one can also send a letter to the court in this matter and state our position. Reading the settlement agreement between Google and its American parties. (jmi) (Entered: 09/11/2009)

09/11/2009

540 LETTER addressed to Ofﬁce of the Clerk from Ann Douglas dated 9/4/2009 re: As the author of 28 works of non-ﬁction, both for adults and for children, as well as numerous anthology contributions, I am writing to vigorously oppose the terms of the Google Books settlement. (jmi) (Entered: 09/11/2009)

09/11/2009

541 LETTER addressed to J. Michael McMahon from Dana P. Tierney dated 9/3/2009 re: Our clients are members of the publisher subclass and the purpose of this correspondence is to advise that they "opt out" of the Google Book Settlement. (jmi) (Entered: 09/11/2009)

09/11/2009

542 LETTER addressed to J. Michael McMahon from Jo Tatchell dated 9/3/2009 re: I am opting in but would like to register the following concerns: Concern about the lack of European representation on the Book Rights Registry, and the ability of the settlement to ensure comprehensive distribution of income to authors. (jmi) (Entered: 09/11/2009)

09/11/2009

543 LETTER addressed to J. Michael McMahon from Gary Mokotoff dated 9/4/2009 re: Avotaynu is a publisher of books for which the copyright owners are the authors themselves. We wish to object to the proposed settlement between Google, Inc. and various copyright owners. (jmi) (Entered: 09/11/2009)

09/11/2009

544 LETTER addressed to Judge Denny Chin from Michael W. Perry dated 9/2/2009 re: I should introduce myself. I was also one of the seven authors or their representatives who requested that the court extend the deadlines for the Google settlement by four months. (jmi) (Entered: 09/11/2009)

09/11/2009

545 LETTER addressed to J. Michael McMahon from Dr. Diane A. Hebley dated 9/3/2009 re: As a class member, I wish to support the New Zealand Society of Authors in their objection to the Proposed Settlement. (jmi) (Entered: 09/11/2009)

09/11/2009

546 LETTER addressed to J. Michael McMahon from Gary K. Hebley dated 9/3/2009 re: As a class member, I wish to support the New Zealand Society of Authors in their objection to the Proposed Settlement. (jmi) (Entered: 09/11/2009)

09/11/2009

547 OBJECTION TO CLASS ACTION SETTLEMENT AND NOTICE OF INTENT TO APPEAR OF THE UNDERSIGNED STATES REPRESENTED BY THEIR RESPECTIVE ATTORNEYS GENERAL ON BEHALF OF THEMSELVES AND REGISTERED CHARITIES WITHIN THEIR POLITICAL BOUNDARIES In closing if this Court approves the Proposed Settlement, the State Objectors suggests a modiﬁcation of the proposed settlement agreement requiring the parties to include a

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provision in the BRR's articles of incorporation or other enabling document to comply with state unclaimed property laws in the same manner as ASCAP and BMI. This will ensure the fairest and most reasonable result for rightsholders, ensure the preservation of charitable assets and further the public purposes of the unclaimed property laws. (jmi) (Entered: 09/11/2009)
548 LETTER addressed to Ofﬁce of the Clerk from Annette Sabelus dated 9/2/2009 re: My name is Annette Sabelus, and I am Head of Rights Department of the Piper Verlag GmbH, a book publisher located in Munich, Germany. Piper Verlag is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)
549 QUESTIA MEDIA, INC.'S AMICUS CURIAE BRIEF IN OPPOSITION TO THE SETTLEMENT AGREEMENT By ignoring copyright laws and by twisting this class action settlement to its own ends, Google will obtain a monopoly for the commercial exploitation of millions of orphan works. Questia asks the Court not to provide Google with an unfair advantage. The orphan works problem can be solved, but it should be solved through legislation for the beneﬁt of all, not through a class action settlement for the beneﬁt of one company. (jmi) (Entered: 09/11/2009)
550 OBJECTION TO PROPOSED SETTLEMENT Unless both the foregoing concerns can be resolved, I respectfully request that the proposed settlement agreement be rejected by this Court. I am submitting this in my capacity as an author and a member of the Authors Guild, not in my capacity as a lawyer. (jmi) (Entered: 09/11/2009)
551 LETTER addressed to Judge Denny Chin from Oliver Nora dated 9/3/2009 re: For each of the foregoing reasons, Fayard respectfully requests that this Court reject the Proposed Settlement and/or decline to certify the class with regard to non-US Rightsholders. (jmi) (Entered: 09/11/2009)
552 LETTER addressed to J. Michael McMahon from Springer Uitgeverij dated 9/2/2009 re: We, Springer Uitgeverij BV, are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jmi) (Entered: 09/11/2009)
553 LETTER addressed to Judge Denny Chin from Alian Kouck dated 9/2/2009 re: We, EDITIS HOLDING, are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild (AG) and the Association of American Publishers (AAP). We would like to raise the following objections that arise in Europe/France from the above mentioned Settlement Agreement. (jmi) (Entered: 09/11/2009)
554 LETTER addressed to Ofﬁce of the Clerk from Eginhard Hohne dated 9/3/2009 re: we are a Hungarian publishing house having its registered ofﬁce at Celldomolk, Hungary. As a major publisher in the area of educational products we are distributing about 300 different educational books up-to-date for which we are holding the US copyright. As a so called rightsholder under the Settlement Agreement we object. (jmi) (Entered: 09/11/2009)
555 LETTER addressed to Judge Denny Chin from Jurgen-Matthias Springer dated 9/2/2009 re: My name is Jurgen-Matthias Springer, and I am Managing Director of the Peter Lang GmbH, a book publisher located in Frankfurt am Main, Germany. Peter Lang GmbH is a member of the settlement class embraced by the proposed settlement agreement that is

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before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. (jmi) (Entered: 09/11/2009)
556 LETTER addressed to Ofﬁce of the Clerk from Dr. Joachin Kaps dated 9/2/2009 re: My name is Dr. Joachim Kaps, and I am Managing Director of TOKYOPOP GmbH, a book publisher located in Hamburg, Germany. TOKYOPOP GmbH is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)
557 LETTER addressed to Ofﬁce of the Clerk from Dr. Albrecht Weiland dated 9/3/2009 re: My name is Dr. Albrecht Weiland, and I am CEO of the Verlag Schnell & Steiner GmbH a book publisher located in Regensburg, Germany. Verlag Schnell & Steiner GmbH is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)
558 Objection of Editions Larousse SAS to Proposed Class Settlement. For each of the foregoing reasons, Editions Larousse respectfully requests that this Court reject the Proposed Settlement and/or decline to certify the class with regard to non-US Rightsholders. (jmi) (Entered: 09/11/2009)
559 LETTER addressed to Ofﬁce of the Clerk from Ursula Rosengart dated 9/1/09 re: I am CEO of the GABAL Verlag, a book publisher located in Offenbach, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Ursula Rosengart.(mro) (Entered: 09/11/2009)
560 LETTER addressed to Ofﬁce of the Clerk from Alexander Potyka dated 9/1/09 re: I am manager of the Picus Verlag Ges. m.b.H., a book publisher located in Vienna, Austria; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Alexander Potyka.(mro) (Entered: 09/11/2009)
561 LETTER addressed to Ofﬁce of the Clerk from Dr. Carsten C. Hubner dated 9/2/09 re: I am managing director of the ADAC Verlad GmbH, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Carsten C. Hubner.(mro) (Entered: 09/11/2009)
562 LETTER addressed to Sir from Elisabeth Zerlauth dated 9/3/09 re: We, E. DORNER GmbH, are an Austrian publishing house having its registered ofﬁce at Vienna, Austria. As a major publisher in the area of educational products we are distributing about different educational up to date for which we are holding the US copyright; As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. Document ﬁled by Elisabeth Zerlauth.(mro) (Entered: 09/11/2009)
563 LETTER addressed to Mr. McMahon from Johan de Koning dated 9/3/09 re: We,

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Standaard Uitgeverij NV, are writing you in regards to the proposed settlement agreement between Google, Inc and the Authors Guild, etc. We raise concerns and objections to this settlement listed herein. Document ﬁled by Johan de Koning.(mro) (Entered: 09/11/2009)
564 LETTER addressed to Ofﬁce of the Clerk from Joachim Kamphausen dated 9/2/09 re: I am publisher of the J. Kamphausen Verlag & Distribution GmbH, located in Bielefeld, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Joachim Kamphausen.(mro) (Entered: 09/11/2009)
565 LETTER addressed to Ofﬁce of the Clerk from Michael Cramm dated 9/2/09 re: I am the contract manager of the Taschen GmbH, a book publisher located in Cologne, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Michael Cramm.(mro) (Entered: 09/11/2009)
566 LETTER addressed to Ofﬁce of the Clerk from Albrecht Oldenbourg dated 9/3/09 re: We are a German publishing house having its registered ofﬁce at Wuerzburg, Germany; As a so called rights holder under the settlement agreement we object. Document ﬁled by Albrecht Oldenbourg.(mro) (Entered: 09/11/2009)
567 LETTER addressed to Ofﬁce of the Clerk` from Regina Lindhoff and Simone Linden dated 9/2/09 re: I am the head of the public relations of Mehr Zeit fur Kinder e. V., a book publisher located in Frankfurt, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Regina Lindhoff.(mro) (Entered: 09/11/2009)
568 LETTER addressed to Mr. McMahon from John C. Lorenz dated 8/30/09 re: Please accept this letter as the formal objection of the American Association of Petroleum Geologists to the Google Copyright settlement referenced above. Document ﬁled by John C. Lorenz.(mro) (Entered: 09/11/2009)
CASHIERS OFFICE REMARK on 232 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/01/2009, Receipt Number 698924. (jd) (Entered: 09/11/2009)
CASHIERS OFFICE REMARK on 266 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/02/2009, Receipt Number 699011. (jd) (Entered: 09/11/2009)
569 LETTER addressed to Sir or Madam from Dana P. Tierney dated 9/3/09 re: Our clients are members of the publisher subclass and the purpose of this correspondence is to advise that they "opt out" of the Google Book Settlement. Document ﬁled by Dana P. Tierney.(mro) (Entered: 09/11/2009)
570 LETTER addressed to Ofﬁce of the Clerk from Paul A. Heider dated 9/2/09 re: I am Geschafsfuhrer of the Steyler Verlag and Steyler Verlagsbuchhandlung GmbH, a book publisher located in Nettetal, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join

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in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Paul A. Heider.(mro) (Entered: 09/11/2009)
571 LETTER addressed to Judge Denny Chin from Sara Mella dated 9/2/09 re: I am the managing director of Otava Publishing Company Ltd located in Helsinki, Finland; I write to let this Court know that our company as a copyright hold is opposed to this settlement agreement. Document ﬁled by Sara Mella.(mro) (Entered: 09/11/2009)
572 LETTER addressed to Ofﬁce of the Clerk from Mie Li Doy dated 9/3/2009 re: My name is Irene Lindon and I am CEO of LES EDITIONS DE MINUIT S.A., a book publisher located in France. LES EDITIONS DE MINUIT is a member of the settlement class embraced by t e proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/11/2009)
573 LETTER addressed to Sir from Diana Kimpton dated 9/2/09 re: I am a member of the settlement class for this case and I am writing to object to the proposed settlement agreement. Document ﬁled by Diana Kimpton.(mro) (Entered: 09/11/2009)
574 LETTER addressed to Ofﬁce of the Clerk from Norbert Treuheit dated 9/1/09 re: I am publisher and executive of the ars vivendi publishing house, a book publisher located in Cadolzburg, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Norbert Treuheit.(mro) (Entered: 09/11/2009)
575 LETTER addressed to J. Michael McMahon from K.D. Wood dated 9/4/2009 re: Iam a New Zealand citizen and a New Zealand author, publisher; illustrator etc., with copyrights that are protected by the New Zeal d Copyright Act 1994, by any contracts under copyright protection, and by the Berne Convention for the Protection of Literary and Artistic Work. The United States does not have jurisdiction to over-ride these protections. (jmi) (Entered: 09/11/2009)
576 LETTER addressed to Ofﬁce of the Clerk from Teresa Cremisi dated 9/3/09 re: I am CEO of the Flammarion Group, a book publisher in France; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Teresa Cremisi.(mro) (Entered: 09/11/2009)
577 LETTER addressed to Ofﬁce of the Clerk from Kristin Nilsson dated 8/31/09 re: I am publisher of the Folkuniversitetets forlag, a book publisher located in Lund, Sweden; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Kristin Nilsson.(mro) (Entered: 09/11/2009)
578 LETTER addressed to Ofﬁce of the Clerk from Helga Schreiber, ppa dated 9/3/09 re: I am publishing director of Buchverlage LangenMuller Herbig nymphenburger terra magica, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal

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brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Brigitte Fleissner-Mikorey.(mro) (Entered: 09/11/2009)

09/11/2009

579 LETTER addressed to Ofﬁce of the Clerk from Dr. Sven Fund dated 9/3/09; re: I am the managing director of the Walter de Gruyter GmbH & CO. KG, Sellier de Gruyter and De Gruyter Rechtswissenschaften-Verlags GmbH, a book publishers located in Berlin, Germany; I am publishing director of Buchverlage LangenMuller Herbig nymphenburger terra magica, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Sven Fund.(mro) (Entered: 09/11/2009)

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580 LETTER addressed to Judge Denny Chin from Olivier Nora dated 9/3/09 re: I am a citizen of France and chief executive ofﬁcer of Librairie Artheme Fayard SA; Fayard objects to the proposed settlement and strenuously urges the Court to reject it. Document ﬁled by Olivier Nora.(mro) (Entered: 09/11/2009)

09/11/2009

581 LETTER addressed to Ofﬁce of the Clerk from Kobushi Shobo dated 8/31/09 re: For the reasons listed herein, Kobushi Shobo protests the actions carried out by Google, Inc, and demands that Google, Inc. immediately cease its digitalization and release to the public of books published by Kobushi Shobo. Document ﬁled by Kobushi Shobo.(mro) (Entered: 09/11/2009)

09/11/2009

582 LETTER addressed to Ofﬁce of the Clerk from Bernhard Bucker dated 9/3/09 re: I am ﬁnancial director of Suhrkamp GmbH & Co. KG, a book publisher located in Frankfurt, Germany; I am publishing director of Buchverlage LangenMuller Herbig nymphenburger terra magica, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Bernhard Bucker.(mro) (Entered: 09/11/2009)

09/11/2009

583 LETTER addressed to Sir Michael McMahon from Hans Nijenhuis, dated 9/4/09; re: We, publishing house De Bezige Bij/ Thomas Rap, based in Amsterdam, The Netherlands, are writing you in regards to the proposed settlement agreement; We raise concerns and objections to this settlement herein. Document ﬁled by Hans Nijenhuis. (mro) (Entered: 09/11/2009)

09/11/2009

584 LETTER addressed to Ofﬁce of the Clerk from Dr. Martin Wagner dated 9/3/09 re: I am legal counsel and head of the legal department of Mentor Verlag GmbH a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Martin Wagner.(mro) (Entered: 09/11/2009)

09/11/2009

585 LETTER addressed to Ofﬁce of the Clerk from Dr. Martin Wagner dated 9/3/09 re: I am legal counsel and head of the legal department of Axel Juncker Verlag GmbH, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join

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in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Martin Wagner.(mro) (Entered: 09/11/2009)
586 LETTER addressed to Ofﬁce of the Clerk from Dr. Martin Wagner dated 9/3/09 re: I am legal counsel and head of the legal department of Polyglott Verlag GmbH, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Martin Wagner.(mro) (Entered: 09/11/2009)
587 LETTER addressed to Ofﬁce of the Clerk from Tatjana Sepin dated 9/1/09 re: I am manager rights and permissions of S. Karger AG, a book publisher located in Basel, Switzerland; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Tatjana Sepin.(mro) (Entered: 09/11/2009)
588 LETTER addressed to Sir from Ulrike Jurgens dated 9/3/09 re: We are a German publishing house having its registered ofﬁce at Braunschweig Germany; As a so called rights holder under the settlement agreement we object. Document ﬁled by Ulrike Jurgens.(mro) (Entered: 09/11/2009)
589 LETTER addressed to Ofﬁce of the Clerk, from Eginhard Hohne dated 9/3/09 re: We are a Hungarian publishing house having its registered ofﬁce of Budapest, Hungary; As a so called rights holder under the settlement agreement we object. Document ﬁled by Eginhard Hohne.(mro) (Entered: 09/11/2009)
590 LETTER addressed to Ofﬁce of the Clerk dated 9/3/09 re: We are a Polish publishing house having its registered ofﬁce at Lodz, Poland. As a major publisher in the area of educational products we are distributing about 400 different educational books up to date for which we are holding the US copyright. As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. Document ﬁled by Eginhard Hohne.(mro) (Entered: 09/11/2009)
591 LETTER addressed to Sir, from Bernd Tofﬂinger dated 9/3/09 re: We are a German publishing house having its registered ofﬁce at Braunschweig, Germany. As a major publisher in the area of educational products we are distributing about 300 different educational books up to date for which we are holding the US copyright. As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. Document ﬁled by Bernd Tofﬂinger.(mro) (Entered: 09/11/2009)
592 LETTER addressed to Sir Michael McMahon dated 9/3/09 re: We, Sanoma Uitgevers BV, are writing in regards to the proposed settlement; We raise concerns and objections to this settlement herein. Document ﬁled by Henk Scheenstra.(mro) (Entered: 09/11/2009)
593 LETTER addressed to Ofﬁce of the Clerk from Antoine Gallimard dated 9/3/09 re: I am chairman and chief executive ofﬁcer of the Edition Gallimard, SA, a book publisher located in France; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and

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publishing associations. Document ﬁled by Antoine Gallimard.(mro) (Entered: 09/11/2009)
594 LETTER addressed to Ofﬁce of the Clerk from Claude Portmann dated 9/3/0* re: I am owner and manager of the C.F. Portmann Verlag and Edition Hu&Hott, a book published located in Erlenbach, Switzerland; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Claude Portmann. (mro) (Entered: 09/11/2009)
595 LETTER addressed to Ofﬁce of the Clerk from Michael Schweins dated 9/2/09 re: I am the president of the Ars Edition GmbH, a book publisher located in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Michael Schweins.(mro) (Entered: 09/11/2009)
596 LETTER addressed to Ofﬁce of the Clerk from Robert Dimbleby dated 9/3/09 re: I am the publishing manager of Hogrefe Publishing GmbH, a book publisher located in Gottingen, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Robert Dimbleby.(mro) (Entered: 09/11/2009)
597 LETTER addressed to Ofﬁce of the Clerk from Dr. Michael Vogtmeier dated 9/2/09 re: I am publishing director of the Hogrefe Berlag Gmbh & Co. KG, a book publisher located in Gottingen, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Michael Vogtmeier.(mro) (Entered: 09/11/2009)
598 LETTER addressed to Ofﬁce of the Clerk from Dr. Martin Wagner dated 9/3/09 re: I am legal counsel of Langescheidt ELT GmbH, a book publisher in Munich, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Martin Wagner.(mro) (Entered: 09/11/2009)
599 LETTER addressed to Ofﬁce of the Clerk from Klaas Jarchow dated 9/1/09 re: I am publisher of the Murman Verlag, a book publisher located in Hamburg, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Klaas Jarchow.(mro) (Entered: 09/11/2009)
600 LETTER addressed to Sir Michael McMahon from Mr. E.A. van Ingen dated 9/2/09 re: We, Publishing House Nelissen are writing to you in regards to the proposed settlement

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agreement; We would like to raise concerns and objections to this settlement listed herein. Document ﬁled by E.A. van Ingen.(mro) (Entered: 09/11/2009)
601 LETTER addressed to Whom it may concern from Stephen Cox dated 9/3/09 re: I would like to formally make an objection to the action to Google.com violating my book copyrights by way of creating a book database including my materials without my permission. Document ﬁled by Stephen Cox.(mro) (Entered: 09/11/2009)
602 LETTER addressed to Ofﬁce of the Clerk from Francis Esmenard dated 9/4/09 re: I am the CEO of Albin Michel Group, a book publisher located in France; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Francis Esmenard.(mro) (Entered: 09/11/2009)
603 NOTICE OF APPEARANCE by William Irwin Kohn on behalf of Canadian Standard Association (Kohn, William) (Entered: 09/11/2009)
604 LETTER addressed to Judge Denny Chin from Nathalie Jouven dated 9/3/09 re: I am a citizen of France and Chief Executive Ofﬁcer of Dunod Editeur SA; Dunod objects to the proposed settlement. Document ﬁled by Nathalie Jouven.(mro) (Entered: 09/11/2009)
605 LETTER addressed to Judge Denny Chin from Jennifer B. Coplan dated 9/8/09 re: Enclosed please ﬁnd a courtesy copy of the Amicus Curiar Brief of Sony Electronics. in support of proposed Google Book Search settlement, which was electronically ﬁled earlier today. (mro) (Entered: 09/11/2009)
606 LETTER addressed to Ofﬁce of the Clerk from Oskar Klan dated 9/3/09 re: I am editor in chief of the Schwaneberger Verlag GmbH, a book publisher in Unterschleibheim, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Oskar Klan.(mro) (Entered: 09/11/2009)
607 LETTER addressed to Ofﬁce of the Clerk from Axel Schonberger dated 9/2/09 re: I am the owner of the Axel Schonberger Verlag located in Frankfurt, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Axel Schonberger.(mro) (Entered: 09/11/2009)
608 LETTER addressed to Ofﬁce of the Clerk from Axel Schonberger dated 9/2/09 re: I am chief executive ofﬁcer of the Valentia GmbH located in Frankfurt, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Axel Schonberger.(mro) (Entered: 09/11/2009)
609 LETTER addressed to Ofﬁce of the Clerk from Ingwert Paulsen dated 9/2/09 re: I am the owner of the Hamburger Lesehefte Verlag, Inh located in Husum, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court

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with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Ingwert Paulsen.(mro) (Entered: 09/11/2009)

09/11/2009

610 LETTER addressed to Ofﬁce of the Clerk from Ingwert Paulsen dated 9/2/09 re: I am the owner of the Mattheisen Verlag Ingwert Paulsen, located in Husum, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Ingwert Paulsen.(mro) (Entered: 09/11/2009)

09/11/2009

611 LETTER addressed to Ofﬁce of the Clerk from Albrecht Koschutzke dated 9/3/09 re: I am the CEO of the Verlag J. H. W. Dietz Nachf GmbH, located in Bonn, Germany; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Albrecht Koschutzke.(mro) (Entered: 09/11/2009)

09/11/2009

612 LETTER addressed to Judge Denny Chin from Mr. Thijs VerLoren van Themaat dated 9/2/2009 re: We, Verloren Publisher from Hilversum, The Netherlands, are writing to you in regards to the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers. We would like to raise the following concerns and objections to this Settlement. (jmi) (Entered: 09/14/2009)

09/11/2009

613 LETTER addressed to Judge Denny Chin from Neckar-Verlag dated 9/3/2009 re: We are a German publishing house having its registered ofﬁce at Villingen-Schwenningen, Germany. As a major publisher in the area of educational and other products we are distributing about 300 different books (150 educational up-to-date for which we are holding the US copyright. As a so called rightsholder under the Settlement Agreement we object to the proposed settlement agreement between Google Inc., and the Authors Guild and the Association of American Publishers (the "Settlement Agreement"). (jmi) (Entered: 09/14/2009)

09/11/2009

614 LETTER addressed to Judge Denny Chin from Bardo Jensch dated 9/1/2009 re: My name is Mr. Bardo Jensch, and I am ofﬁcer with procuration of the Schwabenverlag Aktiengesellschaft, a book publisher located in Ostﬁldern (Germany). Schwabenverlag Aktiengesell chaft is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/14/2009)

09/11/2009

615 LETTER addressed to Ofﬁce of the Clerk from Liana Levi dated 9/3/09 re: I am the Manager and Editor in Chief of the Editions Liana Levi, a book publisher located in France. We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by the French Publishers Association (Syndicat National de L'Edition/SNE), for the reasons presented to this Court by this entity. (tro) (Entered: 09/14/2009)

09/11/2009

616 LETTER addressed to Judge Denny Chin from Hans A. Baensch dated 9/2/2009 re: My name is Han -Albrecht Baensch, and I am the owner and Manager of Mergus Verlag GmbH (publisher), Im Wiele 27, 49328 Melle, Germany. Mergus Verlag GmbH is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in

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books that are protected by U.S. Copyright laws. We wright to object to the Settlement Agreement. (jmi) (Entered: 09/14/2009)

09/11/2009

617 LETTER addressed to Judge Denny Chin from Vivian Vande Velde dated 9/1/2009 re: I am writing to express my displeasure with everything about the handling of the Google Settlement. (jmi) (Entered: 09/14/2009)

09/11/2009

618 LETTER addressed to Judge Denny Chin from Annette Sievers dated 9/2/2009 re: My name is Annette Sievers, and I am managing director of the pmv Peter Meyer Verlag, a book publisher located in Frankfurt am Main. pmv Peter Meyer Verlag is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the Settlement Agreement), because it own rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/14/2009)

09/11/2009

619 LETTER addressed to Judge Denny Chin from Norbert Froitzheim dated 9/2/2009 re: My name is Norbert Froitzheim and I am member of the executive board of the Deutscher Arzte-Verlag G3mbH, a book publisher located in Cologne, Germany. The Deutscher Arzte-Verlag GmbH is a member of the settlement class embraced by the propose settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. (jmi) (Entered: 09/14/2009)

09/11/2009

620 LETTER addressed to J. Michael McMahon from Andrzei Karpowicz dated 9/3/2009 re: Acting on behalf of the author, Mr Waldemar Lysiak I hereby inform you that my Client does not consent to have his books covered by the provisions of the settlement, regarding the Google Book Search software. This concerns in particular, but without limitations, the following titles published by various publishers in Poland and USA. (jmi) (Entered: 09/14/2009)

09/11/2009

621 LETTER addressed to J. Michael McMahon from Stephen Nachmanovitch dated 9/3/2009 re: Digitizing the contents of the great libraries of the world - for both the functions of backup and accessibility - is an exciting project. (jmi) (Entered: 09/14/2009)

09/11/2009

622 LETTER addressed to J. Michael McMahon from G. Emil Ward dated 9/4/2009 re: I am the copyrights holder for: Massachusetts Landlord-Tenant Practice: Law and Forms, formerly published by Lexis-Nexis. The copyright was assigned back to me by that publisher approximately six years ago which assignment I sent to the Copyrights Ofﬁce in recent months. (jmi) (Entered: 09/14/2009)

09/11/2009

623 LETTER addressed to J. Michael McMahon from Regina Harris Baiocchi dated 9/1/2009 re: This letter serves as my formal notiﬁcation to OPT OUT of the Google Book Settlement. My OPT out request. (jmi) (Entered: 09/14/2009)

09/11/2009

624 DECLARATION of Ministerialdirigent Dr. Johannes Christian Wichard. (jmi) (Entered: 09/14/2009)

09/11/2009 625 Objection of Alex M.G. Burton to Class Settlement. (jmi) (Entered: 09/14/2009)

09/11/2009

626 BRIEF AMICI CURIAE OF LYRASIS, INC., NYLINK AND BIBLIOGRAPHICAL CENTER FOR RESEARCH ROCKY MOUNTAIN, INC. IN SUPPORT OF MODIFICATION OF PROPOSED SETTLEMENT. (jmi) (Entered: 09/14/2009)

09/11/2009

627 Objection OF AMERICAN PSYCHOLOGICAL ASSOCIATION TO PROPOSED SETTLEMENT. (jmi) (Entered: 09/14/2009)

09/11/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 309 Order on Motion to Appear Pro Hac Vice, 311 Order on Motion to Appear Pro Hac Vice, 310 Order on

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09/11/2009

628 LETTER addressed to Ofﬁce of the Clerk from Georg Kessrer dated 9/2/2009 re:My name is Georg Kessler, and I am Managing Director/Publisher of the GRAFE UND UNZER Publishers, a book publisher located in Munich, Germany. GRAFE UND UNZER Publishers is a member of the settlement class embraced by the proposed settlement agreement that is before this Court in this action (the "Settlement Agreement"), because it owns rights in books that are protected by U.S. copyright law. We write to object to the Settlement Agreement. (jmi) (Entered: 09/14/2009)

09/11/2009

631 LETTER addressed to Ofﬁce of the Clerk from Kurt Stellfeld dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/14/2009)

09/11/2009

632 LETTER addressed to Ofﬁce of the Clerk from Stefan Ruhling dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/14/2009)

09/11/2009 633 Objection of Takashi Yamamoto. (jfe) (Entered: 09/14/2009)

09/11/2009

634 LETTER addressed to Ofﬁce of the Clerk from Gunter Berg dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

635 LETTER addressed to Ofﬁce of the Clerk from Dr. Christine Autenrieth dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

636 LETTER addressed to Ofﬁce of the Clerk from Ingwert Paulsen dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

637 LETTER addressed to Ofﬁce of the Clerk from Wilmar Diepgrond dated 9/2/2009 re: Counsel writes to object to the proposed Settlement Agreement. (jfe) (Entered: 09/14/2009)

09/11/2009

638 LETTER addressed to Ofﬁce of the Clerk from Jurgen Kleidt dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

639 LETTER addressed to Ofﬁce of the Clerk from Dr. Christine Autenrieth dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

640 LETTER addressed to Ofﬁce of the Clerk from Dieter Krause dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

641 LETTER addressed to Ofﬁce of the Clerk from Ingwert Paulsen dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

642 LETTER addressed to Ofﬁce of the Clerk from Dr. Katharina Eleonore Meyer dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

643 LETTER addressed to Ofﬁce of the Clerk from Oliver Waffender dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

644 OBJECTION AND NOTICE TO APPEAR ON BEHALF OF ABSENT CLASS MEMBER, DAVID MEININGER. (jfe) (Entered: 09/14/2009)

09/11/2009 645 NFS'S OBJECTION TO THE PROPOSED SETTLEMENT. (jfe) (Entered: 09/14/2009)

09/11/2009

646 LETTER addressed to Ofﬁce of the Clerk from Erna Paris re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

09/11/2009

647 DECLARATION OF LYNNE D. FINNEY, AUTHOR, COPYRIGHT OWNER, AND PUBLISHER, IN OPPOSITION TO SETTLEMENT AGREEMENT. (jfe) (Entered:

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648 LETTER addressed to Ofﬁce of the Clerk from Ralf Frenzel dated 9/1/2009 re: Counsel writes to object to the Settlement Agreement.. (jfe) (Entered: 09/14/2009)

649 LETTER addressed to Sir from Jean L. Cooper dated 9/2/09 re: I am a librarian and an author, and as I have standing as a member of the author class in the Google Book Settlement; I am opposed to the Settlement for the reasons stated herein. Document ﬁled by Jean L. Cooper.(mro) (Entered: 09/14/2009)

650 LETTER addressed to Michael McMahon from Jean L. Cooper dated 9/2/2009 re: Counsel writes to oppose the Settlement Agreement. (jfe) (Entered: 09/14/2009)

651 LETTER addressed to Ofﬁce of the Clerk from Kazufumi Watanabe dated 9/3/09 re: We strongly reject the action carried out by Google, as it infringes upon the publication and sale of books based upon contracts signed between the author (copyright holder) and the publishing company. Document ﬁled by Kazufumi Watanabe.(mro) (Entered: 09/14/2009)

652 LETTER addressed to Ofﬁce of the Clerk from Mitchell Allen dated 9/4/09 re: I am writing as president, publisher, and owner of Left Coast Press, Inc., a scholarly for proﬁt publishing house of humanities and social sciences based on the San Francisco Bay Aread, and on behalf of authors we publish; We wish to express our objections to the settlement before settlement administrator here and hope you reject the settlement terms. Document ﬁled by Mitchell Allen.(mro) (Entered: 09/14/2009)

653 LETTER addressed to Judge Denny Chin from Jesus Sanchez Garcia dated 9/3/09 re: For the reasons herein, Edelsa Grupo Didascalia respectfully requests that this Court reject the proposed settlement and/or decline to certify the class with regard to non-US rights holders. Document ﬁled by Jesus Sanchez Garcia.(mro) (Entered: 09/14/2009)

654 LETTER addressed to Sir from Dr. Comelia Heering dated 9/3/09 re: We are a German publishing house having its registered ofﬁce at Essen, Germany; As a so called rights holder under the settlement agreement we object. Document ﬁled by Comelia Heering. (mro) (Entered: 09/14/2009)

655 LETTER addressed to Sir from Dr. Comelia Heering dated 9/3/09 re: We are a German publishing house having its registered ofﬁce at Braunschweig, Germany; As a so called rights holder under the settlement agreement we object. Document ﬁled by Comelia Heering.(mro) (Entered: 09/14/2009)

656 LETTER addressed to Ofﬁce of the Clerk from Karin Schmidt-Friderichs dated 9/2/09 re: We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Karin Schmidt-Friderichs.(mro) (Entered: 09/14/2009)

658 LETTER addressed to Ofﬁce of the Clerk from Dr. Felix Breidenstein dated 9/1/09 re: I am the executive director of the German Bible Society; We write to object to the settlement agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicate ﬁlings. We therefore join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations. Document ﬁled by Felix Breidenstein.(mro) (Entered: 09/14/2009)

660 LETTER Brief from Mumia Abu-Tamal re: Objection to the pending settlement. Document ﬁled by Mumia Abu-Tamal.(mro) (Entered: 09/14/2009)

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661 LETTER addressed to Judge Denny Chin from Antonio dated 9/8/09 re: We would like to join in the objections against the settlement presented by the Associazione Italiana Editori. Document ﬁled by Federacion de Gremios de Editores de Espana.(mro) (Entered: 09/14/2009)

09/11/2009

662 LETTER addressed to Sir from Dr. Comelia Heering dated 9/3/09 re: As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. Document ﬁled by Comelia Heering.(mro) (Entered: 09/14/2009)

09/11/2009

663 LETTER addressed to Sir from Dr. Comelia Heering dated 9/3/09 re: As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. Document ﬁled by Comelia Heering.(mro) (Entered: 09/14/2009)

09/11/2009

664 LETTER addressed to Mr. McMahon from Robert K. Massie dated 9/8/09 re: I am sending you this copy of a letter I sent last week to the Google Book Search Committee Settlement Administration which has so far not permitted me to opt put of the settlement as I wish to do and as I ﬁrst told them in April. (mro) (Entered: 09/14/2009)

09/11/2009

665 LETTER addressed to Judge Denny Chin from Salley Shannon dated 9/4/09 re: Writes to object to the proposed settlement agreement. Document ﬁled by Salley Shannon. (mro) (Entered: 09/14/2009)

09/11/2009

666 LETTER addressed to Sir/Madam from Minoru Ito dated 9/3/09 re: We write to express our rejection to the settlement and request to opt out of the settlement. Document ﬁled by Minoru Ito.(mro) (Entered: 09/14/2009)

09/11/2009

667 LETTER addressed to Ofﬁce of the Clerk from Rose Teo dated 9/4/09 re: As a so called rights holder under the settlement agreement we object to the proposed settlement agreement. Document ﬁled by Rose Teo.(mro) (Entered: 09/14/2009)

09/11/2009

668 LETTER addressed to Sir Michael McMahon from Aime Van Hecke dated 9/2/09 re: We raise concerns and objections to this settlement listed herein. Document ﬁled by Aime Van Hecke.(mro) (Entered: 09/14/2009)

09/11/2009

669 LETTER addressed to Judge Denny Chin from Giles Sandeman-Allen dated 9/4/09 re: If the settlement is agreed in principle, I am writing to request for an amendment in the determination of "in print". Document ﬁled by Giles Sandeman-Allen.(mro) (Entered: 09/14/2009)

09/11/2009

670 LETTER addressed to Sir from Stephanie Golden dated 9/5/09 re: Im writing to object to the Google settlement in its correct form. Document ﬁled by Stephanie Golden.(mro) (Entered: 09/14/2009)

09/11/2009

671 LETTER addressed to Judge Denny Chin from Arnaud Nourry dated 9/3/09 re: For the reasons herein, Hachette UK respecfully requests that this Court reject the proposed settlement and/or decline to certify the class with regard to non-US rights holders. Document ﬁled by Arnaud Nourry.(mro) (Entered: 09/14/2009)

09/11/2009

672 LETTER addressed to Judge Denny Chin from Isabelle Magnac dated 9/3/09 re: For the reasons herein, Salvat respecfully requests that this Court reject the proposed settlement and/or decline to certify the class with regard to non-US rights holders. Document ﬁled by Isabelle Magnac.(mro) (Entered: 09/14/2009)

09/11/2009

673 LETTER addressed to Mr. McMahon from Barbara Helen Else re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

674 LETTER from Donica Bettanin re: It appears to us that there needs to be serious thought given to the administrative demands and possible problems of the settlement for rights holders outside the USA. (mro) (Entered: 09/14/2009)

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675 LETTER addressed to Mr. McMahon from Marie Langley dated 3/9/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

676 LETTER addressed to The Court from Jesse Rutherford dated 9/3/09 re: For the reasons herein, I respectfully request that this Court reject the proposed settlement and/or decline to certify the class with regard to non-US rights holders. Document ﬁled by Jesse Rutherford.(mro) (Entered: 09/14/2009)

09/11/2009

677 LETTER addressed to Ofﬁce of the Clerk from Marianne Rubelmann dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/14/2009)

09/11/2009

678 LETTER addressed to Clerk Michael McMahon from John Mouldin dated 8/31/09 re: If you respect the actions listed herein, you can take on my behalf: make sure my comments and objections are heard by Court. Document ﬁled by John Mouldin.(mro) (Entered: 09/14/2009)

09/11/2009

679 LETTER addressed to Mr. McMahon from Chris Else dated 9/3/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

680 LETTER addressed to Mr. McMahon from Jeanetter Wilson dated 9/3/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

681 LETTER addressed to Settlement Administrator dated 9/2/09 re: SATV is opting out of the settlement in Authors Guild, Inc. et al. Document ﬁled by Frank P. Scibilia.(mro) (Entered: 09/14/2009)

09/11/2009

682 LETTER addressed to Judge Denny Chin from Olswang LLP dated 9/8/2009 re: Counsel respectfully request the Court's permission to ﬁle this letter as an amicus curiae brief to address certain concerns of UK authors who have not opted-out of the proposed settlement agreement in this proceeding. (jfe) (Entered: 09/14/2009)

09/11/2009

683 LETTER addressed to Judge Denny Chin from Alain Kouck dated 9/2/09 re: We would like to raise objections to the settlement agreement listed herein. Document ﬁled by Alain Kouck.(mro) (Entered: 09/14/2009)

09/11/2009

684 LETTER addressed to Mr. McMahon from Kim Griggs dated 9/4/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

685 LETTER addressed to Judge Denny Chin from Holly K. Towle dated 8/31/2009 re: Counsel writes to object to the Google Book Settlement.(jfe) (Entered: 09/14/2009)

09/11/2009

686 LETTER addressed to Ofﬁce of the Clerk from Dirk Sieben dated 9/2/09 re: We write to object to the proposed settlement agreement. Document ﬁled by Dirk Sieben.(mro) (Entered: 09/14/2009)

09/11/2009

687 LETTER addressed to Judge Denny Chin from Olivier Nora dated 9/3/2009 re: Counsel writes to object to the Proposed Settlement Agreement. (jfe) (Entered: 09/14/2009)

09/11/2009

688 LETTER addressed to Ofﬁce of the Clerk from Klaus Humann dated 9/2/09 re: We write to object to the settlement agreement. Document ﬁled by Klaus Humann.(mro) (Entered: 09/14/2009)

09/11/2009

689 AFFIRMATION OF SERVICE of Mika Hasegawa re: 464 Objection (non-motion). (jfe) (Entered: 09/14/2009)

09/11/2009

690 LETTER addressed to Ofﬁce of the Clerk from Professor Barbara Scheuch-Voetterle dated 9/2/09 re: We write to object to the settlement agreement. Document ﬁled by

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691 AFFIRMATION OF SERVICE of Junji Suzuki re: 467 Objection (non-motion), Objection (non-motion). (jfe) (Entered: 09/14/2009)

09/11/2009

692 LETTER addressed to Ofﬁce of the Clerk from Dr. h.c. Karl-Peter Winters dated 9/1/09 re: We write to object to the settlement agreement. Document ﬁled by h.c. Karl-Peter Winters.(mro) (Entered: 09/14/2009)

09/11/2009

693 LETTER addressed to Ofﬁce of the Clerk from Brigitte Balke-Schmidt dated 9/2/2009 re: Counsel writes to object to the Settlement Agreement. (jfe) (Entered: 09/14/2009)

09/11/2009

694 LETTER addressed to Mr. McMahon from Vibeke Viteri-Loohuis dated 9/2/09 re: We hope that the court will seriously consider the objections and remarks made herein. Document ﬁled by Vibeke Viteri-Loohuis.(mro) (Entered: 09/14/2009)

09/11/2009

695 LETTER addressed to Ofﬁce of the Clerk from Brigitte Balke-Schmidt dated 9/2/2009 re: Counsel writes to object to the Google Book Settlement.. (jfe) (Entered: 09/14/2009)

09/11/2009

696 LETTER addressed to Ofﬁce of the Clerk from Lothar Schirmer dated 9/2/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

697 LETTER addressed to Judge Denny Chin from Jesus Sanchez Garcia dated 9/3/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/11/2009

698 LETTER addressed to Mr. McMahon from Tony Simpson dated 9/2/2009 re: Counsel writes to object to the proposed settlement as a class member. (jfe) (Entered: 09/14/2009)

09/14/2009 629 DECLARATION of Nicolas Georges. (jfe) (Entered: 09/14/2009)

09/14/2009

630 LETTER addressed to Ofﬁce of the Clerk from Manfred Finkeldey dated 9/3/2009 re: We are German publishing house and write to object the proposed Settlement Agreement between Google Inc., and the Authors Guild and the Association of American Publishers for the reasons set forth within. (jfe) (Entered: 09/14/2009)

09/14/2009

657 MOTION for Kristin H. Neuman to Withdraw as Attorney Motion For Leave To Withdraw Appearance On Behalf Of The Canadian Standards Association. Document ﬁled by Canadian Standards Association.(Neuman, Kristin) (Entered: 09/14/2009)

09/14/2009

659 AFFIDAVIT of Kristin H. Neuman in Support re: 657 MOTION for Kristin H. Neuman to Withdraw as Attorney Motion For Leave To Withdraw Appearance On Behalf Of The Canadian Standards Association.. Document ﬁled by Canadian Standards Association. (Neuman, Kristin) (Entered: 09/14/2009)

09/14/2009

699 CERTIFICATE OF SERVICE of Motion For Leave To Withdraw Appearance served on Cindy A. Cohn, Hadley Perkins Roeltgen, J. Kate Reznick (See attatched certiﬁcate) on 9/14/09. Service was made by Mail. Document ﬁled by Canadian Standards Association. (Neuman, Kristin) (Entered: 09/14/2009)

09/15/2009

701 LETTER addressed to Ofﬁce of the Clerk from Dr. Moritz Hagenmuller dated 9/1/09 re: Moritz Hagenmuller, Managing Director of the Books on Demand GmbH, join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations that includes the Borsenverein des Deutschen Buchhandels and others, for the reasons presented to this Court by those individuals and entities. Document ﬁled by Moritz Hagenmuller.(tro) (Entered: 09/15/2009)

09/15/2009 702 LETTER addressed to Ofﬁce of the Clerk from Tobias Koerner dated 9/4/09 re: Tobias

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Koerner, join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations that includes as further set forth in this letter. Document ﬁled by Tobias Koerner.(tro) (Entered: 09/15/2009)
703 LETTER addressed to J. Michael McMahon from Sander van Vlerken dated 8/28/09 re: Publishing House De Geus, write to you in regards to the proposed Settlement Agreement between Google, Inc. and the Authors Guild and the Association of American Publishers. We would like to raise the concerns and objections listed herein to the Settlement. Document ﬁled by Publishing House De Geus.(tro) (Entered: 09/15/2009)
704 LETTER addressed to Ofﬁce of the Clerk from Eva Swartz dated 9/2/09 re: Eva Swartz, CEO of Natur & Kultur join in the objections that have been presented to this Court by Scott Gant and the group of foreign publishers and publishing associations as further set forth in this letter. Document ﬁled by Eva Swartz.(tro) (Entered: 09/15/2009)
705 STATEMENT OF OBJECTIONS TO PROPOSED SETTLEMENT dated 9/8/09. Document ﬁled by Elizabeth Greenberg. (tro) (Entered: 09/15/2009)
706 STATEMENT OF OBJECTIONS TO THE PROPOSED SETTLEMENT dated 9/7/09. Document ﬁled by Rebecca C. Jones. (tro) (Entered: 09/15/2009)
707 LETTER addressed to Ofﬁce of the Clerk from Andrea Warren dated 9/7/09 re: Andrea Warren writes to object the settlement. Document ﬁled by Andrea Warren.(tro) (Entered: 09/15/2009)
708 OBJECTION TO CLASS-ACTION SETTLEMENT AND NOTICE OF INTENT TO APPEAR OF THE UNDERSIGNED STATES REPRESENTED BY THEIR RESPECTIVE ATTORNEYS GENERAL ON BEHALF OF THEMSELVES AND REGISTERED CHARITIES WITHIN THEIR POLITICAL BOUNDARIES. Document ﬁled by The State of Missouri. (tro) (Entered: 09/15/2009)
709 OBJECTION OF PROQUEST LLC TO PROPOSED SETTLEMENT. Document ﬁled by Proquest, LLC. (tro) (Entered: 09/15/2009)
710 OBJECTIONS OF WASHINGTON LEGAL FOUNDATION TO PROPOSED SETTLEMENT AND TO CERTIFICATION OF THE PROPOSED SETTLEMENT CLASS AND SUBCLASSES. Document ﬁled by The Washington Legal Foundation. (tro) (Entered: 09/15/2009)
711 NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING and STATEMENT OF OBJECTIONS TO PROPOSED SETTLEMENT. Document ﬁled by Sarah E. Cazoneri. (tro) (Entered: 09/15/2009)
712 STATEMENT OF OBJECTIONS TO PROPOSED SETTLEMENT. Document ﬁled by Dale Henderson. (tro) (Entered: 09/15/2009)
713 STATEMENT OF OBJECTIONS TO PROPOSED SETTLEMENT. Document ﬁled by Matthew B. Cazoneri. (tro) (Entered: 09/15/2009)
714 LETTER addressed to Judge Denny Chin from Donna J. Wood dated 9/11/09 re: Objections to the Proposed Settlement Agreement. Document ﬁled by Donna J. Wood. (tro) (Entered: 09/15/2009)
715 OBJECTION OF FREE SOFTWARE FOUNDATION, INC. AND KARL FOGEL TO PROPOSED SETTLEMENT. Document ﬁled by Karl Fogel, Free Software Foundation, Inc. (tro) (Entered: 09/15/2009)
717 MOTION for Edward F. Siegel to Appear Pro Hac Vice. Document ﬁled Charles D.

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Weller. (mro) (Entered: 09/16/2009)

09/15/2009

718 MOTION for Lee L. Kaplan to Appear Pro Hac Vice.Document ﬁled by Questia Media, Inc.(mro) (Entered: 09/16/2009)

09/15/2009

719 MOTION for Charles D. Ossola, Elaine Metlin and Victor S. Perlman to Appear Pro Hac Vice. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs. (mro) Modiﬁed on 9/17/2009 (mro). (Entered: 09/16/2009)

09/16/2009

716 ORDER: September 8, 2009 was the deadline by which objections and amicus curiae briefs were to be ﬁled with the Court. In light of the volume of submissions, and the apparent public interest in the case, the following procedures shall govern the fairness hearing: By 10/2/09 the parties shall respond in writing to the ﬁlings in this case. The fairness hearing shall proceed as scheduled on 10/7/09 at 10:00 a.m. Any person who wishes to speak at the fairness hearing must submit a request to speak by sending an email to googlebookcase@nysd.uscourts.gov by 5:00 p.m. EDT on 9/21/09. The parties shall post a copy of this order on the settlement website forthwith. Details regarding courtroom seating, press access, and an overﬂow room will be provided in a later order. (Signed by Judge Denny Chin on 9/16/09) (tro) (Entered: 09/16/2009)

09/17/2009

CASHIERS OFFICE REMARK on 700 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/08/2009, Receipt Number 699182. (jd) (Entered: 09/17/2009)

09/17/2009

CASHIERS OFFICE REMARK on 304 Motion to Appear Pro Hac Vice, in the amount of $25.00, paid on 09/08/2009, Receipt Number 699159. (jd) (Entered: 09/17/2009)

09/18/2009

720 NOTICE of Statement of Interest. Document ﬁled by United States of America. (Clopper, John) (Entered: 09/18/2009)

09/21/2009

721 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION: ORDER granting 719 Motion for Charles D. Ossola and Victor S. Perlman to Appear Pro Hac Vice for The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs. (Signed by Judge Denny Chin on 9/19/09) (db) (Entered: 09/21/2009)

09/21/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 721 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (db) (Entered: 09/21/2009)

09/21/2009

722 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION: ORDER granting 718 Motion for Lee L. Kaplan to Appear Pro Hac Vice for Questia Media, Inc. (Signed by Judge Denny Chin on 9/19/09) (db) (Entered: 09/21/2009)

09/21/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 722 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (db) (Entered: 09/21/2009)

09/21/2009

723 ORDER ADMITTING EDWARD F. SIEGEL PRO HAC VICE: ORDER granting 717 Motion for Edward F. Siegel to Appear Pro Hac Vice for Charles D. Weller. (Signed by Judge Denny Chin on 9/19/09) (db) (Entered: 09/21/2009)

09/21/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 723 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (db) (Entered: 09/21/2009)

09/21/2009 724 MEMORANDUM ENDORSEMENT re: MOTION FOR LEAVE TO WITHDRAW

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09/22/2009
09/22/2009
09/22/2009 09/22/2009 09/23/2009
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APPEARANCE ON BEHALF OF THE CANADIAN STANDARDS ASSOCIATION. ORDER granting 657 Motion to Withdraw Attorney. Attorney Kristin Hackett Neuman terminated. ENDORSEMENT: Approved. SO ORDERED. (Signed by Judge Denny Chin on 9/19/09) (db) (Entered: 09/21/2009)
725 LETTER addressed to Mr. McMahon from The Berne Convention for the Protection of Literary and Artistic Works dated 9/3/09 re: Objection to the Proposed Settlement. (db) (Entered: 09/21/2009)
726 LETTER addressed to Mr. McMahon from Ann Mitcalfe dated 9/3/09 re: Objection to the Proposed Settlement. (db) (Entered: 09/21/2009)
727 LETTER addressed to Google Settlement from Dolores Karl dated 9/1/09 re: To opt out of the Google-Authors Guild Settlement. (db) (Entered: 09/21/2009)
730 MOTION for Robert J. LaRocca to Appear Pro Hac Vice. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman.(mro) (Entered: 09/22/2009)
734 ORDER, that Gary Leland Reback, Esq. be admitted to the Bar of this Court pro hac vice as counsel for Amicus Curiae Open Book Alliance, upon payment of the applicable fee to the Clerk of Court. (Signed by Judge Denny Chin on 9/19/09) (pl) Modiﬁed on 9/24/2009 (pl). (Entered: 09/24/2009)
728 MOTION for Hearing / Notice of Unopposed Motion of the Author Sub-Class and the Publisher Sub-Class to Adjourn October 7, 2009 Final Fairness Hearing and Schedule Status Conference. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc..(Keller, Bruce) (Entered: 09/22/2009)
729 MEMORANDUM OF LAW in Support re: 728 MOTION for Hearing / Notice of Unopposed Motion of the Author Sub-Class and the Publisher Sub-Class to Adjourn October 7, 2009 Final Fairness Hearing and Schedule Status Conference.. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 09/22/2009)
731 MOTION for Charles B. Casper to Appear Pro Hac Vice. Document ﬁled by Microsoft Corporation.(mro) (Entered: 09/22/2009)
732 MOTION for Richard Montgomery Donaldson to Appear Pro Hac Vice. Document ﬁled by Microsoft Corporation.(mro) (Entered: 09/22/2009)
CASHIERS OFFICE REMARK on 717 Motion to Appear Pro Hac Vice, 718 Motion to Appear Pro Hac Vice, 719 Motion to Appear Pro Hac Vice, in the amount of $125.00, paid on 09/15/2009, Receipt Number 700022, 700067 & 700099. (jd) (Entered: 09/23/2009)
733 BRIEF OF AMICUS CURIAE. Document ﬁled by Public Knowledge.(ad) (Entered: 09/24/2009)
***Attorney Sherman Siy for Public Knowledge, Jef Pearlman for Public Knowledge added. (ad) (Entered: 09/25/2009)
CASHIERS OFFICE REMARK on 730 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/21/2009, Receipt Number 700386. (jd) (Entered: 09/24/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 734 Order on Motion to Appear Pro Hac Vice,, to the Attorney Admissions Clerk for updating of Attorney

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09/24/2009 09/24/2009 09/24/2009 09/24/2009 09/24/2009 09/25/2009 09/25/2009
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Information. (pl) (Entered: 09/24/2009)
735 ORDER, that on September 22, 2009, plaintiffs moved for an adjournment of the fairness hearing currently scheduled for October 7, 2009. Defendant Google, Inc. does not oppose the motion. Under all the circumstances, it makes no sense to conduct a hearing on the fairness and reasonableness of the current settlement agreement, as it does not appear that the currentsettlement will be the operative one. Accordingly, the Court will not proceed with the fairness hearing on October 7, 2009. The Court will, however, conduct a status conference on October 7 at 10 00 a.m. to determine how to proceed with the case as expeditiously as possible, as this case has now been pending for over four years The parties shall attend. Additional relief as set forth in this Order. (Signed by Judge Denny Chin on 9/24/09) (pl) (Entered: 09/24/2009)
736 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Reconsideration. Document ﬁled by The American Society of Media Photographers, Inc.. (Attachments: # 1 Exhibit Motion to Intervene, # 2 Exhibit Letter to Chambers, # 3 Text of Proposed Order Proposed Order)(Saed, Shirley) Modiﬁed on 9/25/2009 (jar). (Entered: 09/24/2009)
737 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU (Certiﬁcate of Service) - MOTION for Reconsideration certiﬁcate of service. Document ﬁled by The American Society of Media Photographers, Inc..(Saed, Shirley) Modiﬁed on 9/25/2009 (jar). (Entered: 09/24/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Shirley Saed to RE-FILE Document 736 MOTION for Reconsideration.. ERROR(S): Supporting Documents must be ﬁled individually. Use the event type Memorandum of Law found under event list Replies, Opposition, Supporting Documents. NOTE: The Motion must be correctly re-ﬁled. (jar) (Entered: 09/25/2009)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Shirley Saed to RE-FILE Document 737 MOTION for Reconsideration certiﬁcate of service. The Certiﬁcate of Service may be include with the Motion for Reconsideration. However, you may use the event type Certiﬁcate of Service Other found under the event list Service of Process (case name and case number must be include with Certiﬁcate before re-ﬁling). (jar) (Entered: 09/25/2009)
743 MOTION for Marc Rotenberg to Appear Pro Hac Vice. Document ﬁled by Electronic Privacy Information Center.(mro) (Entered: 09/28/2009)
738 MOTION for Reconsideration of Denial of Motion to Intervene for the Limited Purposes of Objecting to the Proposed Class Action Settlement Agreement and Preserving Right to Appeal. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. (Saed, Shirley) (Entered: 09/25/2009)
739 MEMORANDUM OF LAW in Support re: 738 MOTION for Reconsideration of Denial of Motion to Intervene for the Limited Purposes of Objecting to the Proposed Class Action Settlement Agreement and Preserving Right to Appeal.. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. (Saed, Shirley) (Entered: 09/25/2009)
740 ORDER granting 731 Motion for Charles B. Casper to Appear Pro Hac Vice. (Signed by

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Judge Denny Chin on 9/25/09) (js) (Entered: 09/25/2009)

09/25/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 740 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (js) (Entered: 09/25/2009)

09/25/2009

741 ORDER granting 732 Motion for Richard Montgomery Donaldson to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 9/25/09) (js) (Entered: 09/25/2009)

09/25/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 741 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (js) (Entered: 09/25/2009)

09/25/2009

742 ORDER granting 730 Motion for Robert J. LaRocca to Appear Pro Hac Vice. (Signed by Judge Denny Chin on 9/25/09) (js) (Entered: 09/25/2009)

09/25/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 742 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (js) (Entered: 09/25/2009)

09/25/2009

744 MOTION for Mark Edward Avsec to Appear Pro Hac Vice. Document ﬁled by Canadian Standard Association.(mro) (Entered: 09/28/2009)

09/28/2009

CASHIERS OFFICE REMARK on 732 Motion to Appear Pro Hac Vice, 731 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 09/22/2009, Receipt Number 700437. (jd) (Entered: 09/28/2009)

09/28/2009

745 MOTION for Norman W. Marden to Appear Pro Hac Vice. Document ﬁled by Commonwealth of Pennsylvania.(mro) (Entered: 10/01/2009)

09/29/2009

CASHIERS OFFICE REMARK on 743 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/24/2009, Receipt Number 700552. (jd) (Entered: 09/29/2009)

09/29/2009

CASHIERS OFFICE REMARK on 744 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/25/2009, Receipt Number 701530. (jd) (Entered: 09/29/2009)

10/01/2009

CASHIERS OFFICE REMARK on 745 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 09/28/2009, Receipt Number 701643. (jd) (Entered: 10/01/2009)

10/01/2009

746 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION, that Marc Rotenberg is admitted to practice pro hac vice as counsel for EPIC. (Signed by Judge Denny Chin on 10/1/09) (pl) (Entered: 10/01/2009)

10/01/2009

747 ORDER, granting 744 Motion for Mark E. Avsec, Esq. to Appear Pro Hac Vice be admitted to the Bar of this court pro hac vice as counsel for Canadian Standards Association, upon payment of the pro hac vice fee to the Clerk of the Court. (Signed by Judge Denny Chin on 10/1/09) (pl) (Entered: 10/01/2009)

10/02/2009

748 NOTICE of of Objection. Document ﬁled by Electronic Privacy Information Center. (Rotenberg, Marc) (Entered: 10/02/2009)

10/06/2009

749 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT (LETTER) TRANSCRIPT REQUEST Court Reporter Request for proceedings held on Oct. 7, 2009 before Judge Denny Chin. Document ﬁled by Darlene Marshall.(Weiss, Matthew) Modiﬁed on 10/8/2009 (jar). (Entered: 10/06/2009)

10/06/2009

750 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Writ of Mandamus as to Judge Denny Chin. Document ﬁled by Darlene Marshall.(Weiss, Matthew) Modiﬁed on 10/8/2009 (jar). (Entered: 10/06/2009)

10/06/2009 751 ORDER: The Court has received the following requests regarding the status conference

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scheduled for October 7, 2009, at 10 a.m. in this case: 1. To have a court reporter present at the status conference; and 2. To audio or video record the status conference. The ﬁrst request is granted; it was always the Court's intention to have a court reporter present to transcribe the conference. The second request is denied; the Court will not permit audio or video recording of the proceeding. (Signed by Judge Denny Chin on 10/6/2009) (rw) (Entered: 10/06/2009)

10/06/2009

***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 749 HAS BEEN REJECTED. Note to Attorney Matthew Weiss : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (jar) (Entered: 10/08/2009)

10/06/2009

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Matthew Weiss to RE-FILE Document 750 MOTION for Writ of Mandamus as to Judge Denny Chin. ERROR(S): Case number missing from document. (jar) (Entered: 10/08/2009)

10/07/2009

752 NOTICE OF APPEAL from 428 Order,,. Document ﬁled by The American Society of Media Photographers, Inc., Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. Filing fee $ 455.00, receipt number E 702434. (nd) (Entered: 10/07/2009)

10/07/2009

Transmission of Notice of Appeal to the District Judge re: 752 Notice of Appeal,. (nd) (Entered: 10/07/2009)

10/07/2009

Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 752 Notice of Appeal,. (nd) (Entered: 10/07/2009)

10/08/2009

753 MANDATE of USCA (Certiﬁed Copy) USCA Case Number 09-41420-op. IT IS HEREBY ORDERED that the Petitioner's Emergency Petition for Writ of Mandamus is DENIED. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 10/6/2009. (nd) (Entered: 10/08/2009)

10/08/2009

754 ENDORSED LETTER addressed to Judge Denny Chin from Michael J. Boni dated 10/5/09 re: Plaintiffs request that the Court deny the ASMP movants' motion for reconsideration. ENDORSEMENT: The Clerk of the Court shall accept this letter for ﬁling, and the ASMP movants shall respond by 10/14/09. (Signed by Judge Denny Chin on 10/7/09) (tro) (Entered: 10/08/2009)

10/09/2009

755 ORDER granting 745 Motion for Norman W. Marden to Appear Pro Hac Vice for Commonwealth of Pennsylvania. (Signed by Judge Denny Chin on 10/8/2009) (jmi) (Entered: 10/09/2009)

10/09/2009

Transmission to Attorney Admissions Clerk. Transmitted re: 755 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jmi) (Entered: 10/09/2009)

10/09/2009

756 NOTICE OF APPEAL from 308 Order on Motion to Intervene. Document ﬁled by Lewis Hyde, Harry Lewis, Nicholas Negroponte, Charles Nesson. Filing fee $ 455.00, receipt number E 702610. (nd) (Entered: 10/09/2009)

10/09/2009

Transmission of Notice of Appeal to the District Judge re: 756 Notice of Appeal. (nd) (Entered: 10/09/2009)

10/09/2009

Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 756 Notice of Appeal. (nd) (Entered: 10/09/2009)

10/14/2009 757 REPLY MEMORANDUM OF LAW in Support re: 738 MOTION for Reconsideration

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of Denial of Motion to Intervene for the Limited Purposes of Objecting to the Proposed Class Action Settlement Agreement and Preserving Right to Appeal.. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(DeVries, Christina) (Entered: 10/14/2009)

10/14/2009

758 CERTIFICATE OF SERVICE of Reply in Support of Motion for Reconsideration served on The Authors Guild on October 14, 2009. Service was made by Mail. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. (DeVries, Christina) (Entered: 10/14/2009)

10/16/2009

759 NOTICE OF APPEARANCE by Christina Jacqueline DeVries on behalf of The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Lou Jacobs, Jr (DeVries, Christina) (Entered: 10/16/2009)

10/16/2009

766 TRANSCRIPT of proceedings held on 10/7/09 before Judge Denny Chin. (tro) (Entered: 11/05/2009)

10/22/2009

760 NOTICE of Amended Settlement Issues. Document ﬁled by Electronic Frontier Foundation et al.. (Rudman, Samuel) (Entered: 10/22/2009)

10/28/2009

761 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to Withdraw. Document ﬁled by Eric Jager, Harold Bloom, Elliot Abrams, Charlotte Allen, Phyllis Ammons, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Wendy Shalit, American Society of Journalists and Authors. (Attachments: # 1 Afﬁdavit In Support of Withdrawal)(Hall, Joseph) Modiﬁed on 10/29/2009 (jar). (Entered: 10/28/2009)

10/28/2009

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Joseph Hall to RE-FILE Document 761 MOTION to Withdraw. ERROR(S): Supporting Document must be ﬁled individually. Use the event type Afﬁdavit in Support found under event list Replies, Oppositions, Supporting Documents. NOTE: The Motion must be correctly re-ﬁled. (jar) (Entered: 10/29/2009)

10/29/2009

762 MOTION to Withdraw. Document ﬁled by Eric Jager, Harold Bloom, Elliot Abrams, Charlotte Allen, Phyllis Ammons, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David D. Friedman, Gabrielle Glaser, Mary Ann Glendon, Victor Davis Hanson, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Ishmael Jones, Donald Kagan, David Kuo, Michael Ledeen, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Harriet Rubin, Sarah Ruden, Roy Spencer, Geoffrey R. Stone, Charles

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Sykes, Terry Teachout, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Wendy Shalit.(Hall, Joseph) (Entered: 10/29/2009)
763 AFFIDAVIT of Joseph S. Hall in Support re: 762 MOTION to Withdraw.. Document ﬁled by Eric Jager, Harold Bloom, Elliot Abrams, Charlotte Allen, Phyllis Ammons, Richard Armey, Jacques Barzun, Nicholas Basbanes, Stephen Bates, Shawn J. Bayern, Jack Beerman, Michael Behe, Michael Cox, Douglas Crase, Frank Gonzalez-Crussi, Midge Decter, John Derbyshire, Thomas M. Disch, Gerald Early, Mel Eisenberg, Richard A. Epstein, Henry Fetter, David Gelernter, Gabrielle Glaser, Mary Ann Glendon, Robert Herbold, Arthur Herman, Charles Hill, Manuela Hoelterhoff, Richard Howard, Ishmael Jones, David Kuo, Michael Ledeen, Susan Lee, Mary Lefkowitz, David Lehman, John Lehman, Howard Markel, Sherwin B. Nuland, Steven Ozment, Michael Perry, Norman Podhoretz, Diane Ravitch, Ralph Reed, Sarah Ruden, Peter Schweizer, Roy Spencer, Geoffrey R. Stone, Charles Sykes, Terry Teachout, Paco Underhill, Ruth Wisse, Elizabeth Wurtzel, John Yoo, Wendy Shalit, American Society of Journalists and Authors. (Hall, Joseph) (Entered: 10/29/2009)
764 MEMO ENDORSED ON MOTION FOR LEAVE TO WITHDRAW APPEARANCE. ENDORSEMENT: Approved. So Ordered. (Signed by Judge Denny Chin on 10/30/09) (dle) (Entered: 11/02/2009)
765 MEMORANDUM DECISION for the reasons set forth above, denying 738 Motion for Reconsideration. (Signed by Judge Denny Chin on 11/4/09) (cd) (Entered: 11/04/2009)
767 ENDORSED LETTER addressed to Judge Denny Chin from Michael J. Boni dated 11/9/09 re: counsel for plaintiff writes on behalf of the parties, I write to advise the Court that plaintiffs expect to ﬁle their motion seeking preliminary approval of the Amended Settlement Agreement by no later than this Friday, November 13, 2009. ENDORSEMENT: Approved. So Ordered. (Signed by Judge Denny Chin on 11/9/09) (pl) (Entered: 11/09/2009)
768 MOTION to Approve / Notice of Motion for Preliminary Approval of Amended Settlement Agreement. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc..(Keller, Bruce) (Entered: 11/13/2009)
769 MEMORANDUM OF LAW in Support re: 768 MOTION to Approve / Notice of Motion for Preliminary Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 11/13/2009)
770 DECLARATION of Michael J. Boni in Support re: 768 MOTION to Approve / Notice of Motion for Preliminary Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 Exhibit 1 - Amended Settlement Agreement, # 2 Exhibit 2 - Changes made to Amended Settlement Agreement)(Keller, Bruce) (Entered: 11/13/2009)
782 THIRD AMENDED COMPLAINT amending 1 Complaint, 36 Amended Complaint, 59 Second Amended Complaint, against Google Inc.Document ﬁled by Canadian Standard Association, Association of American Publishers, Inc., Associational Plaintiffs, The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc., The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. Related document: 1 Complaint ﬁled by The Author's Guild, Betty Miles, Herbert Mitgang, Daniel Hoffman, 36 Amended Complaint, ﬁled by The Author's Guild, Betty Miles, Joseph Goulden, Paul Dickson, Herbert Mitgang, Daniel Hoffman, 59 Second

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Amended Complaint,, ﬁled by The Author's Guild, Joseph Goulden, Simon & Schuster, Inc., Herbert Mitgang, Associational Plaintiffs, John Wiley & Sons, Inc., Betty Miles, Paul Dickson, Association of American Publishers, Inc., Daniel Hoffman, The McGrawHill Companies, Inc., Pearson Education, Inc. (ae) (Entered: 12/04/2009)
771 NOTICE of Withdrawal of Objection re: 297 Afﬁrmation in Opposition to Motion,. Document ﬁled by Songwriters Guild of America. (Fedele, John) (Entered: 11/19/2009)
772 ORDER GRANTING PRELIMINARY APPROVAL OF AMENDED SETTLEMENT AGREEMENT: granting 768 Motion to Approve preliminary approval of an Amended Settlement Agreement among plaintiffs and defendant. All other provisions as set forth in this order. A ﬁnal settlement/fairness hearing shall be held on February 18, 2010 at 10:00 a.m. So Ordered. (Signed by Judge Denny Chin on 11/19/09) (js) (Entered: 11/19/2009)
773 STIPULATION AND ORDER FOR AMENDMENT: The Clerk of the Court is directed to docket the Third Amended Complaint as ﬁled on the date this stipulation and order are entered on the docket, and plaintiffs shall follow up with submission of an electronic version of the amended complaint in accordance with the Court's ECF Rules and Instructions. So Ordered (Signed by Judge Denny Chin on 11/19/09) (js) (Entered: 11/19/2009)
Set Deadlines/Hearings: Settlement Conference set for 2/18/2009 at 10:00 AM before Judge Denny Chin. (js) (Entered: 11/20/2009)
777 MOTION for Jonathan Band to Appear Pro Hac Vice. Document ﬁled by America Library Association, Association of College and Research Libraries and Assocation of Research Libraries.(mro) (Entered: 11/24/2009)
774 MOTION for Reconsideration of Order Granting Preliminary Approval of Amended Settlement Agreement. Document ﬁled by Amazon.com, Inc..(Wiles, Alexander) (Entered: 11/20/2009)
775 MEMORANDUM OF LAW in Support re: 774 MOTION for Reconsideration of Order Granting Preliminary Approval of Amended Settlement Agreement.. Document ﬁled by Amazon.com, Inc.. (Wiles, Alexander) (Entered: 11/20/2009)
776 ORDER granting 266 Motion for John B. Morris, Jr. to Appear Pro Hac Vice for Amicus Curaie. (Signed by Judge Denny Chin on 11/23/2009) (jmi) (Entered: 11/24/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 776 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jmi) (Entered: 11/24/2009)
778 ENDORSED LETTER addressed to Judge Denny Chin from John D. Clopper dated 11/24/09 re: Counsel requests that the Court clarify the Government's deadline for submitting a statement regarding the amended settlement agreement in this action as 2/4/2010. ENDORSEMENT: SO ORDERED. (Signed by Judge Denny Chin on 11/25/09) (tro) (Entered: 11/30/2009)
779 MEMORANDUM DECISION denying 774 Motion for Reconsideration. Amazon's motion for reconsideration is denied. Amazon may set forth its arguments in its objections to the proposed settlement in conjunction with the ﬁnal settlement approval process. Amazon also requests that the Court amend its preliminary approval order with regard to the mechanism by which objectors may submit objections to the proposed settlement. The order provides that objectors may now object only to amended terms of the settlement agreement, and that the time for objecting to the original settlement terms has passed. The Court will consider objections to the amended settlement in conjunction

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with previously-submitted objections to the original settlement. Amazon asks that, instead, objectors be permitted to withdraw their previous objections and to submit superseding objections that relate to both the original and the amended settlement terms. This request is denied, but to the extent that objectors ﬁnd it necessary to refer to their prior objections now to present "cohesive and accurate ﬁlings," they may do so. (Signed by Judge Denny Chin on 12/1/09) (tro) (Entered: 12/02/2009)
780 AMENDED NOTICE OF APPEAL re: 752 Notice of Appeal, 765 Order on Motion for Reconsideration, 428 Order. Document ﬁled by The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Joel Meyerowitz, Dan Budnick, Peter Turner, Lou Jacobs, Jr. (nd) (Entered: 12/02/2009)
Transmission of Notice of Appeal to the District Judge re: 780 Amended Notice of Appeal,. (nd) (Entered: 12/02/2009)
Transmission of Amended Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 780 Amended Notice of Appeal,. (nd) (Entered: 12/02/2009)
781 ORDER granting 777 Motion for Jonathan Band to Appear Pro Hac Vice for America Library Association, Association of College and Research Libraries and Assocation of Research Libraries. (Signed by Judge Denny Chin on 12/3/2009) (jmi) (Entered: 12/04/2009)
Transmission to Attorney Admissions Clerk. Transmitted re: 781 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jmi) (Entered: 12/04/2009)
CASHIERS OFFICE REMARK on 777 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 11/19/2009, Receipt Number 706520. (jd) (Entered: 12/04/2009)
783 LETTER addressed to Judge Denny Chin from Dina Cox dated 1/19/10 re: Proposed Google Book Settlement and I am opting out, ﬁled by Dina Cox. (cd) (Entered: 01/26/2010)
784 LETTER addressed to Judge Denny Chin from Edward Lipsett dated 1/12/2010 re: By this letter, I opt out of the proposed settlement in this case. (jmi) (Entered: 01/27/2010)
785 LETTER addressed to Judge Denny Chin from Luis Ortiz dated 1/11/2010 re: By this letter, I opt out of the proposed settlement in this case. (jmi) (Entered: 01/27/2010)
786 LETTER addressed to Judge Denny Chin from Jonatha Ceely dated 1/19/2010 re: By this letter, I opt out of the proposed settlement in this case. (jmi) (Entered: 01/27/2010)
787 LETTER addressed to Judge Denny Chin from Margaret Jane Ross dated 1/20/2010 re: By this letter, I opt out of the proposed settlement in this case. (jmi) (Entered: 01/27/2010)
788 LETTER addressed to Judge Denny Chin from Margaret Jane Ross (Mr. Cooke) dated 1/19/2010 re: By this letter, I opt out of the proposed settlement in this case. (jmi) (Entered: 01/27/2010)
789 LETTER addressed to Judge Denny Chin from Dina E. Cox dated 1/19/2010 re: By this letter, I opt out of the proposed settlement in this case. (jmi) (Entered: 01/27/2010)
790 LETTER addressed to Judge Denny Chin from Barbara Morrison dated 1/26/2010 re: I opt out of the proposed settlement in this case. I am opting out of both the "Author SubClass" and the "Publisher Sub-Class", and out of the settlement in its entirely. I have written and/or published works under names including, but not limited to, the following

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variant spellings, forms, pen names, and/or pseudonyms: B.Morrison, Barbara Morrison. I am the owner of Cottey House Press. (mbe) (mbe). (Entered: 01/27/2010)
791 LETTER addressed to Judge Denny Chin from Paul N. Courant dated 1/18/2010 re: I write to express my interest in speaking at the Fairness Hearing per your order of 19 November 2009. My interest in the case are many. I am an active scholar in economics and public policy, and am the author of many works that are subject to the settlement. I am also the University Librarian and Dean of Libraries at the University of Michigan, and was the Provost and Executive Vice-President of the University at the time that Google began scanning the University's collections. In my role as librarian I oversee the University of Michigan Press, a signiﬁcant academic publisher. As Provost and as Librarian I have been closely engages for several years with the Google scanning project, and the aspects of the settlement that have implication for participating libraries. As an active scholar and mender of the author class, as an academic administrator, and as the head of a major research library with responsibility for a university press, it is my strongly held opinion that the settlement will be of great beneﬁt to the general public and to scholarly practice and progress. I would be most grateful for the opportunity to share these views with the Court at the Fairness Hearing.(mbe) (Entered: 01/27/2010)
792 LETTER addressed to Judge Denny Chin from Antonio Ma. Avila dated 1/26/2010 re: I am the Executive Director of the Federation de Gremios de Editores de Espana. We write to object to the Amended Settlement Agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicative ﬁlings. We therefore object to the Amended Settlement Agreement by reference to the observations of Borsenverein de Deutschen Buchhandels, Syndicat National de I'edition and Associazione Italiana Editore, in its amicus curiae letter, which hereby become an integral part of our own objections as ﬁeld herewith. (mbe) (Entered: 01/27/2010)
796 LETTER addressed to Judge Denny Chin from Racheli Edelman dated 1/24/2010 re: I am and Israeli Publisher of Schocken Publishing house and the Hebrew Encyclopedia. We were very pleased to get the honorable court decision to exclude all books that are not being published in the US in the Canada, the UK and Australia from the Google Settlement agreement. Nevertheless we would like to make sure that all the books that were published by the following publishing houses will be removed from the Google Books sites. Therefore we will be grateful if the court will authorize Google not to put the above mentioned publishing houses titles on their books sites.(mbe) (Entered: 01/27/2010)
797 LETTER addressed to Judge Denny Chin from Sandra Csillag dated 1/18/2010 re: We respectfully request the court's permission to submit this letter as an amicus curiae brief opposing approval of the Amended Settlement Agreement in the above case. LiterarMechana therefore requests the Court to deny ﬁnal approval of theAmended Settlement Agreement unless the following amendments are made.(mbe) (Entered: 01/27/2010)
***DELETED DOCUMENT. Deleted document number 793 Letter. The document was ﬁled as a duplicate entry in this case. (djc) (Entered: 01/27/2010)
***DELETED DOCUMENT. Deleted document number 794 letter. The document was ﬁled as a duplicate entry in this case. (djc) (Entered: 01/27/2010)
***DELETED DOCUMENT. Deleted document number 795 letter. The document was ﬁled as a duplicate entry in this case. (djc) (Entered: 01/27/2010)
****DELETED DOCUMENT. Deleted document number 798 letter. The document was ﬁled as a duplicate entry in this case. (djc) (Entered: 01/27/2010)

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812 LETTER addressed to Judge Denny Chin from Antonio Ma. Avila dated 1/26/10 re: Antonio Ma. Avila writes to object to the Amended Settlement Agreement. We do not have the resources to provide this Court with legal brieﬁng regarding our objections nor do we wish to burden this Court with duplicative ﬁlings. We therefore object to the Amended Settlement Agreement by reference to the observations of Borsenverein des Deutschen Buchhandels, Syndicat National de I'edition and Associazione Italiana Editore. in its amicus curiae letter, which hereby become an integral part of our own objections as ﬁled herewith. (pl) (Entered: 01/27/2010)
813 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Douglas Johnson and Maureen Johnson dated 1/26/10 re: I am opting out of both the "Author Sub-Class" and the "Publisher Sub-Class," and out of the settlement in its entirety. (pl) (Entered: 01/27/2010)
799 LETTER addressed to J. Michael McMahon from Graham Swift dated 1/14/2010 re: Google Book Settlement. Please ﬁnd enclosed for your reference a copy of my letter, mailed (by UK certiﬁed airmail) on 14th January 2010 to the Google Book Search Administrator, by which I opt out of the Google Book Settlement. Please conﬁrm your receipt and ﬁling of this letter and enclosure. (mbe) (Entered: 01/27/2010)
800 LETTER addressed to Judge Denny Chin from David R. M. Prest dated undated re: party notiﬁes the Court that is opting out of ht proposed settlement in this case. Opting out of both the Author Sub-Class and Publisher Sub-Class and our to the settlement in its entirety. (djc) (Entered: 01/27/2010)
801 LETTER addressed to the Clerk of the Court from Blaine Regan Newton dated 1/12/10 re: party notiﬁed the Court that he is opting our of the settlement in this case, both the Author sub-Class and the Publisher Sub-Class and out of the settlement in its entirety. (djc) (Entered: 01/27/2010)
802 LETTER addressed to the Clerk of the Court from Vivian Kane dated 1/5/10 re: party notiﬁed the Court that she is opting our of the settlement in this case, both the Author sub-Class and the Publisher Sub-Class and out of the settlement in its entirety. (djc) (Entered: 01/27/2010)
804 LETTER addressed to the Clerk of the Court from Leigh Faulkner, dated 1/12/10 re: party notiﬁed the Court that she is opting our of the settlement in this case, both the Author sub-Class and the Publisher Sub-Class and out of the settlement in its entirety. (djc) (Entered: 01/27/2010)
805 LETTER addressed to the Clerk of the Court from Alisa Smith, dated 1/6/08 re: party notiﬁes the Court that she is opting out of the settlement in this case, both the Author sub-Class and the Publisher Sub-Class and out of the settlement in its entirety. (djc) (Entered: 01/27/2010)
806 LETTER addressed to the Clerk of the Court from Blaine Regan Newton dated 1/12/10 re: party notiﬁed the Court that she is opting our of the settlement in this case, both the Author sub-Class and the Publisher Sub-Class and out of the settlement in its entirety. (djc) (Entered: 01/27/2010)
807 LETTER from Niyogi Books dated undated re: OBJECTIONS OF NIYOGI BOOKS, IPP CATALOGUE PUBLICATIONS, STAR PUBLICATIONS PVT. LTD., PlJ8TAK MAHAL, UNICORN BOOKS I)VT. LTD, LAXMI PUBLICATIONS PVT. LTD., PRAGUN PUBLICATION, ESS ESSPUBLICATIONS, NEW CENTURY PUBLICATION, DAYA PUBLISHING HOUSE, ARORA LAW BOOK AGENCY, DR. SAROJINI PRITAM AND AAKAR BOOKS TO THE PROPOSED REVISED SETTLEMENT AND BRIEF OF AMICI ClJRIAE,FEDERATION OF INDIAN

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01/27/2010

808 LETTER addressed to Court from Clare Morrall dated 1/13/10 re: this is to give notice that I am opting out of the Author Sub-Class in the Google Book Settlement, and from any participation in the settlement. (djc) (Entered: 01/27/2010)

01/27/2010

809 LETTER addressed to Clerk of Court from Matthew Charles Francis dated 1/14/10 re: party notiﬁes court that he is opting out of both the Author Sub-Class and Publisher SubClass and out of the settlement in its entirey. (djc) (Entered: 01/27/2010)

01/27/2010

810 LETTER addressed to Google Book Search Settlement Admin. from Heather Morrall dated undated re: party gives notice that he is opting out of the Author Sub-Class in the Google Book Settlement, and from any participation in the settlement. (djc) (Entered: 01/27/2010)

01/27/2010

811 MEMORANDUM OF LAW MEMORANDUM OF AMICUS CURIAE THE INTERNET ARCHIVE IN OPPOSITION TO AMENDED SETTLEMENT AGREEMENT. Document ﬁled by The Internet Archive. (Boccanfuso, Anthony) (Entered: 01/27/2010)

01/27/2010

814 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Andrea Winterbottom dated 1/4/10 re: Andrea Winterbottom writes by this letter, to opt out of the proposed settlement in this case. I am opting out of both the "Author Sub-Class" and the "Publisher Sub-Class," and out of the settlement in its entirety. (pl) (Entered: 01/27/2010)

01/27/2010

815 LETTER addressed to Google Book Search Settlement Administrator from Chelsea Duke dated 1/4/10 re: Chelsea Duke writes to request that I opt out of the Google Book Settlement in respect of the following work: Title: High Heels and a Head Torch: The Essential Guide for Girls Who Backpack. I am opting out of the Author Sub-Class and am the author of the work. (pl) (Entered: 01/27/2010)

01/27/2010

816 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from David McRae dated 1/7/10 re: By this letter, I opt out of the proposed settlement in this case. I am opting out of both the "Author Sub-Class" and the "Publisher Sub-Class" and out of the settlement in its entirety. (pl) (Entered: 01/27/2010)

01/27/2010

817 LETTER addressed to Ofﬁce of the Clerk J. Michael McMahon from Diana Kimpton dated 1/10/10 re: that as a result of the within objections, I ask the court to refuse to certify the class and to reject the Amended Settlement Agreement. If the Amended Settlement goes back for renegotiation, the minimum changes required include a) limiting its scope to books published in the USA b) limiting its scope to allowing Google to scan books for search purposes only and to display snippets of strictly limited length, determined as a percentage of the whole work or insert. c) treating all incopyright books the same so that no book that is still in copyright could be used in any way by Google without the express consent ofthe copyright holder. This would remove all the problems associated with deciding if a book is Not Commercially Available, remove the need for an unclaimed works ﬁduciary and give all copyright holders the protection they are entitled to under International Copyright Law. (pl) (Entered: 01/27/2010)

01/27/2010

818 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District of New York from Erika Faith Larsen dated 1/27/10 re: By this letter, I opt out of the proposed settlement in this case. I am opting out of both the"Author Sub-Class" and the "Publisher Sub-Class," and out of the settlement in its entirety. (pl) (Entered: 01/27/2010)

01/27/2010 819 LETTER addressed to Ofﬁce of the Clerk, U.S. District Court for the Southern District

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of New York from Thomas King, Hartley Goodweather dated 1/27/10 re: By this letter, I opt out of the proposed settlement in this case. I am opting out of both the "Author SubClass" and the "Publisher Sub-Class" and out of the settlement in its entirety. (pl) (Entered: 01/27/2010)
820 NOTICE of FILING OF OBJECTION TO AMENDED SETTLEMENT. Document ﬁled by Hachette Livre SA, Librarie Arthme Fayard SA, Dunod Editeur SA, Les Editions Hatier SNC, Editions Larousse SAS. (Attachments: # 1 Exhibit 1)(Micheletto, Robert) (Entered: 01/27/2010)
821 LETTER addressed to Google Book Search Settlement Administrator from Tony Peake dated 12/24/09 re: This is to conﬁrm that as an author I wish to opt out of the Google settlement, which I have already done on line. In addition, I do not want my books to be digitized - and I request that any books of mine that have been digitized be removed from Google's database. (pl) (Entered: 01/27/2010)
822 NOTICE of FILING OF OBJECTION TO AMENDED SETTLEMENT. Document ﬁled by Hachette UK Limited. (Attachments: # 1 Exhibit 1)(Micheletto, Robert) (Entered: 01/27/2010)
823 Objection of Amazon.com, Inc., to Proposed Amended Settlement. Document ﬁled by Amazon.com, Inc.. (Wiles, Alexander) (Entered: 01/27/2010)
824 NOTICE OF APPEARANCE by Cindy A. Cohn on behalf of Electronic Frontier Foundation et al. (Cohn, Cindy) (Entered: 01/27/2010)
826 LETTER addressed to Judge Denny Chin from Jacqueline C. Hushion dated 1/27/10 re: request that the Court approve the amended Google Book Settlement as proposed. Document ﬁled by The Canadian Publishers' Council.(dle) (Entered: 01/28/2010)
***DELETED DOCUMENT. Deleted document number 803 LETTER. The document was incorrectly ﬁled in this case. (ae) (Entered: 03/19/2010)
825 LETTER addressed to Judge Denny Chin from Simon Juden dated 1/27/10 re: request thta the Court approve the Amended Settlement Agreement. Document ﬁled by Publisher's Association.(dle) (Entered: 01/28/2010)
827 LETTER addressed to Judge Denny Chin from Magdalena Vinent dated 1/22/10 re: CEDRO requests the Court's permission to submit this letter as an amicus curiae brief opposing approval of the amended settlement agreement. Document ﬁled by CEDRO. (dle) (Entered: 01/28/2010)
828 LETTER addressed to Judge Denny Chin from Antoine Gallimard dated 1/26/10 re: objection to the amended settlement agreement. Document ﬁled by Antoine Gallimard. (dle) (Entered: 01/28/2010)
829 LETTER addressed to Judge Denny Chin from Francis Esmenard, President dated 1/26/10 re: objection to the Amended Settlement Agreement. Document ﬁled by Editions Albin Michel.(dle) (Entered: 01/28/2010)
830 LETTER addressed to Judge Denny Chin from Maree McCaskill dated 1/28/10 re: request that the Court accept and approve the Amended Settlement in the form in which it currently appears. Document ﬁled by Australian Publishers Association.(dle) (Entered: 01/28/2010)
831 LETTER addressed to Judge Denny Chin from Alain Kouck dated 1/26/10 re: objection to the Amended Settlement Agreement. Document ﬁled by Editis Group.(dle) (Entered: 01/28/2010)

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832 LETTER addressed to J. Michael McMahon, Clerk of the Court from John Mauldin dated 1/18/10 re: objection to the Amended Settlement Agreement. Document ﬁled by John Mauldin.(dle) (Entered: 01/28/2010)
833 LETTER addressed to Judge Denny Chin from Irene Lindon dated 1/26/10 re: objection to the Amended Settlement Agreement. Document ﬁled by Les Editions De Minuit S.A. (dle) (Entered: 01/28/2010)
834 LETTER addressed to Judge Denny Chin from Michel Prigent dated 1/26/10 re: objection to the Amended Settlement Agreement. Document ﬁled by Presses Universitaires de France.(dle) (Entered: 01/28/2010)
835 NOTICE OF APPEARANCE by Ron Lazebnik on behalf of Science Fiction and Fantasy Writers of America, Inc., American Society of Journalists and Authors, Inc. (Lazebnik, Ron) (Entered: 01/28/2010)
836 LETTER addressed to Judge Denny Chin from Serge Eyrolles dated 1/26/10 re: objection to the Amended Settlement Agreement. Document ﬁled by French Publishers Association.(dle) (Entered: 01/28/2010)
837 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Science Fiction and Fantasy Writers of America, Inc..(Lazebnik, Ron) (Entered: 01/28/2010)
838 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by American Society of Journalists and Authors, Inc..(Lazebnik, Ron) (Entered: 01/28/2010)
839 LETTER addressed to Judge Denny Chin from Ursula K. LeGuin dated 1/25/10 re: author LeGuin opts out of settlement and provides petition regarding the Google Book Settlement including 367 signatures. Document ﬁled by Ursula K. LeGuin.(dle) (Entered: 01/28/2010)
840 MEMORANDUM OF LAW SUPPLEMENTAL MEMORANDUM OF AMICUS CURIAE OPEN BOOK ALLIANCE IN OPPOSITION TO THE PROPOSED SETTLEMENT BETWEEN THE AUTHORS GUILD, INC., ASSOCIATION OFAMERICAN PUBLISHERS, INC., ET AL., AND GOOGLE INC.. Document ﬁled by Open Book Alliance. (Boccanfuso, Anthony) (Entered: 01/28/2010)
841 SECOND BRIEF of Consumer Watchdog, Amicus Curiae, in Opposition to re: 768 MOTION to Approve / Notice of Motion for Preliminary Approval of Amended Settlement Agreement. Document ﬁled by Consumer Watchdog.(Fetterman, Daniel) (Entered: 01/28/2010)
842 Amicus Curiae APPEARANCE entered by John Burnett Morris, Jr on behalf of Center for Democracy & Technology.(Morris, John) (Entered: 01/28/2010)
843 Objection to the Amended Proposed Settlement. Document ﬁled by Takashi Atouda, Jiro Asada, Takeaki Hori, Shinobu Yoshioka, Kenta Yamada, Tomotsuyo Aizawa, Yu Ohara, Yasumasa Kiyohara, Takashi Tsujii, Akira Nogami, Hiroyuki Shinoda, Toshihiko Yuasa, Hidehiko Nakanishi, Yashio Uemura, Nobuo Uda, Tsukasa Yoshida. (Saito, Yasuhiro) (Entered: 01/28/2010)
844 NOTICE of of Intent to Appear and Be Heard at the Fairness Hearing. Document ﬁled by Takashi Atouda, Jiro Asada, Takeaki Hori, Shinobu Yoshioka, Kenta Yamada, Tomotsuyo Aizawa, Yu Ohara, Yasumasa Kiyohara, Takashi Tsujii, Akira Nogami, Hiroyuki Shinoda, Toshihiko Yuasa, Hidehiko Nakanishi, Yashio Uemura, Nobuo Uda, Tsukasa Yoshida. (Saito, Yasuhiro) (Entered: 01/28/2010)

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845 NOTICE OF APPEARANCE by Cynthia S. Arato on behalf of Carl Hanser Verlag, Lynley Hood (Arato, Cynthia) (Entered: 01/28/2010)
846 NOTICE OF APPEARANCE by Cynthia S. Arato on behalf of New Zealand Society of Authors (Arato, Cynthia) (Entered: 01/28/2010)
847 NOTICE OF APPEARANCE by Alexandra A. E. Shapiro on behalf of Carl Hanser Verlag, Lynley Hood, New Zealand Society of Authors (Shapiro, Alexandra) (Entered: 01/28/2010)
848 MOTION to File Amicus Brief by Japan P.E.N. Club in Opposition to Amended Proposed Settlement. Document ﬁled by Japan P.E.N. Club. (Attachments: # 1 Japan P.E.N. Club's Amicus Curiae Brief in Opposition to Amended Proposed Settlement Agreement)(Saito, Yasuhiro) (Entered: 01/28/2010)
849 Objection to Amended Class Action Settlement Agreement. Document ﬁled by Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden. (Attachments: # 1 Exhibit Objections of Guthrie, et al. to Proposed Settlement Agreement, # 2 Exhibit Supplemental Declaration of Catherine Ryan Hyde)(DeVore, Andrew) (Entered: 01/28/2010)
850 NOTICE of Objections to Amended Class Action Settlement And Notice of Intent To Appear at the February 18, 2010 Fairness Hearing. Document ﬁled by Darlene Marshall. (Weiss, Matthew) (Entered: 01/28/2010)
851 Objection of the State of Connecticut to Amended Class-Action Settlement. Document ﬁled by Richard Blumenthal CT Attorney General. (Becker, Gary) (Entered: 01/28/2010)
852 MEMORANDUM OF LAW in Opposition to the Amended Settlement Agreement. Document ﬁled by Federal Republic of Germany. (Max, Theodore) (Entered: 01/28/2010)
853 DECLARATION of Nicolas Georges in Opposition re: 768 MOTION to Approve / Notice of Motion for Preliminary Approval of Amended Settlement Agreement.. Document ﬁled by French Republic. (Max, Theodore) (Entered: 01/28/2010)
854 LETTER addressed to Judge Denny Chin from Susan Price dated 1/27/10 re: Request that the Court refuse to certify the class and to reject the Amended Settlement Agreement. (db) (Entered: 01/28/2010)
855 SUPPLEMENTAL OBJECTION OF SCOTT E. GANT TO PROPOSED SETTLEMENT, AND TOCERTIFICATION OF THE PROPOSED SETTLEMENT CLASS AND SUB-CLASSES. (db) (Entered: 01/28/2010)
856 LETTER addressed to Judge Denny Chin from James Grimmelman dated 1/28/10 re: The Court should reject the Proposed Amended Settlement Agreement. (db) (Entered: 01/28/2010)
857 LETTER addressed to Judge Denny Chin from Dr. Robert Staats and Rainer Just, CoManaging Directors, VG WORT dated 1/21/10 re: Request that the Court deny ﬁnal approval of the Amended Settlement Agreement. (db) (Entered: 01/28/2010)
858 LETTER addressed to Mr. McMahon from Marc Maurer, President, National Federation of the Blind dated 1/19/10 re: Request for the Opportunity of the National Federation of the Blind to address the court brieﬂy at the February 18 fairness hearing. (db) (Entered: 01/28/2010)
859 NOTICE of Supplemental Objections. Document ﬁled by Charles D Weller, Dirk Sutro.

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(Siegel, Edward) (Entered: 01/28/2010)
860 Objection re: 768 MOTION to Approve / Notice of Motion for Preliminary Approval of Amended Settlement Agreement.. Document ﬁled by Commonwealth of Pennsylvania, Attorney General. (Marden, Norman) (Entered: 01/28/2010)
861 NOTICE OF APPEARANCE by Derek Tam Ho on behalf of AT&T CORP. (Ho, Derek) (Entered: 01/28/2010)
862 REPLY. Document ﬁled by Writers' Representatives LLC. (Chu, Lynn) (Entered: 01/28/2010)
863 Objection to the Amended Settlement Agreement. Document ﬁled by AT&T CORP.. (Attachments: # 1 Exhibit Exhibits A-I)(Guzman, Michael) (Entered: 01/28/2010)
864 MEMORANDUM OF LAW in Opposition to the Amended Settlement Agreement. Document ﬁled by Science Fiction and Fantasy Writers of America, Inc., American Society of Journalists and Authors, Inc.. (Lazebnik, Ron) (Entered: 01/28/2010)
865 DECLARATION of Ron Lazebnik. Document ﬁled by Science Fiction and Fantasy Writers of America, Inc., American Society of Journalists and Authors, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lazebnik, Ron) (Entered: 01/28/2010)
866 NOTICE of Intent to Appear. Document ﬁled by Science Fiction and Fantasy Writers of America, Inc., American Society of Journalists and Authors, Inc.. (Lazebnik, Ron) (Entered: 01/28/2010)
867 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Carl Hanser Verlag, New Zealand Society of Authors.(Arato, Cynthia) (Entered: 01/28/2010)
868 Objection to the Amended Settlement Agreement. Document ﬁled by Carl Hanser Verlag, Lynley Hood, New Zealand Society of Authors. (Arato, Cynthia) (Entered: 01/28/2010)
869 DECLARATION of Pierfrancesco Attanasio in Support re: 868 Objection (non-motion). Document ﬁled by Associazone Italiana Editori. (Arato, Cynthia) (Entered: 01/28/2010)
870 DECLARATION of Stephan Joss in Support re: 868 Objection (non-motion). Document ﬁled by Carl Hanser Verlag. (Arato, Cynthia) (Entered: 01/28/2010)
871 DECLARATION of Inge Kralupper in Support re: 868 Objection (non-motion). Document ﬁled by Hauptverband des Osterreichischen Buchhandels. (Arato, Cynthia) (Entered: 01/28/2010)
872 DECLARATION of Christian Sprang in Support re: 868 Objection (non-motion). Document ﬁled by Borsenverein des Deutschen Buchhandels. (Arato, Cynthia) (Entered: 01/28/2010)
873 NOTICE OF APPEARANCE by Cynthia S. Arato on behalf of Associazone Italiana Editori (Arato, Cynthia) (Entered: 01/28/2010)
874 Objection of Microsoft Corporation to Proposed Amended Settlement and Certiﬁcation of Proposed Settlement Class and Sub-Classes. Document ﬁled by Microsoft Corporation. (Rubin, Thomas) (Entered: 01/28/2010)
875 LETTER addressed to Judge Denny Chin from Teresa Cremisi dated 1/26/2010 re: We therefore object to the amended settlement agreement by reference to the observations of French Publishers Association in its amicus curiae letter, which hereby become an integral part of our own objections as ﬁled herewith. (jpo) (Entered: 01/29/2010)

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876 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from M. Le Fanu dated 1/22/2010 re: In conclusion, our Management Committee and most members who have expressed a view consider that at a time when the creative industries are struggling to ﬁnd "new models" for the digital age which can satisfy both rights holders and users, the Google Book Settlement offers a reasonable and practical way forward. (jpo) (Entered: 01/29/2010)

01/29/2010

877 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Rodger Touchie dated 1/28/2010 re: We consider the amended Settlement to be in the best interest of the majority of our members, particularly because it allows many Canadian publishers and/or authors to opt out of the agreement, with a process for doing so that is logical and transparent. (jpo) (Entered: 01/29/2010)

01/29/2010

878 LETTER addressed to Judge Denny Chin from Franziska Eberhard dated 1/21/2010 re: ProLitteris therefore requests the Court to deny ﬁnal approval of the Amended Settlement Agreement unless the following amendments are made, as set forth in this letter. (jpo) (Entered: 01/29/2010)

01/29/2010

879 NOTICE OF INTENT TO APPEAR: I, Scott E. Gant, hereby notify the Court of my intent to appear at the Fairness Hearing in the above captioned case, currently scheduled for February 18, 2010. As explained in my Objection, ﬁled in August 2009, I will be appearing in my individual capacity, as a member of the proposed Author Sub-Class. (jpo) (Entered: 01/29/2010)

01/29/2010

880 LETTER addressed to Judge Denny Chin from John B. Morris dated 1/28/2010 re: I am writing for two purposes: to submit an amended version of our amicus brief and to request tp appear at the hearing. (jpo) (Entered: 01/29/2010)

01/29/2010

881 LETTER addressed to Judge Denny Chin from Samantha Holman dated 1/26/2010 re: Requesting that Court's permission to submit this letter as an amicus curiae brief opposing approval of the Amended Settlement Agreement in this case. (jpo) (jpo). (Entered: 01/29/2010)

01/29/2010

882 LETTER addressed to Judge Denny Chin from Christian Cherdon dated 1/22/2010 re: Requesting that the Court deny ﬁnal approval of the Amended Settlement Agreement. (jpo) (Entered: 01/29/2010)

01/29/2010

883 LETTER addressed to Judge Denny Chin from Antonio Ma. Avila dated 1/26/2010 re: We therefore object to the Amended Settlement Agreement. (jpo) (Entered: 01/29/2010)

01/29/2010

884 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from William Ash dated 1/12/2010 re: As an authors and publishers, I and my partner, Naomi Otsubo, would like to state our objections to the amended Google Book Settlement. (jpo) (Entered: 01/29/2010)

01/29/2010

885 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Paulina Borsook dated 1/26/2010 re: Requesting that the Court junk Google Book Settlement 2.0 in favor of something that actually beneﬁts and respects creators, and shows vision not blinded by Google dust. (jpo) (Entered: 01/29/2010)

01/29/2010

886 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Donic Bettanin dated 1/22/2010 re: We wish to lodge an objection to the Amendments to the Original Google Book Settlement. (jpo) (Entered: 01/29/2010)

01/29/2010

887 LETTER addressed to Judge Denny Chin from Jennifer S. Jackson dated 1/27/2010 re: The State of Texas writes to object to the Amended Settlement Agreement. (jpo) (Entered: 01/29/2010)

01/29/2010 888 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Stuart Bernstein

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dated 1/26/2010 re: We beseech the Court to give authors back their rights. Force Google to negotiate like any other publisher. (jpo) (Entered: 01/29/2010)
889 LETTER addressed to William F. Cavanaugh from Joanne Merriam dated 1/25/2010 re: I write to express my views and concerns regarding how the United States should respond to the Amended Settlement Agreement ﬁled on November 13, 2009. (jpo) (Entered: 01/29/2010)
890 LETTER addressed to Judge Denny Chin from Tony Simpson dated 1/27/2010 re: Requesting the Court's permission to submit this letter as an amicus brief opposing approval of the Amended Settlement Agreement in this case. (jpo) (Entered: 01/29/2010)
891 LETTER addressed to Judge Denny Chin from Kees Holierhoek dated 1/26/2010 re: Requesting the Court's permission to submit this letter as an amicus curiae brief opposing approval of the Amended Settlement Agreement. (jpo) (Entered: 01/29/2010)
892 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Moira Munro dated 1/16/2010 re: I hope that the Court will refuse to certify the class and reject the Amended Settlement Agreement. (jpo) (Entered: 01/29/2010)
893 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Pamela Samuelson dated 1/27/2010 re: I am writing to express my intent to appear at the Fairness Hearing for the above cited case, currently scheduled for February 18, 2010. (jpo) (Entered: 01/29/2010)
894 LETTER addressed to Ofﬁce of the Clerk from Martin Kahn dated 1/27/2010 re: Requesting the Court's approval to withdraw its objections, ﬁled on September 8, 2009, pursuant to Rules 23(e)(5) of the F.R.C.P.. (jpo) (Entered: 01/29/2010)
895 BRIEF OF AMICUS CURIAE PUBLIC KNOWLEDGE IN OPPOSITION TO THE AMENDED PROPOSED SETTLEMENT. Document ﬁled by Public Knowledge.(jpo) (Entered: 01/29/2010)
896 NOTICE of Intent to Appear at the Feb. 18, 2010 Fairness Hearing. Document ﬁled by Microsoft Corporation. (Rubin, Thomas) (Entered: 02/01/2010)
897 NOTICE OF APPEARANCE by Alexandra A. E. Shapiro on behalf of Associazone Italiana Editori (Shapiro, Alexandra) (Entered: 02/01/2010)
898 LETTER addressed to Judge Denny Chin from Gregory Crane dated 8/7/2009 re: In support of the books Google has digitalized reach the widest possible audience as quickly as possible. (jfe) (Entered: 02/02/2010)
899 LETTER addressed to Judge Denny Chin from Lewis Hyde dated 1/27/2010 re: Counsel writes to amend the letter of objection that counsel wrote last August in regard to The Authors Guild, Inc., et al. v. Google Inc. (jfe) (Entered: 02/02/2010)
900 LETTER addressed to Judge Denny Chin from James L. Turk dated 1/28/2010 re: CAUT writes to you to register its objection to the proposed amended settlement agreement. (jfe) (Entered: 02/02/2010)
901 OBJECTION OF WASHINGTON LEGAL FOUNDATION TO AMENDED PROPOSED SETTLEMENT AND TO CERTIFICATION OF THE PROPOSED SETTLEMENT CLASS AND SUBCLASSES. Filed by Richard A. Samp. (jfe) (Entered: 02/02/2010)
902 NOTICE OF INTENT TO APPEAR ﬁled by Science Fiction and Fantasy Writers of America, Inc., and the American Society of Journalists and Authors, Inc. (jfe) (Entered:

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903 LETTER addressed to Judge Denny Chin from Ron Lazebrik dated 1/28/2010 re: Counsel writes to inform that SFWA and ASJA are members of the Author Sub-Class in this action and object to the proposed amended settlement agreement. Attached herein is that Objection of Science Fiction and Fantasy Writes of America, Inc., and American Society of Journalists and Authors Inc., to the Amended Settlement Agreement. (jfe) (Entered: 02/02/2010)

02/02/2010

904 NOTICE of Intent to Appear at the February 18, 2010 Fairness Hearing. Document ﬁled by Arlo Guthrie, Julia Wright, Catherine Ryan Hyde, Eugene Linden. (DeVore, Andrew) (Entered: 02/02/2010)

02/02/2010

905 NOTICE of of Intent to Appear by Amazon.com, Inc.. Document ﬁled by Amazon.com, Inc.. (Wiles, Alexander) (Entered: 02/02/2010)

02/02/2010

906 MOTION for Kiran Sriram Raj to Appear Pro Hac Vice. Document ﬁled by AT&T CORP.(mro) (Entered: 02/03/2010)

02/02/2010

907 MOTION for Michael Kerry Kellogg to Appear Pro Hac Vice. Document ﬁled by AT&T CORP.(mro) (Entered: 02/03/2010)

02/03/2010

908 NOTICE of INTENT TO APPEAR AT THE FEBRUARY 18, 2010 FAIRNESS HEARING. Document ﬁled by The Internet Archive. (Boccanfuso, Anthony) (Entered: 02/03/2010)

02/03/2010

909 NOTICE of INTENT TO APPEAR AT THE FEBRUARY 18, 2010 FAIRNESS HEARING. Document ﬁled by Open Book Alliance. (Boccanfuso, Anthony) (Entered: 02/03/2010)

02/03/2010

910 NOTICE of of Intent to Appear at Fairness Hearing. Document ﬁled by Electronic Privacy Information Center. (Rotenberg, Marc) (Entered: 02/03/2010)

02/03/2010

911 REQUEST TO PARTICIPATE of Consumer Watchdog at the February 18, 2010 Fairness Hearing as Amicus Curiae. Document ﬁled by Consumer Watchdog. (Fetterman, Daniel) (Entered: 02/03/2010)

02/04/2010

CASHIERS OFFICE REMARK on 906 Motion to Appear Pro Hac Vice, 907 Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 02/02/2010, Receipt Number 893451. (jd) (Entered: 02/04/2010)

02/04/2010

912 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document ﬁled by Associazone Italiana Editori.(Arato, Cynthia) (Entered: 02/04/2010)

02/04/2010

913 NOTICE of Intent to Appear. Document ﬁled by Carl Hanser Verlag, Lynley Hood, New Zealand Society of Authors, Associazone Italiana Editori, Borsenverein des Deutschen Buchhandels, Schweizer Buchhandler - und Verleger-Verband SBVV, Hauptverband des Osterreichischen Buchhandels. (Arato, Cynthia) (Entered: 02/04/2010)

02/04/2010

914 NOTICE of Intent to Appear at the February 18, 2010 Fairness Hearing re: 851 Objection (non-motion). Document ﬁled by Richard Blumenthal CT Attorney General. (Becker, Gary) (Entered: 02/04/2010)

02/04/2010

915 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - REQUEST TO PARTICIPATE of Sony Electronics at the February 18, 2010 Fairness Hearing as Amicus Curiae(LETTER). Document ﬁled by Sony Electronics Inc..(Coplan, Jennifer) Modiﬁed on 2/5/2010 (KA). (Entered: 02/04/2010)

02/04/2010

916 NOTICE of Intent to Appear. Document ﬁled by AT&T CORP.. (Guzman, Michael) (Entered: 02/04/2010)

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02/05/2010 02/05/2010

SDNY CM/ECF Version 6.1.1
917 NOTICE of to Appear at the Fairness Hearing. Document ﬁled by Questia Media Inc.. (Kaplan, Lee) (Entered: 02/04/2010)
918 NOTICE of Intent to Appear at the Fairness Hearing on February 18, 2010. Document ﬁled by Federal Republic of Germany. (Max, Theodore) (Entered: 02/04/2010)
919 NOTICE of Intent to Appear at the Fairness Hearing on February 18, 2010. Document ﬁled by French Republic. (Max, Theodore) (Entered: 02/04/2010)
920 LETTER addressed to Judge Denny Chin from Lateet Mtima and Steven D. Jamar dated 1/27/2010 re: The Institute of Intellectual Property and Social Justice at the Howard University School of Law respectfully requests leave to address the Court on February 18, 2010, on the Google Books Settlement Agreement. (tve) (Entered: 02/04/2010)
921 LETTER addressed to Judge Denny Chin from Brett Smith dated 1/28/2010 re: The Free Software Foundation writes to urge the Court to reject the proposed settlement until the objections further set forth in this letter are addressed, including that terms are incorporated to ensure that works covered by Free licenses are always included in the Google Books Search database under the terms of that same license. (tve) (Entered: 02/04/2010)
922 NOTICE of Statement of Interest. Document ﬁled by United States of America. (Clopper, John) (Entered: 02/04/2010)
923 NOTICE of Intent to appear at Fairness Hearing on 2/18/2010. *Letter Addressed to Judge Denny Chin, From Sarah Canzoneri, dated 1/28/2010 re: Objection to the Settlement Agreement, attached hereto. Document ﬁled by Sarah E. Cazoneri. (tro) Modiﬁed on 2/5/2010 (tro). (Entered: 02/05/2010)
924 PETITION to Withdraw ProQuest LLC's Objections to the First Proposed Settlement. Document ﬁled by Proquest, LLC. (tro) (Entered: 02/05/2010)
925 SUPPLEMENTAL OBJECTION of Alex M.G. Burton re: For the reasons set forth in Mr. Burton's original and supplemental objection, this settlement should not be approved or the settlement classes certiﬁed. (tro) (Entered: 02/05/2010)
926 LETTER addressed to Judge Denny Chin from Philip Roberts dated 1/29/2010 re: The John Hopkin's University's Withdrawal of Objection to Settlement Agreement and Certiﬁcate of Service. *Withdrawal of Objection to Settlement Agreement attached hereto. (tro) (Entered: 02/05/2010)
927 LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Susan Bergholz dated 1/26/2010 re: Objection to the settlement agreement. (tro) (tro). (Entered: 02/05/2010)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 915 HAS BEEN REJECTED. Note to Attorney Jennifer B. Coplan : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (KA) (Entered: 02/05/2010)
928 LETTER addressed to Judge Denny Chin from Jennifer B. Coplan dated 2/4/2010 re: Requesting leave from the Court to appear at the fairness hearing scheduled for February 18, 2010. (jpo) (Entered: 02/05/2010)
929 NOTICE OF INTENT TO BE HEARD: Please let it be known that Joseph V. Saphia, attorney for amicus curiae VG Wort, intends to appear and be heard at this Court's February 18, 2009 hearing. (jpo) (Entered: 02/05/2010)

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930 ORDER: The Hearing will be held at 500 Pearl Street, New York, New York in Courtroom 23B at 10:00 a.m. on February 18, 2010. Overﬂow seating will be available in Courtroom 11A, where video of the proceeding will be provided. Seats will be reserved in the Courtroom for the parties, the government, and the twenty-six abovelistedobjectors, supporters, and amici. If any of the objectors, supporters, or amici listed above has not provided the name of the representative who will be speaking, it shall provide the name in writing to the Court promptly. (Signed by Judge Denny Chin on 2/5/2010) (jpo) (Entered: 02/05/2010)

02/06/2010

931 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - NOTICE OF APPEARANCE by Lynn T. Chu on behalf of Writers' Representatives LLC(LETTER). (Chu, Lynn) Modiﬁed on 2/8/2010 (KA). (Entered: 02/06/2010)

02/08/2010

***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 931 HAS BEEN REJECTED. Note to Attorney Lynn Chu : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (KA) (Entered: 02/08/2010)

02/08/2010

932 ORDER; that two additional entities have also notiﬁed the Court of their desire to be heard at the fairness hearing against the proposed settlement in this case: (1) The Commonwealth of Pennsylvania; and (2) Writers' Representatives LLC and Richard A. Epstein. They will be permitted to speak at the hearing, in accordance with the procedures set forth in the order dated February 5, 2010. (Signed by Judge Denny Chin on 2/8/10) (pl) (Entered: 02/08/2010)

02/09/2010

933 NOTICE of Intent To Appear. Document ﬁled by Charles Nesson, Nicholas Negroponte, Lewis Hyde, Harry Lewis. (Garbus, Martin) (Entered: 02/09/2010)

02/09/2010

934 NOTICE of of Intent to Appear by Marc Rotenberg on Behalf of the Electronic Privacy Information Center. Document ﬁled by Electronic Privacy Information Center. (Rotenberg, Marc) (Entered: 02/09/2010)

02/09/2010

936 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 906 Motion for Kiran Sriram Raj to Appear Pro Hac Vice. Kiran Sriram Raj is admitted to practice pro hac vice as counsel for AT&T Corp. and its afﬁliates in this action. (Signed by Judge Denny Chin on 2/9/2010) (tro) (Entered: 02/11/2010)

02/09/2010

937 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 907 Motion for Michael K. Kellogg to Appear Pro Hac Vice. Michael K. Kellogg is admitted to practice pro hac vice as counsel for AT&T Corp. and its afﬁliates in this action. (Signed by Judge Denny Chin on 2/9/2010) (tro) (Entered: 02/11/2010)

02/09/2010

938 ENDORSED LETTER addressed to Ofﬁce of the Clerk, J. Michael McMahon from Stuart Bernstein dated 2/4/2010 re: Please accept this letter as a notice of my intent to speak at the 2/18/2010 Fairness Hearing in the matter of the Amended Google Book Settlement. ENDORSEMENT: As this request was received on 2/9/2010, it is untimely. In light of the number of requests to speak, this request is DENIED as untimely. Mr. Bernstein is welcome to attend. (Signed by Judge Denny Chin on 2/9/2010) (tro) (Entered: 02/11/2010)

02/10/2010

935 NOTICE of Withdrawal of Request to Appear at the February 18, 2010 Fairness Hearing. Document ﬁled by Questia Media Inc.. (Kaplan, Lee) (Entered: 02/10/2010)

02/11/2010

939 NOTICE of INTENT TO APPEAR that the undersigned, of the law ﬁrm of Eaton & Van Winkle, LLP, intends to appear at the Fairness Hearing in the above-captioned action, currently scheduled for February 18,2010. ENDORSEMENT: Counsel may appear, but as this matter us untimely and numerous request to speck have been received counsel

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will not be permitted to speck. SO ORDERED. Document ﬁled by Lewis Hyde, Harry Lewis, Charles Nesson, Nicholas Negroponte. (jmi) Modiﬁed on 2/11/2010 (jmi). (Entered: 02/11/2010)
940 NOTICE of State of CT Withdrawal of Request to Appear at Feb 18, 2010 Fairness Hearing re: 914 Notice (Other). Document ﬁled by Richard Blumenthal CT Attorney General. (Becker, Gary) (Entered: 02/11/2010)
941 BRIEF of Google Inc. in Support of Motion for Final Approval of Amended Settlement Agreement. Document ﬁled by Google Inc..(Gratz, Joseph) (Entered: 02/11/2010)
942 MOTION for Attorney Fees Notice of Motion and Motion for Approval of Attorneys' Fees and Reimbursement of Costs. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman.(Boni, Michael) (Entered: 02/11/2010)
943 MEMORANDUM OF LAW in Support re: 942 MOTION for Attorney Fees Notice of Motion and Motion for Approval of Attorneys' Fees and Reimbursement of Costs. Memorandum of Law in Support of Motion of Counsel for the Author Sub-Class for an Award of Fees and Reimbursement of Costs. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Boni, Michael) (Entered: 02/11/2010)
944 DECLARATION of Michael J. Boni (w/Exhibits A-E) in Support re: 942 MOTION for Attorney Fees Notice of Motion and Motion for Approval of Attorneys' Fees and Reimbursement of Costs.. Document ﬁled by Paul Dickson, Joseph Goulden, The Author's Guild, Herbert Mitgang, Betty Miles, Daniel Hoffman. (Attachments: # 1 Exhibit F -- Declaration of Sanford P. Dumain, # 2 Exhibit G -- Declaration of Robert J. LaRocca)(Boni, Michael) (Entered: 02/11/2010)
945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 [Proposed] Final Judgment and Order of Dismissal)(Keller, Bruce) (Entered: 02/11/2010)
946 DECLARATION of Daniel Clancy in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 02/11/2010)
947 MEMORANDUM OF LAW in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement. / Memorandum of Law in Support of Plaintiffs' Motion for Final Settlement Approval. Document ﬁled by Association of American Publishers, Inc., The McGrawHill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 02/11/2010)
948 DECLARATION of Daphne Keller in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A (Google Books Privacy Policy))(Gratz, Joseph) (Entered: 02/11/2010)
949 DECLARATION of Richard Sarnoff in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGrawHill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 02/11/2010)

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950 DECLARATION of Owen Atkinson in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGrawHill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 02/11/2010)
951 DECLARATION of Jeffrey P. Cunard in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Cunard, Jeffrey) (Entered: 02/11/2010)
952 DECLARATION of Paul Aiken in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGrawHill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 02/11/2010)
953 DECLARATION of Tiffaney Allen in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGrawHill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Cunard, Jeffrey) (Entered: 02/11/2010)
954 DECLARATION of Belinda Bulger in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGrawHill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 Exhibits 1-5 to Bulger Declaration, # 2 Exhibit 6 to Bulger Declaration)(Keller, Bruce) (Entered: 02/11/2010)
955 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement. / Plaintiffs' Supplemental Memorandum Responding to Speciﬁc Objections. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Keller, Bruce) (Entered: 02/11/2010)
956 DECLARATION of Katherine Kinsella in Support re: 945 MOTION to Approve Amended Settlement Agreement / Notice of Motion for Final Approval of Amended Settlement Agreement.. Document ﬁled by Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc., Simon & Schuster, Inc., John Wiley & Sons, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Cunard, Jeffrey) (Entered: 02/12/2010)
957 MANDATE of USCA (Certiﬁed Copy) as to 756 Notice of Appeal ﬁled by Lewis Hyde, Harry Lewis USCA Case Number 09-4224-cv(con. Ordered that the appeal is DISMISSED. Catherine O'Hagan Wolfe, Clerk USCA. Certiﬁed: 2/19/2010. (nd) (Entered: 02/22/2010)
958 Objection [supplemental]. Document ﬁled by David Meininger. (Davis, John) (Entered: 02/24/2010)
959 NOTICE OF APPEARANCE by John W. Davis on behalf of David Meininger (Davis,

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John) (Entered: 02/24/2010)

02/25/2010

960 MANDATE of USCA (Certiﬁed Copy) as to 780 Amended Notice of Appeal, ﬁled by Picture Archive Council of America, Lou Jacobs, Jr, Peter Turner, North American Nature Photography Association, Dan Budnick, The American Society of Media Photographers, Inc., Joel Meyerowitz, Graphic Artists Guild, 752 Notice of Appeal, ﬁled by Picture Archive Council of America, Lou Jacobs, Jr, Peter Turner, North American Nature Photography Association, Dan Budnick, Joel Meyerowitz, The American Society of Media Photographers, Inc. USCA Case Number 09-4161. Insofar as no opposition has been ﬁled hereto, IT IS HEREBY ORDERED that the motion for voluntary Dismissal be, and it hereby is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 2/22/2010. (nd) (Entered: 02/25/2010)

03/09/2010

961 ENDORSED LETTER addressed to Judge Denny Chin from David Bolt dated 1/28/10 re: Canadian authors who are part of the proposed Author Sub Class object to the amended settlement in the Google Book Search Copyright Class Action. ENDORSEMENT: This letter is accepted for ﬁling as a timely objection. So Ordered. (Signed by Judge Denny Chin on 3/9/10) (dle) (Entered: 03/09/2010)

03/10/2010

962 TRANSCRIPT of proceedings held on 2/18/2010 before Judge Richard Owen. (jfe) (Entered: 03/10/2010)

03/10/2010

963 TRANSCRIPT of proceedings held on 2/18/2010 before Judge Denny Chin. (jfe) (Entered: 03/10/2010)

03/25/2010

964 MOTION for Paul D. Rothstein to Appear Pro Hac Vice. Document ﬁled by Darlene Marshall.(mro) (Entered: 03/26/2010)

03/30/2010

965 NOTICE OF APPEARANCE by Rachel Eve Schwartz on behalf of David Meininger (Schwartz, Rachel) (Entered: 03/30/2010)

04/02/2010

966 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 964 Motion for Paul D. Rothstein to Appear Pro Hac Vice. Paul D. Rothstein is admitted to practice pro hac vice as counsel for Objector Darlene Marshall in this action. (Signed by Judge Denny Chin on 4/2/2010) (tro) (Entered: 04/02/2010)

04/09/2010

CASHIERS OFFICE REMARK on 964 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 03/25/2010, Receipt Number 898543. (jd) (Entered: 04/09/2010)

04/09/2010

CASHIERS OFFICE REMARK on 964 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 03/25/2010, Receipt Number 898543. (jd) (Entered: 04/09/2010)

09/30/2010

967 MEMO ENDORSEMENT on re: 848 Motion to File Amicus Brief. ENDORSEMENT: The application was granted, as the brief was accepted and the Japan P.E.N. Club's lawyer was heard at the hearing. So Ordered. (Signed by Judge Denny Chin on 9/30/2010) (jfe) (Entered: 09/30/2010)

10/12/2010

968 TRANSCRIPT of proceedings held on February 18, 2010 at 10:10 am before Judge Denny Chin. (eef) (Entered: 10/13/2010)

01/11/2011

969 Letter from Edward R. Clark dated January 3, 2011 re: Please advise if the Court has approved the settlement in the above case. Considering the Fairness Hearing was conducted nearly a year ago, I'm suspicious that the Settlement Administrator, Rust Consulting, Inc. of Minneapolis, MN is not being honest, claiming the Court has not approved the settlement. (arc) (Entered: 01/25/2011)

02/18/2011

970 STIPULATION AND ORDER TO EXTEND CASH PAYMENT DEADLINE: The parties to the above-captioned case and to The McGraw-Hill Companies, Inc., et al. v. Google Inc., No. 05 CV 8881, by and through their undersigned counsel, hereby agree

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that the proposed Amended Settlement Agreement, dated November 13,2009, is amended as follows: (see order). (Signed by Judge Denny Chin on 2/18/2011) (jar) (Entered: 02/18/2011)
971 OPINION: #100080 In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, may of the concerns raised in the objections would be ameliorated if the ASA were converted from an "optout" settlement to an "opt-in" settlement. I urge the parties to consider revising the ASA accordingly. The motion for ﬁnal approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement. The motion for an award of attorneys' fees and costs is denied, without prejudice. The Court will hold a status conference on 4/25/2011, at 4:30 p.m. in Courtroom 11A of the Daniel Patrick Moynihan Courthouse. (Status Conference set for 4/25/2011 at 04:30 PM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge Denny Chin.) (Signed by Judge Denny Chin on 3/22/2011) (tro) Modiﬁed on 3/24/2011 (ajc). (Entered: 03/22/2011)
972 ORDER: The Court's Opinion, dated March 22, 2011, is hereby amended at pages 47 and 48 to list the appearance of counsel for the United States of America, as further set forth in this Order. (Signed by Judge Denny Chin on 3/24/2011) (mro) (Entered: 03/24/2011)
973 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - BILL OF COSTS (Petition to Preserve Claim For Incentive Award And Attorneys' Fees). Document ﬁled by Darlene Marshall.(Weiss, Matthew) Modiﬁed on 4/6/2011 (ka). (Entered: 04/05/2011)
***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Matthew Jay Weiss to MANUALLY RE-FILE Document No. 973 Petition. This document is not ﬁled via ECF. (ka) (Entered: 04/06/2011)
974 ENDORSED LETTER addressed to Judge Denny Chin from Bruce P. Keller dated 4/14/2011 re: The parties respectfully request that the upcoming status conference scheduled for 4/25/11 be rescheduled for 6/1/11 at 4 p.m. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge Denny Chin on 4/14/2011) (jfe) (Entered: 04/15/2011)
976 NOTICE of Filing Amended Certiﬁcate of Service. Document ﬁled by Darlene Marshall. (mbe) (Entered: 04/21/2011)
975 NOTICE of Compliance with the Clerk's 4/6/2011 Note to reﬁle document Manually. (mbe) (Entered: 04/18/2011)
Minute Entry for proceedings held before Judge Denny Chin: Status Conference held on 7/19/2011, ( Status Conference set for 9/15/2011 at 11:00 AM before Judge Denny Chin.). (mbe) (Entered: 07/20/2011)
977 NOTICE OF APPEARANCE by Ilaria Maggioni on behalf of Robert M. Kunstadt (Maggioni, Ilaria) (Entered: 07/26/2011)
978 BRIEF CITATION OF NEW AUTHORITY (SUPREME COURT'S WAL-MART OPINION ON CLASS ACTION CERTIFICATION). Document ﬁled by Robert M. Kunstadt.(Maggioni, Ilaria) (Entered: 07/26/2011)
979 TRANSCRIPT of Proceedings re: Conference held on 7/19/2011 before Judge Denny Chin. Court Reporter/Transcriber: Thomas Murray, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be

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obtained through PACER. Redaction Request due 8/25/2011. Redacted Transcript Deadline set for 9/5/2011. Release of Transcript Restriction set for 11/3/2011.(McGuirk, Kelly) (Entered: 08/01/2011)
980 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an ofﬁcial transcript of a Conference proceeding held on 7/19/11 has been ﬁled by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/01/2011)
981 ENDORSED LETTER addressed to Judge Denny Chin from Colin A. Underwood dated 9/12/2011 re: We write to inform the Court that, as a result of our ﬁrm's recent hiring of Julian Perlman from Mishcon de Reya New York LLP and Mr. Perlman's prior representation of plaintiffs in this litigation, our ﬁrm is in the process of being retained by the American Society of Media Photographers ("ASMP") as special counsel in connection with ASMP's claims against Google. ENDORSEMENT: The Court will address this issue at the conference tomorrow. (Signed by Judge Denny Chin on 9/14/2011) (lmb) (Entered: 09/14/2011)
Minute Entry for proceedings held before Judge Denny Chin: Status Conference held on 9/15/2011. All counsel present. Status Conference held. The parties have submitted a proposed scheduling order. The Court will adopt the proposed schedule and issue an order. (mro) (Entered: 09/16/2011)
Magistrate Judge Andrew J. Peck is so redesignated. (pgu) (Entered: 09/16/2011)
982 SCHEDULING ORDER: Any Motion to Amend the Third Amended Complaint by October 14, 2011. Plaintiffs' Class Certiﬁcation Motion by December 12, 2011. Defendants' Response Class Certiﬁcation Motion by January 26, 2012. Plaintiffs' Reply in further support of Class Certiﬁcation Motion by March 12, 2012. Motions for summary judgment due by 5/31/2012. Responses to summary judgment motion due by 7/9/2012 Reply in support of summary judgment due by 7/30/2012. Expert deposition from 5/14/12 through 5/25/2012. Merits discovery shall be completed by 3/30/2012. Oral Argument set for 9/6/2012 at 11:00 AM before Judge Denny Chin. (Signed by Judge Denny Chin on 9/16/2011) (jfe) (Entered: 09/16/2011)
983 TRANSCRIPT of Proceedings re: Conference held on 9/15/2011 before Judge Denny Chin. Court Reporter/Transcriber: Thomas Murray, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/17/2011. Redacted Transcript Deadline set for 10/27/2011. Release of Transcript Restriction set for 12/23/2011. (McGuirk, Kelly) (Entered: 09/21/2011)
984 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an ofﬁcial transcript of a Conference proceeding held on 9/15/2011 has been ﬁled by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/21/2011)
***DELETED DOCUMENT. Deleted document number 985 Transcript. The document was incorrectly ﬁled in this case. (tro) (Entered: 09/21/2011)

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985 FOURTH AMENDED CLASS ACTION COMPLAINT amending 782 Amended Complaint against Google Inc. with JURY DEMAND.Document ﬁled by Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, Herbert Mitgang, The Authors Guild. Related document: 782 Amended Complaint ﬁled by Canadian Standard Association, Simon & Schuster, Inc., Herbert Mitgang, John Wiley & Sons, Inc., Betty Miles, Association of American Publishers, Inc., Daniel Hoffman, The McGraw-Hill Companies, Inc., Pearson Education, Inc.(mro) (Entered: 10/17/2011)

10/20/2011

986 ENDORSED LETTER addressed to Judge Denny Chin from Joseph C. Gratz dated 10/18/2011 re: Counsel for both parties request that the Court permit Defendant to ﬁle its response to the complaint on or before 11/7/2011. ENDORSEMENT: Approved, but FINAL. SO ORDERED. (Signed by Judge Denny Chin on 10/20/2011) (ft) (Entered: 10/21/2011)

10/28/2011

987 ENDORSED LETTER addressed to Judge Denny Chin from Joseph C. Gratz dated 10/25/2011 re: Counsel for the defendant writes on behalf of all parties to request an extension of Defendants time to ﬁle its response to the complaint, until 11/28/2011. ENDORSEMENT: Application GRANTED. The deadline set forth in the Court's 9/16/11 Scheduling Order shall otherwise remain in place. SO ORDERED. (Signed by Judge Denny Chin on 10/28/2011) (ft) (Entered: 10/31/2011)

11/29/2011

988 SCHEDULING ORDER: IT IS HEREBY ORDERED as follows: The following deadlines shall apply: a. Defendant's motions to dismiss shall be ﬁled by December 23, 2011. b. Plaintiffs' oppositions to defendant's motions shall be ﬁled by January 23, 2012. c. Defendant's replies shall be ﬁled by February 3, 2012. The deadlines set forth in the Court's September 16, 2011 Scheduling Order shall remain in place. Motions due by 12/23/2011. Responses due by 1/23/2012. Replies due by 2/3/2012. (Signed by Judge Denny Chin on 11/28/2011) (rjm) (Entered: 11/29/2011)

12/12/2011

989 MOTION to Certify Class. Document ﬁled by Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, Herbert Mitgang, The Authors Guild. (Attachments: # 1 Text of Proposed Order)(Zack, Joanne) (Entered: 12/12/2011)

12/12/2011

990 MEMORANDUM OF LAW in Support re: 989 MOTION to Certify Class.. Document ﬁled by Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, Herbert Mitgang, The Authors Guild. (Zack, Joanne) (Entered: 12/12/2011)

12/12/2011

991 DECLARATION of Joanne Zack in Support re: 989 MOTION to Certify Class.. Document ﬁled by Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, Herbert Mitgang, The Authors Guild. (Attachments: # 1 Exhibit 1-12, # 2 Exhibit 13-23) (Zack, Joanne) (Entered: 12/12/2011)

12/22/2011

992 MOTION to Dismiss Fourth Amended Complaint. Document ﬁled by Google Inc.. Responses due by 1/23/2012(Gratz, Joseph) (Entered: 12/22/2011)

12/22/2011

993 MEMORANDUM OF LAW in Support re: 992 MOTION to Dismiss Fourth Amended Complaint.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 12/22/2011)

12/22/2011

994 NOTICE of Request for Judicial Notice in Support of Motion to Dismiss Fourth Amended Complaint re: 992 MOTION to Dismiss Fourth Amended Complaint.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gratz, Joseph) (Entered: 12/22/2011)

01/17/2012

995 STIPULATION AND ORDER FOR WITHDRAWAL OF HERBERT MITGANG, DANIEL HOFFMAN, AND PAUL DICKSON AS REPRESENTATIVE PLAINTIFFS: All claims of representative plaintiffs Herbert Mitgang, Daniel Hoffman, and Paul Dickson are voluntarily dismissed. The dismissals are without prejudice, and Herbert Mitgang, Daniel Hoffman, and Paul Dickson retain all right as members of the putative

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class in this action. The foregoing is without costs, disbursements, or counsel fees to any party. Herbert Mitgang, Paul Dickson and Daniel Hoffman terminated. (Signed by Judge Denny Chin on 1/17/2012) (ft) (Entered: 01/17/2012)

01/17/2012

996 SCHEDULING ORDER: The following deadlines shall apply: a. Plaintiffs' opposition to defendant's motion to dismiss shall be ﬁled by 2/6/2012; b. Defendant's response to the class certiﬁcation motion shall be ﬁled by 2/8/2012; c. Defendant's reply in support of its motion to dismiss shall be ﬁled by 2/17/2012; d. Plaintiffs' reply in support of their class certiﬁcation motion shall be ﬁled by 4/3/2012; e. Fact discovery shall be completed by 4/13/2012. The remaining deadlines set forth in the Court's 9/16/2011 Scheduling Order shall remain in place. (Signed by Judge Denny Chin on 1/17/2012) (ft) (Entered: 01/17/2012)

02/06/2012

997 MEMORANDUM OF LAW in Opposition re: 992 MOTION to Dismiss Fourth Amended Complaint.. Document ﬁled by The Authors Guild. (Zack, Joanne) (Entered: 02/06/2012)

02/08/2012

998 MOTION for Amin Kassam and Andrew DeVore to Withdraw as Attorney. Document ﬁled by Arlo Guthrie, Catherine Ryan Hyde, Eugene Linden, Julia Wright.(Kassam, Amin) (Entered: 02/08/2012)

02/08/2012

999 DECLARATION of Amin Kassam in Support re: 998 MOTION for Amin Kassam and Andrew DeVore to Withdraw as Attorney.. Document ﬁled by Arlo Guthrie, Catherine Ryan Hyde, Eugene Linden, Julia Wright. (Kassam, Amin) (Entered: 02/08/2012)

02/08/2012 1000 MEMORANDUM OF LAW in Opposition re: 989 MOTION to Certify Class.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 02/08/2012)

02/08/2012

1001

DECLARATION of Hal Poret in Opposition re: 989 MOTION to Certify Class.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E, # 7 Appendix F)(Gratz, Joseph) (Entered: 02/08/2012)

02/08/2012 1002 DECLARATION of E. Gabriel Perle in Opposition re: 989 MOTION to Certify Class.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 02/08/2012)

02/08/2012

1003

DECLARATION of Joseph C. Gratz in Opposition re: 989 MOTION to Certify Class.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10A, # 11 Exhibit 10B, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16)(Gratz, Joseph) (Entered: 02/08/2012)

02/08/2012 1004 DECLARATION of Daniel Clancy in Opposition re: 989 MOTION to Certify Class.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 02/08/2012)

02/17/2012

1005 REPLY MEMORANDUM OF LAW in Support re: 992 MOTION to Dismiss Fourth Amended Complaint.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 02/17/2012)

03/27/2012

1006

MEMO ENDORSEMENT on 998 MOTION FOR LEAVE TO WITHDRAW APPEARANCE: Motion GRANTED. DeVore and DeMarco, LLP, is hereby RELIEVED as counsel for the class members listed above. ***Attorney Andrew C. DeVore and Amin S. Kassam terminated. (Signed by Judge Denny Chin on 3/26/2012) (ab) (Entered: 03/27/2012)

03/28/2012

1007

SCHEDULING ORDER: At the request of the parties Opening expert reports shall be ﬁled by May 4, 2012. b. Rebuttal expert reports shall be ﬁled by May 24, 2012. c. Expert depositions shall be completed between May 28, 2012 to June 8,2012.d.Motions for Summary Judgment shall be ﬁled by June 14, 2012. e. Oppositions to Motions for

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Summary Judgment shall be ﬁled by July 23, 2012. f. Replies in Support of Motions for Summary Judgment shall be ﬁled by August 13, 2012. Motions due by 6/14/2012. Responses due by 7/23/2012 Replies due by 8/13/2012. (Signed by Judge Denny Chin on 3/27/2012) (js) (Entered: 03/28/2012)

1008 REPLY MEMORANDUM OF LAW in Support re: 989 MOTION to Certify Class.. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles. (Zack, Joanne) (Entered: 04/03/2012)

1009 DECLARATION of Joanne Zack in Support re: 989 MOTION to Certify Class.. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles. (Zack, Joanne) (Entered: 04/03/2012)

1010

DECLARATION of Joanne Zack in Support re: 989 MOTION to Certify Class.. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles. (Attachments: # 1 Exhibit 1-3, # 2 Exhibit 4-8, # 3 Exhibit 9-12, # 4 Exhibit 13-14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17-18)(Zack, Joanne) (Entered: 04/03/2012)

1011 MOTION for Genevieve Rosloff to Appear Pro Hac Vice. Document ﬁled by Google Inc..(bwa) (Entered: 04/11/2012)

1012 MOTION for David F. McGowan to Appear Pro Hac Vice. Document ﬁled by Google Inc..(bwa) (Entered: 04/11/2012)

1013

ORDER FOR ADMISSION PRO HAC VICE FOR GENEVIEVE ROSLOFF granting 1011 Motion for Genevieve Rosloff to Appear Pro Hac Vice. (Signed by USCJ Denny Chin By Designation on 4/5/2012) (rjm) Modiﬁed on 4/11/2012 (rjm). (Entered: 04/11/2012)

1014 ORDER FOR ADMISSION PRO HAC VICE FOR DAVID F. MCGOWAN granting 1012 Motion for David F. McGowan to Appear Pro Hac Vice. (Signed by USCJ Denny Chin By Designation on 4/4/2012) (rjm) (Entered: 04/11/2012)

1015

ORDER. The Court is in receipt of letters from Google and the Authors Guild plaintiffs, both dated April 12, 2012. Google's request for leave to ﬁle a surreply is denied. Its request for an order compelling Mr. Edelman and Mr. Gervais to appear for depositions within the next two weeks is also denied, as expert depositions are scheduled for May 28th to June 8, 2012. Google's objection to the inclusion of expert reports in the Authors Guild plaintiffs' reply brief is noted and can be addressed at oral argument. The motions to dismiss (in both cases) and the motion for class certiﬁcation (in The Authors Guild case) having been fully submitted[ the Court will hold oral argument on these motions on May 3, 2012 at 10:00 AM. (Oral Argument set for 5/3/2012 at 10:00 AM before Judge Denny Chin.) (Signed by U.S. Circuit Judge Denny Chin Sitting by Designation on 4/16/2012) (rjm) Modiﬁed on 4/16/2012 (rjm). (Entered: 04/16/2012)

CASHIERS OFFICE REMARK on 1012 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 04/05/2012, Receipt Number 1034548. (jd) (Entered: 04/24/2012)

CASHIERS OFFICE REMARK on 1011 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 04/05/2012, Receipt Number 1034585. (jd) (Entered: 04/24/2012)

Minute Entry for proceedings held before Judge Denny Chin: Motion Hearing held on 5/3/2012. Case called for motion argument on Defendants motions to dismiss 1st amended complaint (in both cases) and Plaintiffs motion for class certiﬁcation in the Authors Guild case- 05 cv 8136. Motions argued; decision reserved. (cd) (Entered: 05/04/2012)

1016 SEALED DOCUMENT placed in vault.(mps) (Entered: 05/15/2012)

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ORDER: Plaintiffs are permitted to ﬁle under seal a Reply Declaration in Support of Plaintiffs Motion for Class Certiﬁcation (Conﬁdential Portion). A public Reply Declaration in Support of Plaintiffs Motion for Class Certiﬁcation has already been ﬁled, but does not contain the conﬁdential pages to be ﬁled under seal. (Signed by Judge Denny Chin on 5/14/2012) (js) (Entered: 05/15/2012)

05/16/2012 1018 SEALED DOCUMENT placed in vault.(nm) (Entered: 05/16/2012)

05/17/2012

1019

TRANSCRIPT of Proceedings re: ARGUMENT held on 5/3/2012 before Judge Denny Chin. Court Reporter/Transcriber: Linda Fisher, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/11/2012. Redacted Transcript Deadline set for 6/21/2012. Release of Transcript Restriction set for 8/20/2012. (McGuirk, Kelly) (Entered: 05/17/2012)

05/17/2012

1020

NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an ofﬁcial transcript of a ARGUMENT proceeding held on 5/3/12 has been ﬁled by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/17/2012)

05/18/2012 1021 NOTICE of Supplemental Authority. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A)(Gratz, Joseph) (Entered: 05/18/2012)

05/30/2012

1022 RESPONSE re: 1021 Notice (Other) of Supplemental Authority. Document ﬁled by Joseph Goulden, Betty Miles, The Authors Guild, Jim Bouton. (Zack, Joanne) (Entered: 05/30/2012)

05/31/2012

1023

OPINION # 101856. For the reasons stated above, Google's motions to dismiss the claims of the associational plaintiffs are denied and the AG Representative Plaintiffs' motion for class certiﬁcation is granted. Re: 989 MOTION to Certify Class ﬁled by Betty Miles, The Authors Guild, Joseph Goulden, Paul Dickson, Herbert Mitgang, Daniel Hoffman, 992 MOTION to Dismiss Fourth Amended Complaint ﬁled by Google Inc. (Signed by U.S. Circuit Judge Denny Chin Sitting by Designation on 5/31/2012) (rjm) Modiﬁed on 5/31/2012 (rjm). Modiﬁed on 6/1/2012 (ft). (Entered: 05/31/2012)

05/31/2012

1025 INTERNET CITATION NOTE: Material from decision with Internet citation re: 1023 Memorandum & Opinion. (Attachments: # 1 U.S. Copyright Ofﬁce - Search Copyright Records) (tro) (Entered: 06/11/2012)

06/01/2012

1024

ENDORSED LETTER addressed to Judge Denny Chin from Joanne Zack and Joseph C. Gratz dated 5/23/2012 re: We write regarding three matters related to the upcoming brieﬁng on the parties' contemplated motions for summary judgment. ENDORSEMENT: Redactions are to be kept to a minimum. Approved. SO ORDERED. (Signed by Judge Denny Chin on 6/01/2012) (ama) Modiﬁed on 6/7/2012 (ama). (Entered: 06/01/2012)

06/11/2012

1026

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION: It is hereby Ordered that the Class is certiﬁed, deﬁned as set forth within this Order. Betty Miles, Joseph Goulden, and Jim Bouton are designated as Representative Plaintiffs for the Class. Boni & Zack LLC is appointed Lead Counsel, and Milberg LLP and Kohn, Swift & Graf, P.C. are appointed Class Counsel. (Signed by Judge Denny Chin, Sitting by designation on 6/11/2012) (jfe) (Entered: 06/11/2012)

06/14/2012 1027 ANSWER to 985 Amended Complaint,, with JURY DEMAND. Document ﬁled by Google Inc..(Gratz, Joseph) (Entered: 06/14/2012)

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1028

SCHEDULING ORDER: Motions for summary judgment due by 7/27/2012. Responses due by 8/24/2012 Replies due by 9/17/2012. Oral Argument set for 10/9/2012 at 10:00 AM before Judge Denny Chin. (Signed by Judge Denny Chin on 6/19/2012) (cd) (Entered: 06/19/2012)

1029 MOTION for Jennifer M. Urban to Appear Pro Hac Vice. Document ﬁled by Digital Humanities Scholars and Law Professors.(pgu) (Entered: 07/23/2012)

CASHIERS OFFICE REMARK on 1029 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 07/20/2012, Receipt Number 1044226. (jd) (Entered: 07/24/2012)

1030 MOTION for Babak Siavoshy to Appear Pro Hac Vice. Document ﬁled by Digital Humanities Scholars and Law Professors.(pgu) (Entered: 07/25/2012)

CASHIERS OFFICE REMARK on 1030 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 07/25/2012, Receipt Number 1044640. (jd) (Entered: 07/25/2012)

1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication. Document ﬁled by Google Inc..(Gratz, Joseph) (Entered: 07/27/2012)

1032

MEMORANDUM OF LAW in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 07/27/2012)

1033

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU MEMORANDUM OF LAW in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication. Local Rule 56.1 Statement of Uncontested Facts in Support of Defendant Google Inc.'s Motion for Summary Adjudication or in the Alternative for Summary Judgment. Document ﬁled by Google Inc.. (Gratz, Joseph) Modiﬁed on 7/27/2012 (db). (Entered: 07/27/2012)

1034

DECLARATION of Judith A. Chevalier in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A)(Gratz, Joseph) (Entered: 07/27/2012)

1035

DECLARATION of Dan Clancy in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Gratz, Joseph) (Entered: 07/27/2012)

1036

DECLARATION of Joseph C. Gratz in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Gratz, Joseph) (Entered: 07/27/2012)

1037

DECLARATION of Albert N. Greco in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A, part 1, # 2 Exhibit A, part 2)(Gratz, Joseph) (Entered: 07/27/2012)

1038 DECLARATION of Kurt Groetsch in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the

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Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 07/27/2012)

07/27/2012

1039

DECLARATION of Bruce S. Harris in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2)(Gratz, Joseph) (Entered: 07/27/2012)

07/27/2012

1040

DECLARATION of Brad Hasegawa in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 07/27/2012)

07/27/2012

1041

DECLARATION of Stephane Jaskiewicz in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 07/27/2012)

07/27/2012

1042

DECLARATION of Gloriana St. Clair in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit A)(Gratz, Joseph) (Entered: 07/27/2012)

07/27/2012

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Note to Attorney Joseph C. Gratz to RE-FILE Document 1033 Memorandum of Law in Support of Motion. Use the event type Rule 56.1 Statement found under the event list Other Answers. (db) (Entered: 07/27/2012)

07/27/2012 1043 RULE 56.1 STATEMENT. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 07/27/2012)

07/27/2012 1044 SEALED DOCUMENT placed in vault.(nm) (Entered: 07/27/2012)

07/31/2012

1045 ORDER granting 1029 Motion for Jennifer M. Urban to Appear Pro Hac Vice. Upon payment to the Clerk of the Court of the applicable fee.(Signed by Judge Denny Chin on 7/31/2012) (ama) Modiﬁed on 7/31/2012 (ama). (Entered: 07/31/2012)

07/31/2012

1046 ORDER granting 1030 Motion for Babak Siavoshy to Appear Pro Hac Vice. Upon payment to the Clerk of the Court of the applicable fee.(Signed by Judge Denny Chin on 7/31/2012) (ama) (Entered: 07/31/2012)

08/01/2012

1047

MOTION for Leave to File Amici Curiae Brief in Support of Defendant's Motion for Summary Judgment. Document ﬁled by America Library Association, Assocation of Research Libraries, Association of College and Research Libraries, Electronic Frontier Foundation et al..(Band, Jonathan) (Entered: 08/01/2012)

08/01/2012

1048

BRIEF re: 1047 MOTION for Leave to File Amici Curiae Brief in Support of Defendant's Motion for Summary Judgment.. Document ﬁled by America Library Association, Assocation of Research Libraries, Association of College and Research Libraries, Electronic Frontier Foundation et al..(Band, Jonathan) (Entered: 08/01/2012)

08/03/2012

1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version). Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild.(Zack, Joanne) (Entered: 08/03/2012)

08/03/2012

1050

MEMORANDUM OF LAW in Support re: 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version). (Redacted). Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Zack, Joanne) (Entered: 08/03/2012)

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MOTION to File Amicus Brief IN PARTIAL SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION. Document ﬁled by Digital Humanities Scholars and Law Professors. (Siavoshy, Babak) (Entered: 08/03/2012)

08/03/2012

1052

BRIEF re: 1051 MOTION to File Amicus Brief IN PARTIAL SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION.. Document ﬁled by Digital Humanities Scholars and Law Professors.(Siavoshy, Babak) (Entered: 08/03/2012)

08/03/2012

1053

DECLARATION of Joanne Zack in Support re: 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version).. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Attachments: # 1 Exhibit 1-22, # 2 Exhibit 23, part 1, # 3 Exhibit 23, part 2, # 4 Exhibit 24-32, # 5 Exhibit 33-35, # 6 Exhibit 36-37, # 7 Exhibit 38-41, # 8 Exhibit 42, part 1, # 9 Exhibit 42, part 2-43)(Zack, Joanne) (Entered: 08/03/2012)

08/03/2012 1054 RULE 56.1 STATEMENT. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Zack, Joanne) (Entered: 08/03/2012)

08/03/2012

1055

BRIEF re: 1051 MOTION to File Amicus Brief IN PARTIAL SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION. (CORRECTED). Document ﬁled by Digital Humanities Scholars and Law Professors.(Siavoshy, Babak) (Entered: 08/03/2012)

08/09/2012

1056

MEMORANDUM OF LAW in Opposition re: 1051 MOTION to File Amicus Brief IN PARTIAL SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION., 1047 MOTION for Leave to File Amici Curiae Brief in Support of Defendant's Motion for Summary Judgment. Plaintiffs' Memorandum in Opposition to Motions for Leave to File Amicus Brief. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Boni, Michael) (Entered: 08/09/2012)

08/14/2012

1057

TRUE COPY ORDER of USCA USCA Case Number 12-2402. Petitioner, through counsel, moves, pursuant to Federal Rule of Civil Procedure 23(f), for leave to appeal the District Court's order granting Respondents' motion for class certiﬁcation. Upon due consideration, it is hereby ORDERED that the petition is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certiﬁed: 08/14/2012. New Case No. 12-3200. (nd) Modiﬁed on 8/28/2012 (nd). (Entered: 08/14/2012)

08/14/2012

Appeal Fee Due: for 1057 USCA Order granting leave to appeal. $455.00 Appeal fee due by 8/28/2012. (nd) (Entered: 08/14/2012)

08/14/2012

1058

REPLY to Response to Motion re: 1047 MOTION for Leave to File Amici Curiae Brief in Support of Defendant's Motion for Summary Judgment.. Document ﬁled by America Library Association, Assocation of Research Libraries, Association of College and Research Libraries, Electronic Frontier Foundation et al.. (Band, Jonathan) (Entered: 08/14/2012)

08/15/2012

1059

REPLY MEMORANDUM OF LAW in Support re: 1051 MOTION to File Amicus Brief IN PARTIAL SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION.. Document ﬁled by Digital Humanities Scholars and Law Professors. (Siavoshy, Babak) (Entered: 08/15/2012)

08/15/2012

1060

ORDER granting 1047 Motion for Leave to File Document; granting 1051 Motion to File Amicus Brief. It is hereby ordered as follows: (1) The motions for leave to ﬁle amici curiae briefs are granted, and the proposed briefs are accepted for ﬁling. (2) Plaintiffs shall respond to the amici curiae briefs by September 17, 2012 in a

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memorandum of law not to exceed 40 pages. (3) The amici curiae may not ﬁle replies. (4) The parties' oppositions to the cross-motions for summary judgment shall be ﬁled by August 24, 2012. (5) The parties' replies in support of the cross-motions for summary judgment shall be ﬁled by September 17, 2012. (6) Oral argument on the motions for summary judgment shall proceed on October 9, 2012 at 10 AM.. (Signed by Judge Denny Chin on 8/15/2012) (jfe) (Entered: 08/15/2012)

Set/Reset Deadlines: ( Responses due by 9/17/2012), Set/Reset Hearings:( Oral Argument set for 10/9/2012 at 10:00 AM before Judge Denny Chin.) (jfe) (Entered: 08/15/2012)

Set/Reset Deadlines as to 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version)., 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Responses due by 8/24/2012 (jfe) (Entered: 08/15/2012)

1061

ORDER: It is hereby ordered as follows: (1) By October 24, 2012, the parties shall ﬁle their oppositions to the cross-motions for summary judgment. (2) By November 19, 2012, plaintiffs shall ﬁle their opposition to the amici curiae briefs, in a memorandum of law not to exceed 40 pages. (3) By November 19, 2012, the parties shall ﬁle their replies in support of the cross-motions for summary judgment. (4) Oral argument on the motions for summary judgment shall proceed on December 4, 2012 at 2PM., ( Responses due by 11/19/2012., Replies due by 11/19/2012.), ( Oral Argument set for 12/4/2012 at 02:00 PM before Judge Denny Chin.) (Signed by Judge Denny Chin on 8/17/2012) (lmb) (Entered: 08/17/2012)

USCA Appeal Fees received $ 455.00 receipt number 465401046514 on 08/16/2012 re: 1057 USCA Order granting leave to appeal pursuant to FRAP 23(f). (nd) (Entered: 08/28/2012)

1062

ORDER: The Court is in receipt of a letter from defendant Google, Inc. ("Google"), dated August 17, 2012, requesting that the Court stay all proceedings in this case pending review by the Second Circuit of this Court's May 31, 2012 Order granting class certiﬁcation (the "Class Certiﬁcation Order"). Plaintiffs have not responded to Google's letter. For the following reasons, the application is denied as further set forth in this order. (Signed by Judge Denny Chin on 8/28/2012) (lmb) (Entered: 08/29/2012)

1063

ORDER of USCA (Certiﬁed Copy) USCA Case Number 12-3200. Appellant Google, Inc. has ﬁled a motion to stay District Court proceedings pending appeal of the class certiﬁcation order and appellees have ﬁled a response stating that they consent to the stay, although not to the arguments put forward in the motion as to why Google expects to prevail on appeal. IT IS HEREBY ORDERED that the motion to stay proceedings pending appeal is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Order: 09/17/2012. Certiﬁed: 09/17/2012. (nd) (Entered: 09/17/2012)

1064

NOTICE OF CHANGE OF ADDRESS by Cindy A. Cohn on behalf of Electronic Frontier Foundation et al.. New Address: Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA, USA 94109, 415-436-9333. (Cohn, Cindy) (Entered: 04/07/2013)

1065

TRUE COPY ORDER of USCA USCA Case Number 12-3200-cv. For the reasons stated, we VACATE the June 11, 2012 order of the District Court certifying plaintiffs proposed class and REMAND the cause to the District Court for consideration of the fair use issues, without prejudice to any renewal of the motion for class certiﬁcation before the District Court following its decision on the fair use defense. In the interest of judicial economy, any further appeal from the decisions of the District Court shall be assigned to

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1066

MANDATE of USCA (Certiﬁed Copy) USCA Case Number 12-3200-cv. Ordered, Adjudged and Decreed that the order of the District Court is VACATED and the case is REMANDED in accordance with the opinion of this Court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 07/01/2013. (nd) (Entered: 07/01/2013)

1067

ORDER: By August 5, 2013, the parties shall ﬁle their oppositions to the cross-motions for summary judgment. The parties shall include any arguments in response to the amici curiae briefs in their memoranda in opposition to the cross-motions. The parties' memoranda of law shall not exceed 50 pages, including any response to the amici curiae briefs. By August 19, 2013, in memoranda of law not to exceed 10 pages, the parties shall ﬁle their replies in support of the cross-motions for summary judgment. Oral argument on the cross-motions for summary judgment will be heard on September 5, 2013 at 10:00 AM. Responses due by 8/5/2013. Replies due by 8/19/2013. Oral Argument set for 9/5/2013 at 10:00 AM before Judge Denny Chin. (Signed by Judge Denny Chin Sitting by Designation on 7/1/2013) (ft) Modiﬁed on 7/12/2013 (ft). (Entered: 07/01/2013)

1068

ORDER: The brieﬁng schedule for the parties' cross-motions for summary judgment is hereby modiﬁed as follows: (1) By August 26, 2013, the parties shall ﬁle their oppositions to the cross-motions for summary judgment. The parties shall include any arguments in response to the amici curiae briefs in their memoranda in opposition to the cross-motions. The parties' memoranda of law shall not exceed 50 pages, including any response to the amici curiae briefs. (2) By September 9, 2013, in memoranda of law not to exceed 20 pages, the parties shall ﬁle their replies in support of the cross-motions for summary judgment. (3) Oral argument on the cross-motions for summary judgment will be heard on September 23, 2013 at 2:30 PM. SO ORDERED. (Responses due by 8/26/2013, Replies due by 9/9/2013.), ( Oral Argument set for 9/23/2013 at 02:30 PM before Judge Denny Chin.) (Signed by Judge Denny Chin Sitting by Designation on 7/8/2013) (rsh) (Entered: 07/09/2013)

1069

ENDORSED LETTER addressed to Judge Denny Chin, from Michael J. Boni, dated 8/23/2013, re: on behalf of all parties, plaintiffs and Google, to request that the parties be able to ﬁle their respective, non-public sealed versions of their briefs on Tuesday, August 27, 2013. The deadline to ﬁle their summary judgment opposition briefs is a day earlier, and on that date (August 26) the parties will ﬁle electronically their public, redacted versions of the brief, and will also serve one another with their undredacted versions as well. ENDORSEMENT: Approved. SO ORDERED. (Brief due by 8/27/2013.) (Signed by Judge Denny Chin on 8/26/2013) (ja) (Entered: 08/26/2013)

1070

MEMORANDUM OF LAW in Opposition re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Boni, Michael) (Entered: 08/26/2013)

1071 COUNTER STATEMENT TO 1043 Rule 56.1 Statement. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Boni, Michael) (Entered: 08/26/2013)

1072

MEMORANDUM OF LAW in Opposition re: 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version). Defendant Google Inc.'s Opposition to Plaintiffs' Motion for Partial Summary Judgment. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 08/26/2013)

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1073

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DECLARATION of of Michael J. Boni in Opposition re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Attachments: # 1 Exhibit 1 (Part 1 of 3), # 2 Exhibit 1 (Part 2 of 3), # 3 Exhibit 1 (Part 3 of 3), # 4 Exhibit 2 (Part 1 of 3), # 5 Exhibit 2 (Part 2 of3), # 6 Exhibit 2 (Part 3 of 3), # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10)(Boni, Michael) (Entered: 08/26/2013)

1074

DECLARATION of Paul Aiken in Opposition re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Boni, Michael) (Entered: 08/26/2013)

1075

DECLARATION of Joseph C. Gratz in Opposition re: 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version).. Document ﬁled by Google Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Gratz, Joseph) (Entered: 08/26/2013)

1076 DECLARATION of Scott Dougall in Opposition re: 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version).. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 08/26/2013)

1077 COUNTER STATEMENT TO 1054 Rule 56.1 Statement. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 08/26/2013)

1078

AFFIDAVIT OF SERVICE of Google Inc.'s Responses and Objections to Plaintiffs' Statement of Undisputed Facts in Support of their Motion for Partial Summary Judgment (provisionally ﬁled under seal) served on Michael J. Boni and Joanne E. Zack, Counsel for Plaintiffs on August 26, 2103. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 08/26/2013)

1079 SEALED DOCUMENT placed in vault.(mps) (Entered: 08/27/2013)

1080 SEALED DOCUMENT placed in vault.(nm) (Entered: 08/27/2013)

1081

ORDER: The Court is in receipt of a letter from plaintiffs' counsel, dated August 28, 2013, requesting a two-week extension of the schedule for brieﬁng and argument of the parties' summary judgment motions. Defendant Google, Inc. opposes this request. The request is granted in part and denied in part, as follows: The deadline for plaintiffs to submit their reply brief is extended to Monday, September 16, 2013. The request for adjournment of oral argument is denied. The date of September 23, 2013 was set on July 8, 2013, more than ﬁve weeks ago. The Court will not adjourn oral argument because new counsel in this eight-year old litigation is unavailable on September 23rd because he will be attending a conference on copyright law. (Replies due by 9/16/2013.) (Signed by Judge Denny Chin, Sitting by Designation on 8/29/2013) (ja) (Entered: 08/29/2013)

1082 NOTICE OF APPEARANCE by Edward Henry Rosenthal on behalf of The Authors Guild. (Rosenthal, Edward) (Entered: 09/04/2013)

1083 NOTICE OF APPEARANCE by Jeremy Seth Goldman on behalf of The Authors Guild. (Goldman, Jeremy) (Entered: 09/04/2013)

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1084

SDNY CM/ECF Version 6.1.1
REPLY MEMORANDUM OF LAW in Support re: 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication.. Document ﬁled by Google Inc.. (Gratz, Joseph) (Entered: 09/09/2013)

1085

REPLY MEMORANDUM OF LAW in Support re: 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version).. Document ﬁled by Jim Bouton, Joseph Goulden, Betty Miles, The Authors Guild. (Boni, Michael) (Entered: 09/16/2013)

1086

TRANSCRIPT of Proceedings re: ARGUMENT held on 9/23/2013 before Judge Denny Chin. Court Reporter/Transcriber: Thomas Murray, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/28/2013. Redacted Transcript Deadline set for 11/7/2013. Release of Transcript Restriction set for 1/4/2014. (Rodriguez, Somari) (Entered: 10/03/2013)

1087

NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an ofﬁcial transcript of a ARGUMENT proceeding held on 9/23/13 has been ﬁled by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 10/03/2013)

1088

OPINION re: #103753 1031 MOTION for Summary Judgment Notice of Defendant Google Inc.'s Motion for Summary Judgment or in the Alternative Summary Adjudication ﬁled by Google Inc., 1049 MOTION for Summary Judgment Plaintiffs' Notice of Motion for Partial Summary Judgment (Public Version) ﬁled by Betty Miles, The Authors Guild, Joseph Goulden, Jim Bouton. For the reasons set forth in this Opinion, plaintiffs' motion for partial summary judgment is denied and Google's motion for summary judgment is granted. Judgment will be entered in favor of Google dismissing the Complaint. Google shall submit a proposed judgment, on notice, within ﬁve business days hereof. (Signed by Judge Denny Chin on 11/14/2013) (tro) (Main Document 1088 replaced on 11/14/2013) (tro). Modiﬁed on 11/19/2013 (ca). (Entered: 11/14/2013)

1093 INTERNET CITATION NOTE: Material from decision with Internet citation re: 1088 Memorandum & Opinion. (fk) (Entered: 06/10/2014)

1089

JUDGMENT that, 1. Plaintiffs' Motion for Partial Summary Judgment is denied; 2. Defendant's Motion for Summary Judgment is granted; 3. Plaintiffs' claims are dismissed with prejudice; 4. Costs in this action are awarded to Defendant, as the prevailing party in this action; and 5. Any application for attorneys' must be made within 14 days after entry of judgment pursuant to Fed. R. Civ. P. 54(d)(2)(B)(i). (Signed by Circuit Judge Denny Chin on 11/27/13) (Attachments: # 1 Notice of Right to Appeal) (ml) (Entered: 11/27/2013)

Terminate Transcript Deadlines (ml) (Entered: 11/27/2013)

1090 FILING ERROR - DEFICIENT DOCKET ENTRY - FIRST MOTION for Attorney Fees. Document ﬁled by Writers' Representatives LLC.(Chu, Lynn) Modiﬁed on 12/9/2013 (db). (Entered: 12/06/2013)

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Lynn T. Chu to RE-FILE Document 1090

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FIRST MOTION for Attorney Fees. ERROR(S): No Signature or s/. (db) (Entered: 12/09/2013)

1091

AMENDED JUDGMENT amending 1089 Judgment, that, 1. Plaintiffs' Motion for Partial Summary Judgment is denied; 2. Defendant's Motion for Summary Judgment is granted; 3. Plaintiffs' claims are dismissed with prejudice; 4. Costs in this action are awarded to Defendant, as the prevailing party in this action; and 5. Any application for attorneys' fees must be made within 14 days of the ﬁnal resolution of all appeals or, if no appeal is taken, within 14 days after the expiration of time for ﬁling a notice of appeal; 6. The Clerk of the Court shall close this case. (Signed by Judge Denny Chin on 12/10/13) (Attachments: # 1 Notice of Right to Appeal)(ml) (Entered: 12/11/2013)

1092

NOTICE OF APPEAL from 1091 Amended Judgment,, 1089 Judgment,,. Document ﬁled by Association of American Publishers, Inc., Jim Bouton, Canadian Standard Association, Paul Dickson, John Wiley & Sons, Inc., Herbert Mitgang, Pearson Education, Inc., The Authors Guild, The McGraw-Hill Companies, Inc.. Filing fee $ 505.00, receipt number 0208-9204161. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Rosenthal, Edward) (Entered: 12/23/2013)

Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 1092 Notice of Appeal,. (nd) (Entered: 12/23/2013)

Appeal Record Sent to USCA (Electronic File). Certiﬁed Indexed record on Appeal Electronic Files ONLY for 1092 Notice of Appeal, ﬁled by The Authors Guild, Canadian Standard Association, Herbert Mitgang, Jim Bouton, John Wiley & Sons, Inc., Paul Dickson, Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc. were transmitted to the U.S. Court of Appeals. (APPELLANT'S COUNSEL IS RESPONSIBLE FOR THE PHYSICAL SUPPLEMENTAL INDEX FOR ANY AND ALL NON-ECF DOCUMENTS, ONCE THE CASE IS OPENED IN THE SECOND CIRCUIT) (nd) (Entered: 12/23/2013)

1094

MANDATE of USCA (Certiﬁed Copy) as to 1092 Notice of Appeal, ﬁled by The Authors Guild, Canadian Standard Association, Herbert Mitgang, Jim Bouton, John Wiley & Sons, Inc., Paul Dickson, Association of American Publishers, Inc., The McGraw-Hill Companies, Inc., Pearson Education, Inc. USCA Case Number 13-4829. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/17/2015. (nd) (Entered: 11/18/2015)

PACER Service Center
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11/04/2017 18:54:32

PACER Login: hs0328:2563377:0 Client Code:

Description: Docket Report Search Criteria: 1:05-cv-08136-DC

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