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Edward H. Rosenthal Jeremy S. Goldman FRANKFURT KURNIT KLEIN & SELZ, P.C. 488 Madison Avenue New York, New York 10022 Tel.: (212) 980-0120 Fax: (212) 593-9175 erosenthal@fkks.com jgoldman@fkks.com

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Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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THE AUTHORS GUILD, INC., THE AUSTRALIAN SOCIETY OF AUTHORS LIMITED, UNION DES ECRIVAINES ET DES ECRIVAINS QUEBECOIS, PAT CUMMINGS, ANGELO LOUKAKIS, RO)(ANA ROBINSON, ANDRE ROY, JAMES SHAPIRO, DANIELE SIMPSON, TJ. STILES and FAY WELDON,:
Plaintiffs,
- against -
HATHITRUST, THE REGENTS OF THE UNIVERSITY OF MICHIGAN, THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, THE TRUSTEES OF INDIANA UNIVERSITY and CORNELL UNIVERSITY,
Defendants.

Civ. No. COMPLAINT

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Plaintiffs The Authors Guild, Inc., The Australian Society of Authors Limited, UNEQ (Union Des Ecrivaines et des Ecrivains Quebecois), Pat Cummings, Angelo Loukakis, Roxana Robinson, Andre Roy, James Shapiro, Daniele Simpson, TJ. Stiles and Fay Weldon (collectively, "Plaintiffs"), by and through their attorneys, Frankfurt Kumit Klein & Selz, P.c., for their complaint against defendants HathiTrust, the Regents of the University of Michigan, the

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Regents of the University of California, the Board of Regents of the University of Wisconsin System, the Trustees oflndiana University and Cornell University (collectively, "Defendants") allege as follows:
NATURE OF THE ACTION I. This is an action for prospective injunctive and declaratory relief arising from the systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works, including books whose copyrights are held by Plaintiffs, by five universities (each, a "University" and collectively, the "Universities") and HathiTrust, a partnership between the Universities and other institutions. Through cooperation agreements entered into with Google Inc. ("Google"), Defendants have engaged in an unprecedented effort to "digitize" - or to create digital copies of- all or a significant portion of the works in their libraries without the permission of their authors or other copyright holders. 2. In exchange for allowing Google to create, take and commercially exploit millions of digital copies of books and other materials in their university libraries, Google has agreed to provide and has already provided the Universities with digital copies of Plaintiffs' and millions of others' books for the Universities to exploit. Led by the University of Michigan, the Universities created and joined HathiTrust, a partnership of more than fifty research institutions and libraries that have already begun to and, unless enjoined by this Court, will continue to combine their digital libraries to create a shared digital repository that already contains almost 10 million digital volumes, approximately 73% of which are protected by copyright. This so-called HathiTrust Digital Library ("HDL") is responsible for creating and distributing additional unauthorized digital copies of millions of copyrighted works, including works owned by Plaintiffs, and risking the potentially catastrophic, widespread dissemination of those millions of works in derogation of the statutorily-defined framework governing library books.
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3. Most recently, four of the Universities (all but Indiana University) announced their participation in HathiTrust's "Orphan Works Project," an initiative to identify and make available online to University students, faculty and library patrons full copies of so-called "orphan works" - works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by HathiTrust (the "HathiTrust Orphans"). Unless enjoined by this Court, Defendants will start to make the first set of copyright-protected HathiTrust Orphans digitally available in full text on October 13, 201 I.
4. The Universities have publicly defended their unauthorized digitization activities by claiming their conduct benefits society and is permissible under the fair use doctrine set forth in Section 107 of the United States Copyright Act (the "Copyright Act"). This position is without legal support. Section 108 of the Copyright Act explicitly regulates the extent to which libraries may lawfully reproduce copyrighted works without authorization, the circumstances under which digital copies may be created and displayed to library patrons and when copies of orphan works may be released to the public. In short, the systematic digital copying and distribution of copyrighted works by the University and HathiTrust libraries far exceeds the express limitations of Section 108, which cannot be excused by fair use under Section 107.
5. In deciding to proceed with the HathiTrust Orphan Works Project, the Universities have taken copyright law into their own hands, ignoring proposed legislative solutions to address the issues as well as the Court's rejection of a privately-negotiated agreement between Google and the Guild (among other parties) in a separate case. That proposed settlement, if approved, would have created a legal framework to display out-of-print books, including so-called orphan works, to the public through a procedure approved by court order after due process of law, with commercial-grade security guarantees. The Court
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concluded, however, that it did not have the power to create such prospective licenses to use orphan works.
6. Rather than heeding the Court's words, and allowing Congress, acting in the interest of all communities, to determine the requirements and safeguards that will govern the use of digital libraries and orphan works, Defendants have instead proceeded on their own authority, ignoring the interests of copyright holders.
7. By digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works' rights holders, the Universities are engaging in one of the largest copyright infringements in history. The Universities have directly caused millions of works that are protected by copyright to be scanned, stored in digital format, repeatedly copied and made available online for various uses. These actions not only violate the exclusive rights of copyright holders to authorize the reproduction and distribution of their works but, by creating at least two databases connected to the Internet that store millions of digital copies of copyrighted books, the Universities risk the widespread, unauthorized and irreparable dissemination of those works.
JURISDICTION AND VENUE 8. This is a civil action seeking injunctive relief for copyright infringement under the United States Copyright Act, 17 U.S.C. § 101 el seq. (the "Copyright Act"), as well as declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 9. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 (federal question) and 1338(a) (copyright). 10. This Court has personal jurisdiction over Defendants because Defendants engaged, are engaging and threaten to engage in copyright infringement directed at and harming Plaintiffs, including Plaintiffs located in this District. Defendants should reasonably expect the
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digitization of copyrighted works and the uploading and publication of copyrighted orphan works to have consequences in this state. Defendants derive substantial revenue from interstate and international commerce.
II. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b). THE PARTIES
Associalional Plaintiffs 12. Plaintiff The Authors Guild, Inc. (the "Guild") is a not-for-profit corporation organized under New York law with its place of business located 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' copyright and contractual interests since the League's founding in 1912. With more than 8,500 published authors as members, the Guild is the largest advocacy group for book authors in the United States. 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 publishing industry that affect their rights; and supporting legislation in matters affecting copyright, freedom of expression, taxation and other issues impacting professional writers. 13. Plaintiff the Australian Society of Authors Limited ("Australian Society") is a Public Company Limited By Guarantee organized in 1963 under the laws of the Commonwealth of Australia with its principal place of business is in Sydney, Australia. With more than 3,000 members, the Australian Society is the leading organization representing the professional rights and interests of Australia's literary creators. The Australian Society sets minimum rates of pay and conditions for authors and illustrators; publishes books, contracts, discussion and policy papers, and information sheets for emerging and established authors; defends the rights of
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copyright holders; represents authors on inquiries and reviews, and lobbies governments at all levels in matters such as copyright, moral rights, and taxation.
14. PlaintiffUNEQ (Union des Ecrivaines et des Ecrivains Quebecois) is a professional union of writers with its principal place of business located in Montreal, Quebec. UNEQ's mission is to defend writers' socio-economic interests and promote Quebec's literature. With a membership of 1,400 writers of fiction, poetry, drama, nonfiction, children's and other books, UNEQ is the primary representative for writers in Quebec, a status recognized by a 1990 Quebec Act (RSQ, chapter S-32.0 I), and for authors throughout Canada of original French language literary or dramatic works, as certified by the Canadian Artists and Producers Professional Relations Tribunal in 1996.
15. The Guild, the Australian Society and UNEQ (collectively, the "Associations") have associational standing to pursue claims for declaratory and injunctive relief on behalf of their members. Members of the Associations would have standing to sue in their own right as authors. Securing the copyrights and integrity of all copyrighted works - including so-called orphan works whose authors or owners cannot be readily found to speak for themselves - is fundamental to the Associations' missions. Individual participation of each author is not required to determine whether the Universities' systematic digitization of their libraries and planned dissemination of orphan works violates the Copyright Act or to grant injunctive relief for the benefit of all members of the Associations and other authors and owners of copyrighted works.
Individual Plaintiffs . 16. The following individual plaintiffs are published, professional authors and the exclusive owners of the copyrights in their books identified in Exhibit A. None of the individual
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plaintiffs authorized the Universities or Google to digitize, reproduce, distribute or otherwise use his or her works.
17. Plaintiff Pat Cummings, a resident of Brooklyn, New York, is a published author and illustrator of numerous children's books. Ms. Cummings won the American Library Association's Coretta Scott King Award for My Mama Needs Me and the Boston Globe-Hom Book Award for Talking With Artists. Ms. Cummings owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
18. Plaintiff Angelo Loukakis, a resident of Sydney, Australia, is a novelist, shortstory writer, the author of several non-fiction works, and the Executive Director of Plaintiff ASA. His short-story collection, For the Patriarch, won the New South Wales Premier' s Literary Award and he has served on the Literature Board of the Australia Council. Mr. Loukakis owns the copyright in the book specified in Exhibit A that was, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
19. Plaintiff Roxana Robinson, a resident of New York, New York, is a novelist, short story writer and biographer. Four of Ms. Robinson' s works have been Notable Books of the Year by the New York Times, and her work has appeared often in Best American Short Stories. Ms. Robinson owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
20. Plaintiff Andre Roy, a resident of Quebec, Canada, is a poet, literary critic, film critic, and the Vice President ofPlaintiffUNEQ. Mr. Roy won the Canada Council for the Arts Governor General's Poetry Award for Action Writing, and he has twice been a finalist for the award. Mr. Roy owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
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21. Plaintiff James Shapiro, a resident of New York, New York, is a Professor of English and Comparative Literature at Columbia University who specializes in Shakespeare and the Early Modem period. Professor Shapiro owns the copyright in the book specified in Exhibit A that, upon information and belief, was unlawfully reproduced, digitized and distributed by Defendants.
22. Plaintiff Daniele Simpson, a resident of Quebec, Canada, is a children's book author, novelist, short story writer, poet, and the President of Plaintiff UNEQ. Ms. Simpson owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
23. PlaintiffTJ. Stiles, a resident of San Francisco, California, is the author of numerous books about American history. Mr. Stiles won a National Book Award and Pulitzer Prize for his most recent book, The First Tycoon: The Epic Life o/Cornelius Vanderbilt. Mr. Stiles owns the copyrights in the book specified in Exhibit A that, upon information and belief, was unlawfully reproduced, digitized and distributed by Defendants.
24. Plaintiff Fay Weldon, a resident of Dorset, England, is an influential novelist, short-story writer, essayist and playwright. She is a professor of creative writing at Brunei University in London and has served as the Chair of Judges for the Booker Prize for Fiction. Ms. Weldon owns the copyrights in the books specified in Exhibit A that, upon information and belief, were unlawfully reproduced, digitized and distributed by Defendants.
University De/endants 25. Upon information and belief, defendant the Regents of the University of Michigan is a corporation organized under the laws of Michigan with its principal place of business in Ann Arbor, Michigan. The Regents of the University of Michigan govern the University of Michigan ("UM"), a state university system comprising three campuses. UM owns, operates and controls
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the University of Michigan Library in Ann Arbor (the "MLibrary"), one ofthe largest university library systems in the United States, holding more than 8.5 million volumes and serving more than 3 million patrons per year. In December 2004, MLibrary became one of the first universities to partner with Google to digitize its collection. MLibrary is the co-founder, host and primary administrator of Defendant HathiTrust and is its largest contributor, having distributed almost 4.5 million digital volumes to the HDL. MLibrary launched and administers the HathiTrust Orphan Works Project and, unless enjoined by this Court, intends to be the first institution to grant MLibrary's patrons "full view" (as defined below) to digital copies of its orphan works.
26. Upon information and belief, defendant the Regents of the University of California is a corporation organized under the laws of California with its principal place of business in Oakland, California. The Regents of the University of California govern the University of California ("UC"), a state university system comprising ten campuses. UC owns, operates and controls the University of California library system, which includes more than 100 libraries on ten UC campuses and claims to be, collectively, the largest library in the world. The California Digital Library ("CDL"), which is a part of the UC library system, has been a Google partner since August 2006 and is a co-founder of HathiTrust with UM. CDL is HathiTrust's second largest contributor, having distributed almost 3 million digital volumes to the HDL. UC announced its participation in the HathiTrust Orphan Works Project on August 24, 2011.
27. Upon information and belief, defendant the Board of Regents of the University of Wisconsin System is a corporation organized under the laws of Wisconsin with its principal place of business in Madison, Wisconsin. The Board of Regents of the University of Wisconsin System governs the University of Wisconsin System, a state university system comprising twenty-six campuses, including the University of Wisconsin-Madison ("UW"). UW owns,
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operates and controls the UW library system, which has the eleventh largest research library collection in North America with more than 8 million volumes. UW has been a Google partner since October 2006 and is a co-founder of HathiTrust. UW is HathiTrust's third largest contributor, having distributed almost 500,000 digital volumes to the HDL. UW's participation in the HathiTrust Orphan Works Project became public in June 2011.
28. Upon information and belief, defendant the Trustees oflndiana University is a corporation organized under the laws oflndiana with its principal place of business in Bloomington, Indiana. The Trustees oflndiana University govern Indiana University ("IU"), a state university system comprising eight campuses. IU owns, operates and controls the IU library system, which includes over 7.8 million books in over 900 languages. IU is a member of the Committee on Institutional Cooperation (the "CIC"), a consortium of the Big Ten universities (including Defendants UM and UW) plus the University of Chicago. By virtue of its CIC membership, JU has been a Google partner since June 2007 and is a co-founder of HathiTrust. IU is HathiTrust's seventh largest contributor, having distributed almost 200,000 digital volumes to the HDL. A fully operational, synchronized and live "mirror site" of the HathiTrust Digital Library is located on IU's Indianapolis campus.
29. Upon information and belief, defendant Cornell University ("Cornell") is a corporation and private land-grant university with its principal place of business in Ithaca, New York. Cornell owns, operates and controls the Cornell University Library, one of the leading academic research libraries in the United States with a collection of almost 8 million volumes. Cornell has been a Google partner since October 2007 and is a member of HathiTrust. Cornell is HathiTrust's fourth largest contributor, having distributed almost 350,000 digital volumes to the HDL. Cornell announced its participation in the HathiTrust Orphan Works Project on August 24,2011.
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Defendant HathiTrust 30. Upon information and belief, defendant HathiTrust is a partnership of more than fifty universities, educational institutions and consortia collaborating to create an online repository of their partnering members' digital collections of books and other works. HathiTrust's principal place of business is in Ann Arbor, Michigan. As of September 12,2011, HathiTrust claimed that its shared digital repository, the HDL, contained 9,559,214 total volumes, amounting to 428 terabytes (438,272 gigabytes) of data. HathiTrust admits that approximately 73% of its works (almost 7 million volumes) are protected by copyright.
GENERAL ALLEGATIONS The Library Exemption Under the Copyright Act
31. Recognizing the tremendous societal value provided by our nation's libraries and archives in preserving and securing works of art, literature and science, Congress included in the 1976 Copyright Act a special exemption to allow those institutions to engage in the limited reproduction and distribution of in-copyright works that would otherwise violate the exclusive rights of the copyright holders, fair use notwithstanding. Section 108 of the Copyright Act embodies the compromise adopted by Congress following decades of heated debate between authors, publishers and copyright holders, on the one hand, and libraries, on the other.
32. Section 108 specifies the limited circumstances under which libraries are permitted to reproduce and distribute copyrighted works for purposes of preservation, replacement copies and the fulfillment of patron requests. For example, under Section 108(b), a library is permitted to make three copies of any unpublished work in its collection for preservation and security purposes. With respect to published works, Section I08(c) also permits a library make three copies. The copies of published works, however, may only be made
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to replace a work in the library's collection that is (or was) damaged, deteriorating, lost or stolen, and only if the library is unable to obtain a new copy at a fair price.
33 . Under the original version of Section 108 passed in 1976, libraries were not permitted to make copies of works in "machine-readable," or digital, format. In 1998, Congress passed the Digital Millennium Copyright Act ("DMCA"). Among other things, the DMCA amended Section 108 to permit libraries to make digital copies of unpublished works for preservation purposes and as replacements for published works. The statute, however, placed two restrictions on the permissible use of digital copies:
(a) There can be no further distribution of the digital format ; and (b) The digital copy cannot be used " outside the premises of the library or
archives. " 34. In passing the DMCA, Congress explained the reasons for restricting the libraries' use of digital copies:
In recognition ofthe risk that uncontrolled public access to the copies or phonorecords in digital formats could substantially harm the interests ofthe copyright owner byfacilitating immediate, flawless and widespread reproduction and distribution ofadditional copies or phonorecords ofthe work, the amendment provides that any copy of a work that the library or archive makes in a digital format must not be otherwise distributed in that format and must not be made available in that format to the public outside the premises of the library or archives. In this way, the amendment permits the utilization of digital technologies solely for the purposes ofthis subsection.
• • •
In the view of the Committee, this proviso is necessary to ensure that the amendment strikes the appropriate balance, permitting the use ofdigital technology by libraries and archives while guarding against the potential harm to the copyright owner's market from patrons obtaining unlimited access to digital copies from any location. S. Rep. Nos. 105- I90, at 6 I-62 (I 998) (emphasis added).
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35. Congress also addressed the libraries' desire to make "orphan works" more broadly available to the public. In 1998, Congress added Section 108(h) to the Copyright Act in response to libraries' concerns that the twenty-year extension granted to copyrights through passage of the Copyright Term Extension Act would deprive the public of the availability of older, out-of-print works that otherwise would have been placed in the public domain. Section I 08(h) permits libraries to reproduce, distribute and perform published copyrighted works that are in the last 20 years of their copyright term and are not commercially exploited or otherwise reasonably available during the extended term.
36. Notwithstanding the more expansive reproduction and distribution rights granted to libraries, in Section 108(g), Congress made clear that those rights "extend only to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions[.]" Libraries are expressly prohibited from "engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material" or "the systematic reproduction or distribution of single or multiple copies or phonorecords..." 17 U.S.C. § 108(g)(l) and (2).
37. Since the 1998 updates, significant efforts have been made to further amend Section 108 to address the preservation practices of libraries in an increasingly digital environment. For example, in 2005, the Library of Congress, in cooperation with the U.S. Copyright Office, sponsored a "Section 108 Study Group" to prepare findings and make suggestions to the Library of Congress for modifications to Section 108 to reflect new technology. On March 31, 2008, the Group released its final report, which recommended, among other things, that Section 108 be amended to expand a library's right to create and store digital copies of published works in their collections for preservation purposes.
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38. Despite receiving numerous recommendations from the Section 108 Study Group and other interested parties, since 1998, Congress has not amended Section 108. The Universities Engage in Systematic Digitization of Copyright Works
39. In blatant derogation of Plaintiffs' exclusive rights under Section 106 and the express regulations governing libraries' rights under Section 108 of the Copyright Act, Defendants have engaged in a concerted, systematic and widespread campaign to digitize, reproduce, distribute and otherwise exploit millions of copyrighted works in their libraries without permission from the copyright holders associated with those works.
40. On December 14, 2004, Google announced that it was working with four U.S. libraries, including MLibrary, to digitally scan books from their collections. Upon information and belief, partnerships between Google and other universities and institutions followed over the next several years, including partnerships with UC on or about August 9, 2006, UW on or about October 12, 2006, IU (through its membership in CIC) on or about June 6, 2007 and Cornell on or about August 7, 2007. Since commencing the digitization project, Google and its partners have digitized more than 12 million books.
41. Upon information and belief, pursuant to separate Cooperative Agreements entered into by Google and each University, the parties cooperate to identify books from the University's collection to be digitized. The books selected for digitization are not limited to works in the public domain, unpublished works or deteriorating published works that cannot be replaced, but include in-print books that are commercially available and are protected by copyright. The University then collects the works and has them delivered to a facility located either on or off the school's campus that is occupied by Google personnel and scanning equipment.
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42. Upon information and belief, Google is responsible for digitizing the content of the works. After a work has been digitized, Google retains at least one copy for commercial exploitation through "Google Books," an online system that allows users to search the content and view "snippets" of millions of digitized books.
43. Upon information and belief, Google also provides a digital copy of the work to the University. The digital copy comprises a set of scanned image files, files containing the text of the work extracted through optical character recognition ("OCR") technology, and data associated with the work indicating bibliographic and other information. By creating both scanned image files of the pages and a text file from the printed work, the digitization process, and each subsequent copy thereof, includes two reproductions of the original. After digitization, the original works are returned to the source library.
44. In light of the high-priced and sophisticated scanning technology and amount of staff required to digitize the works, the digital copies obtained by the Universities carry significant economic value. Prior to Google's involvement, libraries estimated their costs of digitization at approximately $100 per volume. Thus, the value of the digitization project is measured in the hundreds of millions of dollars.
45. Upon information and belief, certain Universities, including MLibrary, also digitize works in their collections, including copyrighted works, "in-house," meaning they create digital copies of works using their own equipment and personnel and without Google' s assistance.
46. Neither Google nor the Universities obtained permission from the vast majority of copyright holders to digitize their books.
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Google Books Lawsuit 47. On September 20,2005, the Guild and several published authors filed a class
action lawsuit against Google in the United States District Court for the Southern District of New York (the "Google Books Lawsuit"), alleging that Google's digitization and commercial exploitation of copyrighted works constituted massive copyright infringement. See The Authors Guild, Inc., et af. v. Google Inc., Case No. 05 Civ. 8136 (S.D.N.Y.).
48. On October 28, 2008, after extended negotiations, the parties filed a proposed settlement agreement to resolve the dispute. On November 13,2009, the parties filed for final court approval an Amended Settlement Agreement (the "ASA"), pursuant to which, inter alia, Google agreed to compensate authors and publishers in exchange for the right to make the digitized books available to the public. If approved, the ASA would have established a "Book Rights Registry" to maintain a database of copyright holders and administer distributions of revenues. The ASA also would have created an "Unclaimed Works Fiduciary" to represent the interests of unclaimed, or "orphan," works, and offered a framework to make orphan works available to the pUblic.
49. On March 22, 2011, the ASA was rejected, with now Circuit Judge Denny Chin concluding that "[w]hile the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far." Authors Guildv. Google, Inc., 770 F. Supp. 2d 666, 669 (S.D.N.Y. 2011).
50. One of Judge Chin's chief rationales for rejecting the ASA was his concern that "the establishment of a mechanism exploiting unclaimed books is a matter more suited for Congress than this Court." The Court reasoned:
The questions ofwho should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are mailers more appropriately decided by Congress than through an agreement among private, self-interested
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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." Jd. at 677. 51. The Court noted "longstanding efforts" by Congress to pass legislation to address the orphan works problem, including "Orphan Books" bills that were proposed in 2006 and 2008 but were never enacted. Jd. at 678. The Court also concluded that the ASA raised significant international law concerns. 52. The Google Books Lawsuit is still pending in this Court. HathiTrust 53. On October 13,2008, the thirteen universities comprising the CIC, led by MLibrary, the UC library system, led by the COL, and the University of Virginia announced the launch of HathiTrust to construct a shared repository of their combined digitized collections. HathiTrust soon expanded to include over fifty universities, consortia and research institutions from around the world. According to its website, HathiTrust's mission is "to contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge." 54. Upon information and belief, members of HathiTrust "contribute" to the HathiTrust Digital Library digital copies of works in their libraries that were scanned by Google, other organizations such as the Internet Archive, or the libraries' own staff. In derogation of the restrictions of Section 108 on the number of digital copies libraries are permitted to make, HathiTrust members copy, rather than transfer, their digital works to HathiTrust, meaning that at least two further reproductions are made (one image file, one digital-text OCR file) when a digital object is delivered to HathiTrust. Upon information and belief, digital objects are generally copied to HaithiTrust by uploading the files over the Internet or delivering them on removable media.
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55. Upon information and belief, the "ingestion" of digital works and their associated metadata into the HDL is performed at MLibrary. As explained below, the digital objects are then replicated to HathiTrust's active mirror site located on IU's Indianapolis campus, and stored on backup tapes located at different UM facilities.
56. Upon information and belief, HathiTrust thereafter provides three primary services to it.s constituent members, their patrons and the general public.
57. Firs!, HathiTrust provides a clustered storage system to hold more than 428 terabytes of combined digital files deposited to date by HathiTrust's 50+ members. Upon information and belief, HathiTrust's storage architecture employs two synchronized instances of server farms (each including at least two web servers, a database server and a storage cluster), with the primary site located at UM's Ann Arbor, Michigan campus where ingestion occurs, and a redundant mirror site located at !U's Indianapolis campus. HathiTrust also routinely creates tape backups of all data contained in the HDL. The tapes are stored at a different facility on UM's campus and, upon information and belief, these tapes are replicated and the copies are stored at yet another facility on UM's campus. Thus, once a University distributes a digital object to the HDL, at least eight digital copies of the work (four image files, four digital-text OCR files) are generated.
58. Second, according to HathiTrust's website, "HathiTrust provides secure, reliable, long-term preservation for deposited materials." Upon information and belief, HathiTrust preserves and secures not only unpublished or difficult-to-replace published works as permitted by Sections 108(b) and (c) of the Copyright Act, but also works that are in-copyright, published and commercially-available.
59. Third, HathiTrust provides a variety of tools to allow its users to access content in the HDL. For example, all users may search and identify bibliographic information (title, author,
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subject, ISBN, publisher, and year of publication) for the works contained in the HDL. HathiTrust also permits all users to search the entire text of all works in the HDL (including public domain and in-copyright works) to determine the number of times and page location(s) of any keyword or phrase found in a book.
60. In addition, HathiTrust permits users to view, search, print and download full copies of certain volumes in the HDL. Whether a user may access this "full view" of a digital object is determined by the identity of the user seeking access to the work (e.g., whether the user is from a HathiTrust university), and the work's purported copyright status according to the "HathiTrust Rights Database."
61. The HathiTrust Rights Database specifies the purported copyright status of each work in the HDL, as determined through automated and manual processes conducted by HathiTrust, including whether the work is (i) in the public domain, (ii) in-copyright, (iii) incopyright but has been authorized for certain uses by the associated rights holder, (iii) incopyright but too brittle to circulate, (iv) of unknown copyright status, or (v) an orphan work. For example, UM students, faculty and patrons ofMLibrary, wherever they may be located worldwide, may obtain "full view" access of works that are specified as being in the public domain and originated from MLibrary.
62. Upon information and belief, the HDL is capable of providing public access to the "full view" of every digital object in the database, even if access is purportedly restricted by settings in the HathiTrust Rights Database. Thus, if the copyright status of a work is misidentified in the HathiTrust Rights Database, the HDL malfunctions or a user obtains unauthorized access to the HDL, the work may become fully viewable, printable and downloadable by the general public.
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63. In all, through their systematic and concerted digitization efforts, the Universities and HathiTrust are responsible for the creation of at least twelve unauthorized digital copies (six image files, six digital-text files) of every physical work in their libraries that is selected for digitization: two copies for Google, two copies for the originating University, two copies for the HDL servers at UM, two copies for the HDL servers at IU and two tape backups of the image and digital text files at separate UM facilities. Each pair of digital copies is stored at a different location and is accessible by different individuals. It is likely that additional copies are made at some or all of the locations. HathiTrust Orphan Works Project
64. On May 16,2011, MLibrary announced the launch of the HathiTrust Orphan Works Project - an initiative to identify so-called orphans amongst the in-copyright works in the HDL, with an initial focus on works published in the United States between 1923 and 1963. John Wilkin, executive director of HathiTrust, published an article estimating that as many as 50% of the volumes in the HDL may be "orphan works."
65. To identify an in-copyright work as a work HathiTrust will treat as an "orphan," the HathiTrust Orphan Works Project purports to follow a multistep due diligence process to check whether the work is commercially available for sale and, if it is not, to attempt to locate and contact the copyright holder. If HathiTrust fails to contact the copyright holder, it then lists the bibliographic information for the work on the HathiTrust Orphan Candidates webpage for ninety days. If no copyright holder emerges during that time, the work will become available for "full view" on HathiTrust to UM's students, professors and other authenticated users and visitors to the libraries at UM's campuses, allowing them to view, download and print the entire copyrighted work.
20

Case 1:11-cv-06351-UA Document 1 Filed 09/12/11 Page 21 of 26
66. In July and August 2011, other HathiTrust members, including Defendants UW, UC and Cornell, announced their participation in the HathiTrust Orphan Works Project and their intent to make works in their collections identified as HathiTrust Orphans available to their respective students, faculty and library patrons.
67. The first list of HathiTrust Orphan Candidates was posted on the HathiTrust website on or about July 15,2011. Unless enjoined by this Court, on or about October 13,2011, the first set of copyright protected works deemed to be orphans by the HathiTrust process will become available for "full view" to tens of thousands of users affiliated with the Universities.
CLAIM FOR RELIEF 68. Plaintiffs incorporate by reference paragraphs 1 through 67 as if set forth herein. 69. Plaintiffs' copyrights specified in Exhibit A are valid and enforceable. 70. By scanning, creating multiple digital copies of and distributing copyrighted works - including without limitation each of Plaintiffs' copyrighted works identified on Exhibit A - on a systematic, continuous and unauthorized basis, Defendants have violated and are continuing to violate Section 108 of the Copyright Act and have infringed and are continuing to infringe Plaintiffs' copyrights and exclusive rights under Section 106 of the Copyright Act. 71 . Defendants' infringing acts have been and continue to be willful , intentional and purposeful, in disregard of the rights of Plaintiffs. 72. Defendants' conduct has caused, is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot be remedied with money. Plaintiffs have no adequate remedy at law. 73. An actual controversy presently exists between the parties regarding whether Defendants' ongoing, systematic digitization of copyrighted works without authorization and their threat to imminently display the HathiTrust Orphans without authorization constitute and,
21

Case 1:11-cv-06351-UA Document 1 Filed 09/12/11 Page 22 of 26
unless enjoined by this Court, will constitute violations of Sections 106 and 108 of the Copyright Act.
74. Because of Defendants' actions and threatened actions as described herein, including the threat by Defendants HathiTrust and UM to begin displaying copyrighted HathiTrust Orphans on October 13, 2011, there is a substantial controversy between the parties with adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
75. Plaintiffs are entitled to prospective, injunctive and declaratory relief to enjoin Defendants from their continuous, ongoing and threatened violations of federal copyright law as described herein.
DEMAND FOR RELIEF WHEREFORE, Plaintiffs demand that: (a) Pursuant to 28 U.S.C. § 2201, this Court declare that:
(i) Defendants' systematic digitization and distribution of copyrighted materials without authorization constitutes unlawful copyright infringement in violation of Sections 106 and 108 of the Copyright Act;
(ii) Defendants' distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected;
(b) Pursuant to 17 U.S.C. § 502, this Court issue an injunction enjoining Defendants from:
(i) systematically reproducing, distributing and/or displaying Plaintiffs' or any other copyrighted works without authorization except as specifically provided by 17 U.S.C. § 108;
22

Case 1:11-cv-06351-UA Document 1 Filed 09/12/11 Page 23 of 26

(ii) providing to Google for digitization copyrighted works without authorization;
(iii) proceeding with the HathiTrust Orphans Work Project, including without limitation, from displaying, distributing or otherwise making available any so-called orphan work protected by copyright.
(c) Pursuant to 17 U.S.C. § 503 , this Court order the impoundment of all unauthorized digital copies of works protected by copyright within Defendants' possession, custody or control, including works whose copyrights are held by Plaintiffs, to be held in escrow under commercial grade security, with any computer system storing the digital copies powered down and disconnected from any network, pending an appropriate act of Congress.
(d) Pursuant to 17 U.S.C. § 505, this Court award Plaintiffs their attorneys' fees and costs; and
(e) Plaintiffs be granted such other relief as may be deemed just and equitable.

Dated: New York, New York September 12,2011

FRANKFURT KURNIT KLEIN &SELZ, P.c.

By: ~ ~ k. ~ ... '-"\.
Edward H. Rosenthal, Esq.
Jeremy S. Goldman, Esq.

488 Madison Avenue New York, New York 10022 Tel.: (212) 980-0120

Attorneys for PlaintiffS

23

EXHIBIT A

Case 1:11-cv-06351-UA Document 1 Filed 09/12/11 Page 24 of 26

PLAINTIFF AUTHOR
Pat Cummings Pat Cummings Pat Cummings Pat Cummings Pat Cummings Pat Cummings Angelo Loukakis Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson Andre Roy Andre Roy

TITLE

PUBLISHER

C.L.O .U.D.S.
Clean Your Room, Harvey Moon!
Jimmy Lee Did It
Talking With Artists: Volume I Talking With Artists: Volume 2 Talking With Adventurers
Vernacular Dreams
Summer light Georgia O'Keeffe : a life A glimpse of scarlet and other stories A glimpse of scarlet and other stories Asking for love and other stories Sweetwater: a novel A perfect stranger: and other stories Marguerite Duras Ii. Montreal Marguerite Duras Ii. Montreal

Lothrop, Lee & Shepard Books Bradbury Press Lothrop, Lee & Shepard Books
Bradbury Press Simon & Schuster Books for Young Readers National Geographic Society University of Queensland Press Viking Harper & Row E. Burlingame Books
HarperPerennial
Random House Random House Random House
Spirale
Editions Spirale

PUB. DATE
1986
1991 1985
1992 1995 1998 1986 1988 1989 1991
1992 1996 2003 2005 1984
1981

U.S. COPYRIGHT
REGISTRATION No.
TXOOO1806038

DEFENDANT UNIVERSITY
University of Michigan

TXOO03159777

University of Michigan

TXOOOl650936

University of Michigan

TXOO03422950

University of Michigan

TXOO04242559
V AOOO0932461 V AOOO0932460
TXOOO 1967553
TXOO02346979 TXOO02736171

University of Michigan
University of California
University of Michigan University of Michigan University of Michigan University of Michigan

University of Michigan

TX000426862I TXOO05905727

University of Michigan University of Michigan University of Michigan

University of Michigan

University of California
- -- - - - -

-

----

I PLAINTIFF AUTHOR TITLE

PUBLISHER

James Shapiro
Daniele Simpson
T.1. Stiles
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon Fay Weldon
Fay Weldon
Fay_Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon
Fay Weldon
Fay_Weldon Fay Weldon
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon Fay Weldon FavWeldon

Oberammergau Je cours plus vite que la Iycose : poemes Jesse James: last rebel of the Civil War Watching me, watching you Praxis: a novel Puffball: a novel Remember me The heart of the country The hearts and lives of men The rules oflife The Shrapnel Academy The heart of the country Sacred cows The fat woman's joke The cloning of Joanna May Little sisters Darcy's utopia The cloning of Joanna May Moon over Minneapolis, or, Why she couldn't stay Life force Growing rich Life force Trouble

Pantheon Books
Naaman
A.A. Knopf
Summit Books
Summit Books Summit Books Random House Hutchinson
Heinemann
Hutchinson Viking Viking Chatto & Windus Academ~Chicago
Collins
Chivers Press Collins
Penguin Books
HarperCollins
Viking HarperCollins HarperCollins Penguin Books

2

PUB. DATE
2000
1983

U.S. COPYRIGHT
REGISTRATION No. TXOO05234556

DEFENDANT UNIVERSITY
University of Michigan University of Wisconsin

2002 TXOO03959406

University of Michigan

1981
1978 1980 1976 1987
1987
1987 1987 1988 1989 1986
1989
1987 1990
1991

TXOOO0907715 TXOOOO 161661 TXOOO0550383
TXOO02580673 TXOO02176563 TXOO02139543 TXOOO1967142 TXOO02580673
TXOO02728206
TX000293 1605 TXOO02728206

University of Michigan
University of Michigan University of Michigan University of Michigan University of Michigan
University of Michigan
University of Michigan University of Michigan University of Michigan University of Michigan University of Michigan
University of Michigan
University of Michigan University of Michigan
University of Michigan

1991
1992 1992 1992 1994

TX00031 14513 TXOO03274167
TXOO03274167 TXOOO3682496
-- --- --- --

University of Michigan
University of Michigan University of Michigan University of Michigan University of Michigan

Case 1:11-cv-06351-UA Document 1 Filed 09/12/11 Page 25 of 26

Case 1:11-cv-06351-UA Document 1 Filed 09/12/11 Page 26 of 26

PLAINTIFF AUTHOR
Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon
Fay Weldon
Fay Weldon
Fay Weldon
Fay Weldon
Fay Weldon
Fay Weldon
Fay_Weldon Fay_Weldon Fay_Weldon Fay_Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon

TITLE

---

Affliction Splitting Wicked women: stories Leader of the band Growing rich The hearts and lives of men A hard time to be a father : a collection of short stories Life force Nothing to wear and nowhere to hide : stories Big women Godless in Eden : a book of essays Rhode Island blues The Bulgari connection Auto dafay Flood warning: a play Wicked women: stories Mantrapped She may not leave The spa decameron The hearts and lives of men Big women Life force Worst fears

PUBLISHER
H~erCollins
Flamingo The Atlantic Monthly Press Penguin Books Flamingo
Flamingo
Flamingo
HarperCollins
Flamingo
Flamingo
Flamingo
Flamingo Flamingo Flamingo Samuel French The Atlantic Monthly Press Fourth Estate Fourth Estate Quercus
Heinemann
Flamingo Penguin Books Flamingo

PUB. DATE
1993 1995 1997 1990 1992
1992
1998
1992
2002
1997
1999
2000 2001 2002 2003 1997 2004 2005 2007
1987
1997 1993 1996

U.S. COPYRIGHT REGISTRATION No.
TXOO04084784 TXOO04578645 TXOO02560295
TXOO02176563

DEFENDANT UNIVERSITY
University of Michigan University of Michigan University of Michigan University of Michigan University of Michigan
University of Michigan

TXOO03274167
TXOO04843655
TXOO05335279
TXOO05741087 PAOOO1247989 TXOO04578645
TXOO06444289 TXOO07138911 TXOO02176563 TXOO04843655 TXOO03274167 TXOO04405886

University of Michigan
University of Michigan
University of Michigan
University of Michigan
University of Michigan
University of Michigan University of Michigan University of Michigan University of Michigan University of Michigan University of Michigan University of Michigan University of Michigan
University of California
University of California University of California University of California

3

 
 Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 1 of 32

Edward H. Rosenthal Jeremy S. Goldman FRANKFURT KURNIT KLEIN & SELZ, P.C. 488 Madison Avenue New York, New York 10022 Tel.: (212) 980-0120 Fax: (212) 593-9175 erosenthal@fkks.com jgoldman@fkks.com
Attorneys for Plaintiffi
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------)(
THE AUTHORS GUILD, INC., THE AUTHORS LEAGUE FUND, INC., THE AUSTRALIAN SOCIETY: OF AUTHORS LIMITED, UNION DES ECRIVAINES ET DES ECRIVAINS QUEBECOIS, AUTHORS' LICENSING AND COLLECTING SOCIETY, SVERIGES FORFATTARFORBUND, NORSK FAGLITTERlER FORFATTER- OG OVERSETTERFORENING, THE WRITERS' UNION OF CANADA, TROND ANDREASSEN, PAT CUMMINGS, ERIK GRUNDSTROM, ANGELO LOUKAKIS, HELGE R0NNING, RO)(ANA ROBINSON, ANDRE ROY, JACK R. SALAMANCA, JAMES SHAPIRO, DANIELE SIMPSON, T.J. STILES AND FAY WELDON,
Plaintiffs,
- against -
HATHITRUST; JULIA DONOVAN DARLOW, LAURENCE B. DEITCH, DENISE ILITCH, OLIVIA P. MAYNARD, ANDREA FISCHER NEWMAN, ANDREW C. RICHNER, S. MARTIN TAYLOR and KATHERINE E. WHITE, in their official capacities as The Regents of The University of Michigan; RICHARD C. BLUM, DAVID CRANE, WILLIAM DE LA PENA, RUSSELL GOULD, EDDIE ISLAND, ODESSA JOHNSON, GEORGE KIEFFER, SHERRY L. LANSING, MONICA LOZANO, HADI MAKARECHIAN, GEORGE M. MARCUS,

Index No. II Civ. 6351 (HB) FIRST AMENDED COMPLAINT

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 2 of 32
ALFREDO MIRELES, JR., NORMAN J. PATTIZ, BONNIE REISS, FRED RUIZ, LESLIE TANG SCHILLING, BRUCE D. VARNER, PAUL WACHTER and CHARLENE ZETTEL, in their official capacities as The Regents of The University of California; JEFFREY BARTELL, MARK J. BRADLEY, JUDITH V. CRAIN, JOHN DREW, TONY EVERS, MICHAEL 1. FALBO, EDMUND MANYDEEDS, KATHERINE POINTER, CHARLES PRUITT, TROY SHERVEN, BRENT SMITH, MICHAEL 1. SPECTOR, S. MARK TYLER, JOSE F. VASQUEZ and DAVID G. WALSH, in their official capacities as The Board of Regents of The University of Wisconsin System; WILLIAM R. CAST, PATRICK A. SHOULDERS, MARYELLEN KILEY BISHOP, BRUCE COLE, PHILIP N. ESKEW, JR., CORA J. GRIFFIN, THOMAS E. REILLY, JR., DERICA W. RICE and WILLIAM H. STRONG, in their official capacities as The Trustees ofIndiana University; and CORNELL UNIVERSITY,
Defendants.
----------------------------------------------------------------------)(
Plaintiffs The Authors Guild, Inc., The Authors League Fund, Inc., The Australian
Society of Authors Limited, UNEQ (Union Des Ecrivaines et des Ecrivains Quebecois),
Authors' Licensing and Collecting Society, Sveriges Forfattarforbund, Norsk Faglitterrer
Forfatter- Og Oversetterforening, The Writers' Union of Canada, Trond Andreassen, Pat
Cummings, Erik Grundstrom, Angelo Loukakis, Roxana Robinson, Helge R0IUling, Andre Roy,
Jack R. Salamanca, James Shapiro, Daniele Simpson, TJ. Stiles and Fay Weldon (collectively,
"Plaintiffs"), by and through their attorneys, Frankfurt Kumit Klein & Selz, P.C., for their First
Amended Complaint against defendants HathiTrust; Julia Donovan Darlow, Laurence B. Deitch,
Denise I1itch, Olivia P. Maynard, Andrea Fischer Newman, Andrew C. Richner, S. Martin
Taylor and Katherine E. White, in their official capacities as the Regents of the University of
2

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 3 of 32
Michigan (collectively, the "UM Regents"); Richard C. Blum, David Crane, William De La Pena, Russell Gould, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, George M. Marcus, Alfredo Mireles, Jr., Norman J. Pattiz, Bonnie Reiss, Fred Ruiz, Leslie Tang Schilling, Bruce D. Varner, Paul Wachter and Charlene Zettel, in their official capacities as the Regents of the University of California (collectively, the "UC Regents"); Jeffrey Bartell, Mark J. Bradley, Judith V. Crain, John Drew, Tony Evers, Michael J. Falbo, Edmund Manydeeds, Katherine Pointer, Charles Pruitt, Troy Sherven, Brent Smith, Michael 1. Spector, S. Mark Tyler, Jose F. Vasquez and David G. Walsh, in their official capacities as the Board of Regents ofthe University of Wisconsin System (collectively, the "UW Regents"); William R. Cast, Patrick A. Shoulders, MaryEllen Kiley Bishop, Bruce Cole, Philip N. Eskew, Jr., Cora J. Griffin, Thomas E. Reilly, Jr., Derica W. Rice and William H. Strong, in their official capacities as the Trustees oflndiana University (collectively, the "IU Trustees"); and Cornell University (collectively, "Defendants") allege as follows :
NATURE OF THE ACTION I. This is an action for prospective injunctive and declaratory relief arising from the systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works, including books whose copyrights are held by Plaintiffs, by five universities (each, a "University" and collectively, the "Universities") and HathiTrust, a partnership between the Universities and other institutions. Through cooperation agreements entered into with Google Inc. ("Google"), Defendants have engaged in an unprecedented effort to "digitize" - or to create digital copies of - all or a significant portion of the works in their libraries without the permission of their authors or other copyright holders. 2. In exchange for allowing Google to create, take and commercially exploit millions of digital copies of books and other materials in their university libraries, Google has
3

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 4 of 32
agreed to provide and has already provided the Universities with digital copies of Plaintiffs' and millions of others' books for the Universities to exploit. Led by the University of Michigan, the Universities created and joined HathiTrust, a partnership of more than fifty research institutions and libraries that have already begun to and, unless enjoined by this Court, will continue to combine their digital libraries to create a shared digital repository that already contains almost 10 million digital volumes, approximately 73% of which are protected by copyright. This so-called HathiTrust Digital Library ("HDL") is responsible for creating and distributing additional unauthorized digital copies of millions of copyrighted works, including works owned by Plaintiffs, and risking the potentially catastrophic, widespread dissemination of those millions of works in derogation of the statutorily-defined framework governing library books.
3. Most recently, four of the Universities (all but Indiana University) announced their participation in HathiTrust's "Orphan Works Project," an initiative to identify and make available online to University students, faculty and library patrons full copies of so-called "orphan works" - works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by HathiTrust (the "HathiTrust Orphans"). Unless enjoined by this Court, Defendants will start to make the copyright-protected HathiTrust Orphans digitally available in full text.
4. The Universities have publicly defended their unauthorized digitization activities by claiming their conduct benefits society and is permissible under the fair use doctrine set forth in Section 107 of the United States Copyright Act (the "Copyright Act"). This position is without legal support. Section 108 of the Copyright Act explicitly regulates the extent to which libraries may lawfully reproduce copyrighted works without authorization, the circumstances under which digital copies may be created and displayed to library patrons and when copies of orphan works may be released to the public. In short, the systematic digital copying and
4

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 5 of 32
distribution of copyrighted works by the University and HathiTrust libraries far exceeds the express limitations of Section 108, which cannot be excused by fair use under Section 107.
5. In deciding to proceed with the HathiTrust Orphan Works Project, the Universities have taken copyright law into their own hands, ignoring proposed legislative solutions to address the issues as well as the Court's rejection of a privately-negotiated agreement between Google and the Guild (among other parties) in a separate case. That proposed settlement, if approved, would have created a legal framework to display out-of-print books, including so-called orphan works, to the public through a procedure approved by court order after due process of law, with commercial-grade security guarantees. The Court concluded, however, that it did not have the power to create such prospective licenses to use orphan works.
6. Rather than heeding the Court's words, and allowing Congress, acting in the interest of all communities, to determine the requirements and safeguards that will govern the use of digital libraries and orphan works, Defendants have instead proceeded on their own authority, ignoring the interests of copyright holders.
7. By digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works' rights holders, the Universities are engaging in one of the largest copyright infringements in history. The Universities have directly caused millions of works that are protected by copyright to be scanned, stored in digital format, repeatedly copied and made available online for various uses. These actions not only violate the exclusive rights of copyright holders to authorize the reproduction and distribution of their works but, by creating at least two databases connected to the Internet that store millions of digital copies of copyrighted books, the Universities risk the widespread, unauthorized and irreparable dissemination of those works.
5

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 6 of 32
JURISDICTION AND VENUE 8. This is a civil action seeking injunctive relieffor copyright infringement under the United States Copyright Act, 17 U.S.C. § 101 et seq. (the "Copyright Act"), as well as declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 9. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 (federal question) and 1338(a) (copyright). 10. This Court has personal jurisdiction over Defendants because Defendants engaged, are engaging and threaten to engage in copyright infringement directed at and harming Plaintiffs, including Plaintiffs located in this District. Defendants should reasonably expect the digitization of copyrighted works, and the uploading and publication of copyrighted orphan works, to have consequences in this state. Defendants derive substantial revenue from interstate and international commerce. II. Venue is proper in this district pursuant to 28 U.S.c. § 1391(b).
THE PARTIES Associational Plaintifft 12. Plaintiff The Authors Guild, Inc. (the "Guild") is a not-for-profit corporation organized under New York law with its place of business located 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' copyright and contractual interests since the League's founding in 1912. With more than 8,500 published authors as members, the Guild is the largest advocacy group for book authors in the United States. 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
6

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 7 of 32
publishing industry that affect their rights; and supporting legislation in matters affecting copyright, freedom of expression, taxation and other issues impacting professional writers.
13. Plaintiff the Authors League Fund, Inc. , (the "Authors Fund") is a not-for-profit corporation organized under New York law with its place of business located at 31 East 32nd Street, New York, New York. Since its founding in 1917, the Authors Fund, which provides assistance to professional writers and dramatists in severe financial need because of health problems, temporary loss of income or other misfortune, has drawn most of its support from authors, some of whom leave their literary estates to the Fund. The Authors Fund owns literary estate of Gladys Malvern, including the copyright in "Good Troupers All : The Story of Joseph Jefferson." Defendant HathiTrust listed "Good Troupers All" as an "orphan work candidate" with a scheduled release date of October 13, 20 II. The Authors Fund owns, among others, the copyright in the book specified in Exhibit A which was, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
14. Plaintiff the Australian Society of Authors Limited (" Australian Society") is a Public Company Limited By Guarantee organized in 1963 under the laws of the Commonwealth of Australia with its principal place of business is in Sydney, Australia. With more than 3,000 members, the Australian Society is the leading organization representing the professional rights and interests of Australia's literary creators. The Australian Society sets minimum rates of pay and conditions for authors and illustrators; publishes books, contracts, discussion and policy papers, and information sheets for emerging and established authors; defends the rights of copyright holders; represents authors on inquiries and reviews, and lobbies governments at all levels in matters such as copyright, moral rights, and taxation.
7

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 8 of 32
15. Plaintiff the Authors' Licensing and Collecting Society ("ALCS") is a not-forprofit organization with its principal place of business in London, England. ALCS is the UK collecting society for authors of all genres of literary and dramatic copyright works. Since its founding in 1977, ALCS has paid more than £250 million to its writer-members for secondary uses of their works, including photocopying, scanning, and digital copying of its member' works. Among its more than 80,000 members, ALCS represents more than 50,000 book authors. ALCS research shows that about half of all books copied under its agreements are out of print. As a consequence, as part of its routine operations, ALCS identifies and pays authors of out-of-print works. Over a ten-year period, ALCS has found that it identifies, contacts and pays the contributors to more than 95% of the most commonly copied out-of-print books. On information and belief, Defendants have digitized without authority more than 35,000 books by ALCS members, including at least two books that Defendants had deemed "orphan works candidates."
16. PlaintiffUNEQ (Union des Ecrivaines et des Ecrivains Quebecois) is a professional union of writers with its principal place of business located in Montreal, Quebec. UNEQ's mission is to defend writers' socio-economic interests and promote Quebec's literature. With a membership of 1,400 writers of fiction, poetry, drama, nonfiction, children's and other books, UNEQ is the primary representative for writers in Quebec, a status recognized by a 1990 Quebec Act (RSQ, chapter S-32.D1), and for authors throughout Canada of original French language literary or dramatic works, as certified by the Canadian Artists and Producers Professional Relations Tribunal in 1996.
17. Plaintiff Sveriges Forfattarf6rbund ("SFF") is a non-profit organization with its principal place of business in Stockholm, Sweden. The SFF, first organized in 1893 as the Swedish Association of Authors, has more than 2,750 professional writers and translators as its members and is the leading organization for book authors in Sweden. In pursuit of its mission of
8

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 9 of 32
securing its members' rights to reasonable remuneration and working conditions, the SFF negotiates standard, minimum-terms agreements with book publishers, radio and television broadcasters, film producers and others on behalf of authors and translators. The SFF also defends freedom of expression and of the press by safeguarding the principles of the Swedish Freedom of the Press Act.
18. PlaintiffNorsk Faglitterrer Forfatter- og Oversetterforening ("NFF") is a trade union founded in 1978 with its principal place of business in Oslo, Norway. The NFF is Norway's union for nonfiction writers, representing 5,400 authors and translators. It represents its members' professional interests by, among other activities, negotiating minimum-terms agreements with book publishers and others, negotiating conditions for copying books in schools, libraries and elsewhere, and providing legal assistance to its members in negotiations and conflicts regarding literary rights.
19. Plaintiff The Writers' Union of Canada ("TWUC") is a non-profit association incorporated under the Canada Corporations Act with its principal place of business in Toronto, Ontario. TWUC has approximately 2,000 members who earn their living from writing books. Since its inception in 1973, TWUC has been an advocate for effective copyright law, protection of freedom of expression, fair publishing contracts, and other issues that affect authors. TWUC's objects include uniting authors for the advancement of their common interests and fostering writing in Canada. Certified by the Canadian Artists and Producers Professional Relations Tribunal, TWUC is the national voice of professional book writers in Canada in the English language.
20. Plaintiffs the Guild, the Australian Society, UNEQ, ALCS, SFF, NFF and TWUC (collectively, the "Associations") have associational standing to pursue claims for declaratory and injunctive relief on behalf of their members. Members of the Associations would have
9

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 10 of 32
standing to sue in their own right as authors. Securing the copyrights and integrity of all copyrighted works - including so-called orphan works whose authors or owners cannot be readily found to speak for themselves - is fundamental to the Associations' missions. Individual participation of each author is not required to determine whether the Universities' systematic digitization of their libraries and planned dissemination of orphan works violates the Copyright Act or to grant injunctive relief for the benefit of all members of the Associations and other authors and owners of copyrighted works.
Individual Plaintiffs 21. The following individual plaintiffs are published, professional authors and the exclusive owners of the copyrights in their books identified in Exhibit A. None of the individual plaintiffs authorized the Universities or Google to digitize, reproduce, distribute or otherwise use his or her works. 22. Plaintiff Trond Andreassen, a resident of Oslo, Norway, has been Secretary General of plaintiffNFF since 1986, except for 1995-1997 when he served as a publisher for the higher education department of University Press, a Norwegian academic publishing house. Mr. Andreassen owns the copyright in the book specified in Exhibit A that was, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants. 23. Plaintiff Pat Cummings, a resident of Brooklyn, New York, is a published author and illustrator of numerous children's books. Ms. Cummings won the American Library Association'S Coretta Scott King Award for My Mama Needs Me and the Boston Globe-Hom Book Award for Talking With Artists. Ms. Cummings owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 11 of 32
24. Plaintiff Erik Grundstrom, a resident of Stockholm, Sweden, is a novelist, shortstory writer, playwright and vice president ofplaintiffSFF. Mr Grundstrom is the former principal ofSkrivarakademin, Sweden's leading school for creative writing, and won the Arnold Rorling literary prize in 1993. Mr. Grundstrom owns the copyright in the book specified in Exhibit A that was, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
25. Plaintiff Angelo Loukakis, a resident of Sydney, Australia, is a novelist, shortstory writer, the author of several non-fiction works, and the Executive Director of Plaintiff ASA. His short-story collection, For the Patriarch, won the New South Wales Premier' s Literary Award and he has served on the Literature Board of the Australia Council. Mr. Loukakis owns the copyright in the book specified in Exhibit A that was, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
26. Plaintiff Helge Renning, a resident of Oslo, Norway, is a professor in the Department of Media and Communication at the University of Oslo, where he has twice served department chairhead. Mr. Renning has published numerous articles on political, economic, and technological aspects of the media, and he has written extensively on copyright and freedom of expression. In 1987, he was a visiting scholar at defendant University of California, at its Santa Barbara campus. He has published numerous articles on political, economic, and technological aspects of the media, and on copyright and freedom of expression. Mr. Renning owns the copyright in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
27. Plaintiff Roxana Robinson, a resident of New York, New York, is a novelist, short story writer and biographer. Four of Ms. Robinson 's works have been Notable Books of the Year by the New York Times, and her work has appeared often in Best American Short
II

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 12 of 32
Stories. Ms. Robinson owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
28 . Plaintiff Andre Roy, a resident of Quebec, Canada, is a poet, literary critic, film critic, and the Vice President ofPlaintiffUNEQ. Mr. Roy won the Canada Council for the Arts Governor General's Poetry Award for Action Writing, and he has twice been a finalist for the award . Mr. Roy owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
29. Plaintiff Jack R. Salamanca, a resident of Potomac, Maryland, is Professor Emeritus of the English Department at the University of Maryland. He is the author of six novels, two of which became movies, and is represented by the John White Literary Agency of Cheshire, Connecticut. Defendant HathiTrust listed his first novel, "The Lost Country," as an "orphan work candidate" with a scheduled release date of November 8, 20 II. Mr. Salamanca owns the copyright in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
30. Plaintiff James Shapiro, a resident of New York, New York, is a Professor of English and Comparative Literature at Columbia University who specializes in Shakespeare and the Early Modern period. Professor Shapiro owns the copyright in the book specified in Exhibit A that, upon information and belief, was unlawfully reproduced, digitized and distributed by Defendants.
31. Plaintiff Daniele Simpson, a resident of Quebec, Canada, is a children's book author, novelist, short story writer, poet, and the President ofPlaintiffUNEQ. Ms. Simpson owns the copyrights in the books specified in Exhibit A that were, upon information and belief, unlawfully reproduced, digitized and distributed by Defendants.
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32. PlaintiffTJ. Stiles, a resident of San Francisco, California, is the author of numerous books about American history. Mr. Stiles won a National Book Award and Pulitzer Prize for his most recent book, The First Tycoon: The Epic Life ofCornelius Vanderbilt. Mr. Stiles owns the copyrights in the book specified in Exhibit A that, upon information and belief, was unlawfully reproduced, digitized and distributed by Defendants.
33. Plaintiff Fay Weldon, a resident of Dorset, England, is an influential novelist, short-story writer, essayist and playwright. She is a professor of creative writing at BruneI University in London and has served as the Chair of Judges for the Booker Prize for Fiction. Ms. Weldon owns the copyrights in the books specified in Exhibit A that, upon information and belief, were unlawfully reproduced, digitized and distributed by Defendants.
University Defendants 34. Upon information and belief, defendants the UM Regents govern the University of Michigan ("UM"), a state university system comprising three campuses with its principal place of business in Ann Arbor, Michigan. UM owns, operates and controls the University of Michigan Library in Ann Arbor (the "MLibrary"), one of the largest university library systems in the United States, holding more than 8.5 million volumes and serving more than 3 million patrons per year. On or about December 14,2004, the UM Regents and MLibrary entered into a Cooperative Agreement with Google to digitize MLibrary's collection. MLibrary is the cofounder, host and primary administrator of Defendant HathiTrust and is its largest contributor, having distributed almost 4.5 million digital volumes to the HDL. MLibrary launched and administers the HathiTrust Orphan Works Project and, unless enjoined by this Court, intends to be the first institution to grant MLibrary's patrons "full view" (as defined below) to digital copies of its orphan works.
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 14 of 32
35. Upon information and belief, defendants the UC Regents govern the University of California ("UC"), a state university system comprising ten campuses with its principal place of business in Oakland, California. UC owns, operates and controls the University of California library system, which includes more than 100 libraries on ten UC campuses and claims to be, collectively, the largest library in the world. On or about August 9, 2006, the UC Regents, on behalf of its California Digital Library ("CDL"), entered into a Cooperative Agreement with Google to digitize UC ' s library books. CDL is a co-founder of HathiTrust and is its second largest contributor, having distributed almost 3 million digital volumes to the HDL. UC announced its participation in the HathiTrust Orphan Works Project on August 24, 2011.
36. Upon information and belief, defendants the UW Regents govern the University of Wisconsin System, a state university system comprising twenty-six campuses, including the University of Wisconsin-Madison ("UW"), with its principal place of business in Madison, Wisconsin. UW owns, operates and controls the UW library system, which has the eleventh largest research library collection in North America with more than 8 million volumes. On or about October 12, 2006, the UW Regents entered into a Cooperative Agreement with Google to digitize UW's library books. UW is a co-founder of HathiTrust and is its third largest contributor, having distributed almost 500,000 digital volumes to the HDL. UW' s participation in the HathiTrust Orphan Works Project became public in June 2011.
37. Upon information and belief, defendants the IU Trustees govern Indiana University ("IU"), a state university system comprising eight campuses with its principal place of business in Bloomington, Indiana. IU owns, operates and controls the IU library system, which includes over 7.8 million books in over 900 languages. IU is a member of the Committee on Institutional Cooperation (the "CIC"), a consortium of the Big Ten universities (including Defendants UM and UW) plus the University of Chicago. On or about June 6, 2007, the IU
14

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 15 of 32
Regents, acting through The Board of Trustees of the University of Illinois on behalf of the CIC, entered into a Cooperative Agreement with Google to digitize IU's library books. IU is HathiTrust's seventh largest contributor, having distributed almost 200,000 digital volumes to the HDL. A fully operational, synchronized and live "mirror site" of the HathiTrust Digital Library is located on IV's Indianapolis campus.
38. Upon information and belief, defendant Cornell University ("Cornell") is a corporation and private land-grant university with its principal place of business in Ithaca, New York. Cornell owns, operates and controls the Cornell University Library, one of the leading academic research libraries in the United States with a collection of almost 8 million volumes. Cornell has been a Google partner since October 2007 and is a member of HathiTrust. Cornell is HathiTrust's fourth largest contributor, having distributed almost 350,000 digital volumes to the HDL. Cornell announced its participation in the HathiTrust Orphan Works Project on August 24,2011.
Defendant HathiTrust 39. Upon information and belief, defendant HathiTrust is a partnership of more than fifty universities, educational institutions and consortia collaborating to create an online repository of their partnering members' digital collections of books and other works. HathiTrust's principal place of business is in Ann Arbor, Michigan. As of October 5, 2011, HathiTrust claimed that its shared digital repository, the HDL, contained 9,709,348 total volumes, amounting to 435 terabytes (445 ,440 gigabytes) of data. HathiTrust admits that approximately 73% of its works (over 7 million volumes) are protected by copyright.
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 16 of 32
GENERAL ALLEGATIONS The Library Exemption Under the Copyright Act
40. Recognizing the tremendous societal value provided by our nation 's libraries and archives in preserving and securing works of art, literature and science, Congress included in the 1976 Copyright Act a special exemption to allow those institutions to engage in the limited reproduction and distribution of in-copyright works that would otherwise violate the exclusive rights of the copyright holders, fair use notwithstanding. Section 108 of the Copyright Act embodies the compromise adopted by Congress following decades of heated debate between authors, publishers and copyright holders, on the one hand, and libraries, on the other.
41. Section 108 specifies the limited circumstances under which libraries are permitted to reproduce and distribute copyrighted works for purposes of preservation, replacement copies and the fulfillment of patron requests. For example, under Section 108(b), a library is permitted to make three copies of any unpublished work in its collection for preservation and security purposes. With respect to published works, Section 108(c) also permits a library make three copies . The copies of published works, however, may only be made to replace a work in the library 's collection that is (or was) damaged, deteriorating, lost or stolen, and only if the library is unable to obtain a new copy at a fair price.
42. Under the original version of Section 108 passed in 1976, libraries were not permitted to make copies of works in "machine-readable," or digital, format. In 1998, Congress passed the Digital Millennium Copyright Act ("DMCA"). Among other things, the DMCA amended Section 108 to permit libraries to make digital copies of unpublished works for preservation purposes and as replacements for published works. The statute, however, placed two restrictions on the permissible use of digital copies:
(a) There can be no further distribution of the digital format; and
16

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 17 of 32
(b) The digital copy cannot be used "outside the premises of the library or archives. "
43. In passing the DMCA, Congress explained the reasons for restricting the libraries' use of digital copies:
In recognition ofthe risk that uncontrolled public access to the copies or phonorecords in digital formats could substantially harm the interests ofthe copyright owner byfacilitating immediate. flawless and widespread reproduction and distribution ofadditional copies or phonorecords ofthe work, the amendment provides that any copy of a work that the library or archive makes in a digital format must not be otherwise distributed in that format and must not be made available in that format to the public outside the premises of the library or archives. In this way, the amendment permits the utilization of digital technologies solely for the purposes of this subsection.
• • •
In the view of the Committee, this proviso is necessary to ensure that the amendment strikes the appropriate balance. permitting the use ofdigital technology by libraries and archives while guarding against the potential harm to the copyright owner's market from patrons obtaining unlimited access to digital copies from any location. S. Rep. Nos. 105-190, at 61-62 (I 998)(emphasis added). 44. Congress also addressed the libraries' desire to make "orphan works" more broadly available to the public. In 1998, Congress added Section 108(h) to the Copyright Act in response to libraries' concerns that the twenty-year extension granted to copyrights through passage of the Copyright Term Extension Act would deprive the public of the availability of older, out-of-print works that otherwise would have been placed in the public domain. Section I 08(h) permits libraries to reproduce, distribute and perform published copyrighted works that are in the last 20 years of their copyright term and are not commercially exploited or otherwise reasonably available during the extended term.
17

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45. Notwithstanding the more expansive reproduction and distribution rights granted to libraries, in Section 108(g), Congress made clear that those rights "extend only to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions[.)" Libraries are expressly prohibited from "engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords ofthe same material" or "the systematic reproduction or distribution of single or multiple copies or phonorecords..." 17 U.S.C. § I08(g)(I) and (2).
46. Since the 1998 updates, significant efforts have been made to further amend Section 108 to address the preservation practices oflibraries in an increasingly digital environment. For example, in 2005, the Library of Congress, in cooperation with the U.S . Copyright Office, sponsored a "Section 108 Study Group" to prepare findings and make suggestions to the Library of Congress for modifications to Section 108 to reflect new technology. On March 31, 2008, the Group released its final report, which recommended, among other things, that Section 108 be amended to expand a library'S right to create and store digital copies of published works in their collections for preservation purposes.
47. Despite receiving numerous recommendations from the Section 108 Study Group and other interested parties, since 1998, Congress has not amended Section 108. The Universities Engage in Systematic Digitization of Copyright Works
48. In blatant derogation of Plaintiffs' exclusive rights under Section 106 and the express regulations governing libraries' rights under Section 108 of the Copyright Act, Defendants have engaged in a concerted, systematic and widespread campaign to digitize, reproduce, distribute and otherwise exploit millions of copyrighted works in their libraries without permission from the copyright holders associated with those works.
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 19 of 32
49. On December 14,2004, Google announced that it was working with four U.S. libraries, including MLibrary, to digitally scan books from their collections. Upon information and belief, partnerships between Google and other universities and institutions followed over the next several years, including partnerships with UC on or about August 9, 2006, UW on or about October 12, 2006, IU (through its membership in CIC) on or about June 6, 2007 and Cornell on or about August 7, 2007. Since commencing the digitization project, Google and its partners have digitized more than 12 million books.
50. Upon information and belief, pursuant to separate Cooperative Agreements entered into by Google and each University, the parties cooperate to identify books from the University's collection to be digitized. The books selected for digitization are not limited to works in the public domain, unpublished works or deteriorating published works that cannot be replaced, but include in-print books that are commercially available and are protected by copyright. The University then collects the works and has them delivered to a facility located either on or off the school's campus that is occupied by Google personnel and scanning equipment.
51. Upon information and belief, Google is responsible for digitizing the content of the works. After a work has been digitized, Google retains at least one copy for commercial exploitation through "Google Books," an online system that allows users to search the content and view "snippets" of millions of digitized books.
52. Upon information and belief, Google also provides a digital copy of the work to the University. The digital copy comprises a set of scanned image files, files containing the text of the work extracted through optical character recognition ("OCR") technology, and data associated with the work indicating bibliographic and other information. By creating both scanned image files of the pages and a text file from the printed work, the digitization process,
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 20 of 32
and each subsequent copy thereof, includes two reproductions of the original. After digitization, the original works are returned to the source library.
53. In light of the high-priced and sophisticated scanning technology and amount of staff required to digitize the works, the digital copies obtained by the Universities carry significant economic value. Prior to Google's involvement, libraries estimated their costs of digitization at approximately $ 100 per volume. Thus, the value of the digitization project is measured in the hundreds of millions of dollars.
54. Upon information and belief, certain Universities, including MLibrary, also digitize works in their collections, including copyrighted works, "in-house," meaning they create digital copies of works using their own equipment and persofUlel and without Google's assistance.
55. Neither Google nor the Universities obtained permission from the vast majority of copyright holders to digitize their books. Google Books Lawsuit
56. On September 20, 2005, the Guild and several published authors filed a class action lawsuit against Google in the United States District Court for the Southern District of New York (the "Google Books Lawsuit"), alleging that Google's digitization and commercial exploitation of copyrighted works constituted massive copyright infringement. See The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 Civ. 8136 (S.D.N.Y.).
57. On October 28,2008, after extended negotiations, the parties filed a proposed settlement agreement to resolve the dispute. On November 13,2009, the parties filed for final court approval an Amended Settlement Agreement (the "ASA"), pursuant to which, inter alia, Google agreed to compensate authors and publishers in exchange for the right to make the digitized books available to the pUblic. If approved, the ASA would have established a "Book
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 21 of 32
Rights Registry" to maintain a database of copyright holders and administer distributions of revenues. The ASA also would have created an "Unclaimed Works Fiduciary" to represent the interests of unclaimed, or "orphan," works, and offered a framework to make orphan works available to the public.
58. On March 22, 2011, the ASA was rejected, with now Circuit Judge Denny Chin concluding that "[w]hile the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far." Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 669 (S.D.N.Y. 2011).
59. One of Judge Chin' s chiefrationales for rejecting the ASA was his concern that "the establishment of a mechanism exploiting unclaimed books is a matter more suited for Congress than this Court." The Court reasoned:
The questions ofwho 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." Id. at 677. 60. The Court noted "longstanding efforts" by Congress to pass legislation to address the orphan works problem, including "Orphan Books" bills that were proposed in 2006 and 2008 but were never enacted. Id. at 678. The Court also concluded that the ASA raised significant international law concerns. 61. The Google Books Lawsuit is still pending in this Court. HathiTrust 62. On October 13, 2008, the thirteen universities comprising the CIC, led by MLibrary, the UC library system, led by the CDL, and the University of Virginia announced the launch of HathiTrust to construct a shared repository of their combined digitized collections.
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 22 of 32
HathiTrust soon expanded to include over fifty universities, consortia and research institutions from around the world. According to its website, HathiTrust's mission is "to contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge."
63 . Upon information and belief, members of HathiTrust "contribute" to the HathiTrust Digital Library digital copies of works in their libraries that were scanned by Google, other organizations such as the Internet Archive, or the libraries' own staff. In derogation of the restrictions of Section 108 on the number of digital copies libraries are permitted to make, HathiTrust members copy, rather than transfer, their digital works to HathiTrust, meaning that at least two further reproductions are made (one image file, one digital-text OCR file) when a digital object is delivered to HathiTrust. Upon information and belief, digital objects are generally copied to HaithiTrust by uploading the files over the Internet or delivering them on removable media.
64. Upon information and belief, the "ingestion" of digital works and their associated metadata into the HDL is performed at MLibrary. As explained below, the digital objects are then replicated to HathiTrust's active mirror site located on IU's Indianapolis campus, and stored on backup tapes located at different UM facilities.
65. Upon information and belief, HathiTrust thereafter provides three primary services to its constituent members, their patrons and the general public.
66. First, HathiTrust provides a clustered storage system to hold more than 435 terabytes of combined digital files deposited to date by HathiTrust's 50+ members. Upon information and belief, HathiTrust's storage architecture employs two synchronized instances of server farms (each including at least two web servers, a database server and a storage cluster), with the primary site located at UM's Ann Arbor, Michigan campus where ingestion occurs, and
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 23 of 32
a redundant mirror site located at IU's Indianapolis campus. HathiTrust also routinely creates tape backups of all data contained in the HDL. The tapes are stored at a different facility on UM's campus and, upon information and belief, these tapes are replicated and the copies are stored at yet another facility on UM's campus. Thus, once a University distributes a digital object to the HDL, at least eight digital copies of the work (four image files, four digital-text OCR files) are generated.
67. Second, according to HathiTrust's website, "HathiTrust provides secure, reliable, long-term preservation for deposited materials." Upon information and belief, HathiTrust preserves and secures not only unpublished or difficult-to-replace published works as permitted by Sections 108(b) and (c) of the Copyright Act, but also works that are in-copyright, published and commercially-available.
68. Third, HathiTrust provides a variety of tools to allow its users to access content in the HDL. For example, all users may search and identify bibliographic information (title, author, subject, ISBN, publisher, and year of publication) for the works contained in the HDL. HathiTrust also permits all users to search the entire text of all works in the HDL (including public domain and in-copyright works) to determine the number of times and page location(s) of any keyword or phrase found in a book.
69. In addition, HathiTrust permits users to view, search, print and download full copies of certain volumes in the HDL. Whether a user may access this "full view" of a digital object is determined by the identity of the user seeking access to the work (e.g., whether the user is from a HathiTrust university), and the work's purported copyright status according to the "HathiTrust Rights Database."
70. The HathiTrust Rights Database specifies the purported copyright status of each work in the HDL, as determined through automated and manual processes conducted by
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 24 of 32
HathiTrust, including whether the work is (i) in the public domain, (ii) in-copyright, (iii) incopyright but has been authorized for certain uses by the associated rights holder, (iii) incopyright but too brittle to circulate, (iv) of unknown copyright status, or (v) an orphan work. For example, UM students, faculty and patrons of MLibrary, wherever they may be located worldwide, may obtain "full view" access of works that are specified as being in the public domain and originated from MLibrary.
7J. Upon information and belief, the HDL is capable of providing public access to the "full view" of every digital object in the database, even if access is purportedly restricted by settings in the HathiTrust Rights Database. Thus, if the copyright status of a work is misidentified in the HathiTrust Rights Database, the HDL malfunctions or a user obtains unauthorized access to the HDL, the work may become fully viewable, printable and downloadable by the general pUblic.
72. In all, through their systematic and concerted digitization efforts, the Universities and HathiTrust are responsible for the creation of at least twelve unauthorized digital copies (six image files, six digital-text files) of every physical work in their libraries that is selected for digitization: two copies for Google, two copies for the originating University, two copies for the HOL servers at UM, two copies for the HDL servers at IU and two tape backups of the image and digital text files at separate UM facilities. Each pair of digital copies is stored at a different location and is accessible by different individuals. It is likely that additional copies are made at some or all of the locations. HathiTrust Orphan Works Project
73. On May 16,2011, MLibrary announced the launch of the HathiTrust Orphan Works Project - an initiative to identify so-called orphans amongst the in-copyright works in the HDL, with an initial focus on works published in the United States between 1923 and 1963.
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John Wilkin, executive director of HathiTrust, published an article estimating that as many as 50% of the volumes in the HDL may be " orphan works."
74. To identify an in-copyright work as a work HathiTrust will treat as an "orphan," the HathiTrust Orphan Works Project purports to follow a multistep due diligence process to check whether the work is commercially available for sale and, if it is not, to attempt to locate and contact the copyright holder. If HathiTrust fails to contact the copyright holder, it then lists the bibliographic information for the work on the HathiTrust Orphan Candidates webpage for ninety days. If no copyright holder emerges during that time, the work will become available for "full view" on HathiTrust to UM's students, professors and other authenticated users and visitors to the libraries at UM's campuses, allowing them to view, download and print the entire copyrighted work.
75. In July and August 2011 , other HathiTrust members, including Defendants UW, UC and Cornell, announced their participation in the HathiTrust Orphan Works Project and their intent to make works in their collections identified as HathiTrust Orphans available to their respective students, faculty and library patrons.
76. The first list of HathiTrust Orphan Candidates was posted on the HathiTrust website on or about July 15,2011.
77. The initial complaint in this action was filed on September 12,2011. The filing of the complaint directly led to the identification and emergence of numerous authors and copyright holders whose works were scheduled to become available for "full view" on HathiTrust beginning October 13, 2011 .
78. On September 16, 2011, MLibrary announced that "[tJhe close and welcome scrutiny of the list of potential orphan works has revealed a number of errors, some of them serious," and that "we have already begun an examination of our procedures to identify the gaps
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 26 of 32
that allowed volumes that are evidently not orphan works to be added to the list." MLibrary promised, however, that it would "proceed with the work" without specifying a date certain.
79. Unless enjoined by this Court, copyright protected works deemed to be orphans by the HathiTrust process will become available for "full view" to hundreds of thousands of users affiliated with the Universities.
CLAIM FOR RELIEF SO. Plaintiffs incorporate by reference paragraphs I through 79 as if set forth herein. S!. Plaintiffs' copyrights specified in Exhibit A are valid and enforceable. S2. By scanning, creating multiple digital copies of and distributing copyrighted works - including without limitation each of Plaintiffs' copyrighted works identified on Exhibit A - on a systematic, continuous and unauthorized basis, Defendants have violated and are continuing to violate Section 108 of the Copyright Act and have infringed and are continuing to infringe Plaintiffs' copyrights and exclusive rights under Section 106 of the Copyright Act. 83. Defendants' infringing acts have been and continue to be willful, intentional and purposeful, in disregard of the rights of Plaintiffs. 84. Defendants' conduct has caused, is causing and, unless enjoined by this Court, will continue to cause Plaintiffs great and irreparable injury that cannot be remedied with money. Plaintiffs have no adequate remedy at law. 85 . An actual controversy presently exists between the parties regarding whether Defendants' ongoing, systematic digitization of copyrighted works without authorization and their threat to imminently display the HathiTrust Orphans without authorization constitute and, unless enjoined by this Court, will constitute violations of Sections 106 and 108 of the Copyright Act.
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 27 of 32
86. Because of Defendants' actions and threatened actions as described herein, including the threat by Defendants HathiTrust and UM to begin displaying copyrighted HathiTrust Orphans, there is a substantial controversy between the parties with adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
87. Plaintiffs are entitled to prospective, injunctive and declaratory relief to enjoin Defendants from their continuous, ongoing and threatened violations of federal copyright law as described herein.
DEMAND FOR RELIEF WHEREFORE, Plaintiffs demand that: (a) Pursuant to 28 U.S.C. § 2201, this Court declare that:
(i) Defendants' systematic digitization and distribution of copyrighted materials without authorization constitutes unlawful copyright infringement in violation of Sections 106 and 108 of the Copyright Act;
(ii) Defendants' distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected;
(b) Pursuant to 17 U.S.C. § 502, this Court issue an injunction enjoining Defendants from:
(i) systematically reproducing, distributing and/or displaying Plaintiffs' or any other copyrighted works without authorization except as specifically provided by 17 U.S.C. § 108;
(ii) providing to Google for digitization copyrighted works without authorization;
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Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 28 of 32

(iii) proceeding with the HathiTrust Orphans Work Project, including without

limitation, from displaying, distributing or otherwise making available any

so-called orphan work protected by copyright.

(c) Pursuant to 17 U.S.C. § 503 , this Court order the impoundment of all

unauthorized digital copies of works protected by copyright within Defendants' possession,

custody or control, including works whose copyrights are held by Plaintiffs, to be held in escrow

under commercial grade security, with any computer system storing the digital copies powered

down and disconnected from any network, pending an appropriate act of Congress.

(d) Pursuant to 17 U.S .C. § 505, this Court award Plaintiffs their attorneys' fees and

costs; and

(e) Plaintiffs be granted such other relief as may be deemed just and equitable.

Dated: New York, New York October 5, 20 II

FRANKFURT KURNIT KLEIN &SELZ, P.C.
BY:_(_~_----,-'_~---'~' -'_-Edward H. Rosenthal, Esq. Jeremy S. Goldman, Esq.

488 Madison Avenue New York, New York 10022 Tel.: (212) 980-0120

Attorneys for Plaintijft

28

COPYRIGHT HOLDER TITLE

EXHIBIT A
.
~UBLISHER

Authors League Fund
Trond Andreassen
Pat Cummings Pat Cummings Pat Cummings Pat Cummings Pat Cummings Pat Cummings Erik Grundstrom Angelo Loukakis Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson Roxana Robinson

Good troupers all: the story of Joseph Jefferson Bok-Norge : en litteratursosiologisk oversikt
C.L.O.U .D.S .
Clean Your Room, Harvey Moon!
Jimmy Lee Did It
Talking With Artists: Volume I Talking With Artists: Volume 2 Talking With Adventurers Oss malvakter emeIIan
Vernacular Dreams
Summer light Georgia O'Keeffe : a life A glimpse of scarlet and other stories A glimpse of scarlet and other stories Asking for love and other stories Sweetwater: a novel

Macrae Smith Company
Universitetsforiaget
Lothrop, Lee & Shepard Books Bradbury Press Lothrop, Lee & Shepard Books Bradbury Press
Simon & Schuster Books for Young Readers National Geographic Society Alba University of Queensland Press Viking Harper & Row E. Burlingame Books
HarperPerennial
Random House Random House

PUB. DATE
1945
2000
1986 1991 1985 1992 1995 1998 1988 1986 1988 1989 1991 1992 1996 2003

U.S. COPYRIGHT
REGISTRATION No.
A189587

DEFENDANT UNIVERSITY
University of California

University of Michigan

TXOOO1806038 TXOO03159777 TXOOO1650936 TXOO03422950 TXOO04242559 V A000093246I V AOOO0932460
TXOOO1967553 TXOO02346979 TXOO02736171
TXOO04268621 TXOO05905727

University of Michigan University of Michigan University of Michigan
University of Michigan
University of Michigan
University of California Universi!y'of Wisconsin University of Michigan University of Michigan Universi!y of Michigan University of Michigan University of Michigan
University of Michigan University of Michigan

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 29 of 32

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 30 of 32

-

-

COPYRI.GHT HOLDER TITLE

PUBLISHER

\ ' '"., .." " .... 0. f• •

Roxana Robinson
Helge Ronning
Helge Ronning
Andre Roy
Andre Roy J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca J.R. Salamanca James Shapiro Daniele Simpson
TJ. Stiles

A perfect stranger: and other stories Den umulige friheten : Henrik Ibsen og moderniteten Doosdom over et folk? : imperialismen og Biafrakonflikten Marguerite Duras II Montreal Marguerite Duras II Montreal Southern light: a novel Embarkation The lost country: a novel A sea change That summer's trance: a novel Lilith Lilith Embarkation The lost country: a novel A seachan~e Southern light: a novel Oberammergau Je cours plus vite que la lycose : poemes Jesse James: last rebel of the Civil War

Random House Gyldendal

Pax

Spirale

Editions Spirale
Knopf Knopf Simon & Schuster KnoQf
Welcome Rain
Simon & Schuster Simon & Schuster Knopf Simon & Schuster Knopf Knopf Pantheon Books
Naaman

A.A. Knopf

-

--

PUB. DATE
2005

U.S. COPYRIGHT
REGISTRATlONNo. DEFENDANT UNIVERSITY
University of Michigan

2006

University of Wisconsin

1969

1984
1981
1986 1973 1958 1969
2000
1961 1961 1973 1958 1969 1986 2000
1983
2002

TXOOOl800562 REOOO0313041
REOOO0459151 RE0000459151 REOOO0313041 TXOOO 1800562 TXOO05234556
TXOO03959406

University of California
University of Michigan
University of California University of Michigan University of Michigan University of Michigan University of Michigan
University of Michigan
University of Michigan University of California University of California University of California University of California University of California University of Michigan University of Wisconsin
University of Michigan

2

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 31 of 32

COPYRIGHT HOLDER
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon Fay Weldon
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon
Fay Weldon
Fay Weldon Fay Weldon
Fay Weldon
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon

TITLE

.' '" . ~. ...

--

Watching me, watching you Praxis: a novel Puffball : a novel Remember me The heart ofthe country The hearts and lives of men The rules of life The Shrapnel Academy The heart of the country Sacred cows The fat woman'sjoke The cloning of Joanna May Little sisters Darcy's utopia The cloning of Joanna May Moon over Minneapolis, or, Why she couldn't st~ Life force Growing rich Life force Trouble Affliction
~itti~
Wicked women: stories Leader of the band Growillg rich

'PUBLISHER

", .

Summit Books
Summit Books Summit Books Random House Hutchinson
Heinemann
Hutchinson
Viki~ Viki~
Chatto & Windus Academy Chicago
Collins
Chivers Press Collins
Penguin Books

HarperCo llins
Viking HarperCollins HarperCollins PeI1gUin Books
H~rCollins Flami~o
The Atlantic Monthly Press
Pe~inBooks Flami~o

PUB. DATE
1981
1978 1980 1976 1987
1987
1987 1987 1988 1989 1986
1989
1987 1990
1991
1991
1992 1992 1992 1994 1993 1995 1997 1990 1992

U.S. COPYRIGHT
REGISTRATION No. DEFENDANT UNIVERSITY

TXOOO0907715

University of Michigan

TXOOOO161661 TXOOO0550383
TXOO02580673 TXOO02176563 TXOO02139543 TXOOO1967142 TXOOO2580673
TXOO02728206
TXOO02931605

University ofMich,i&an , University of Michigan University of Michigan University of Michigan I
I University of Michigan
University of Michigan Universi~of Mich,i&an Universi,!r of Mich,i&an Universi,!y of Mich,i&an Universi~of Michigan
I University of Michigan
University of Michigan ! Universi~ of Mich~an

TXOO02728206

University of Michigan
I

TXOO03114513

University of Michigan

TXOOO3274167
TXOOO3274167 TXOO03682496
TXOO04084784 TXOO04578645 TXOO02560295

University of Michigan University of Michigan Universi~of Michi~an Universi~of Michigan University of Michigan University ofMich~an University of Mich~an Universi~of Mich~an University of Michigan

3

Case 1:11-cv-06351-HB Document 4 Filed 10/06/11 Page 32 of 32

COPYRIGHT HOLDER
Fay Weldon
Fay Weldon
Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon Fay Weldon

-
TITLE

The hearts and lives of

men

A hard time to be a father

: a collection of short

stories

Life force

Nothing to wear and

nowhere to hide: stories

Big women

Godless in Eden : a book

of essays

Rhode Island blues

The Bulgari connection

Auto da fay

Flood warning: a_play

Wicked women : stories

Mantrapped

She may not leave

The spa decameron

The hearts and lives of

men

Big women

Life force

Worst fears

-- -

-

----

PUBLISHER

.

Flamingo

Flamingo
HarperCollins
Flamingo
Flamingo
Flamingo
Flamingo Flamingo Flamingo Samuel French The Atlantic Month!yPress Fourth Estate Fourth Estate Quercus
Heinemann
Flamingo Penguin Books Flamingo

PUB. DATE
1992
1998
1992
2002
1997 1999
2000 2001 2002 2003 1997 2004 2005 2007
1987 1997 1993 1996

U.S. COPYRIGHT
REGISTRATION No.
TXOO02176563

DEFENDANT UNIVERSITY
University of Michigan

TXOO03274167
TXOO04843655
TXOO05335279
TX0005741 087 PAOOO1247989 TXOO04578645
TXOO06444289 TX00071389 I 1 TXOO02176563 TXOO04843655 TXOO03274167 TXOO04405886

University of Michigan
Universit~of Michigan
University of Michigan
University of Michigan
University of Michigan
Univers~ of Mich~an Universi!i:.of Michigan University of Michigan Universit~of Michigan Universi!i:.of Michigan Universi!i:. of Michigan Universi!i:. of Mich~an Universi!i:. of Michis.an
University of California
University of California University_ of California University of California

4

 
 Case 1:11-cv-06351-HB Document 33 Filed 12/21/11 Page 1 of 4

KILPATRICK TOWNSEND 4 STOCKTON LLP
J o . PeterSen (JP 9071) Robert N. p~ (R.P 5757)
31 West S2nd street
14th Floor New York, New YOIt 10019 Telephone: (212) 775-8700 Facsimile: (212) 775·8800

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED DOC#:
~~--rml-7'i4-l~~
DATE FILED:

Joseph M. Beck (admitted pro hoc vice)
Alex Fonoroff(adarlttedpro hIM; vice) Andrew Pequignot (admitted pro hIM; vice)
Allison Scon R.olJeh (admitted pro hoc vice)
1J00 Peachtree Street Suite 2800 Atlanta. Georgia 30309....530
Telephone: (404) 815-6500 Facsimile; (404) 81S-6SSS

Attorneysfor Defondont3

UNITED STATES DISTRICT COURT SOUTIIERN DISTRICT OF NEW VORK

TIfB AUTHORS GUILD, INC., el al.

Plaintiffs,

v.

11 CIV 6351 (HB)(JLC) 


HATInTRUST. et aI.

STIPULATION 


Defendants.

WHEREAS, on or about October 6,2011, plaintiffs filed an Amended Complaint (the "Amended Complaintj in the above-captioned action (the "Actionj naming, among other defendants, Julia Donovan Darlow, Laurence B. Deitch, Denise Hitch, Olivia P. Maynard, Andrea Fischer Newman, Andrew C. Richner, S. Martin Taylor and Katherine E. White (coJlectively, the "Michigan Regentsj. Richard C. Blum, David Crane. William De La Pena, Russell Oould. Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica

Case 1:11-cv-06351-HB Document 33 Filed 12/21/11 Page 2 of 4
Lozano" Hadi Makarechian, George M. Marcus. Alfredo Mireles, Jr., Norman 1. Patti2:, BoDDie
Roiss, Fmi Ruiz, Leslie Taug Sohilling. Bruoe D. Varner, Paul Wachter and Charlene Zettel (collectively, the"Califomia Regents"). Jeffrey Bartell, Mark J. Bradley, Judith V. Cmin, John Drew. Tony Evers. Michael 1. Falbo. Edmund ManydeedS. Katherine ~ointer, Charles Pruitt,
Troy Sbcrven, Brent Smith, Michael J. Specter, S. Mark Tylc. Jose F. Vasquez and David O.
Walsh (collectively. the "Wisconsin Reaents"). William R. Cast. Patrick A. Shoulders. Maryellen Kiley Bishop, Bnwe Cole, Philip N. Eskew, Jr•• Cora J. Griffin, Thomas E. Reilly, Jr., Derica W. Rice and William H. Strong (collectively, the "Indiana Trustees") (all ofthe foregoing
named individuals, collectively. the "IUdividual Defendants");
WHEREAS. the defendants in the Action (including the Individual Defendants) served their answer on December 2, 2011 (the "Answer").
WHEREAS, the defendants warrant and represent that "HatbiTrust" is the name of a service of the University of MiChigan in which the Universities and other institutions participate lmder agreements with UM (the "Hathitrust Service"); and
WHEREAS, in lieu of engaging motion practice on the issue of whether the Individual Defendants are sufficiently involved in the alleged activities set forth in the Amended ~mplaint to support jurisdiction under Ex Parte Young, 209 U.S•. 123. 28 S.Ct. 441, 52 L. Ed. 714 (1908) and its progeny, plaintiffs and defendants have agreed to substitute certain other individuals in the place and stead ofthe Individual Defendants in the Action.
NOW THEREFORE. IT IS HEREBY STIPULATED AND AGREED, by and between plaintiffs and defendants. as follows:
1. The Individual Defendants are hereby dismissed from the Action with prejudice.
2
~:I04'OOU

Case 1:11-cv-06351-HB Document 33 Filed 12/21/11 Page 3 of 4
2. Mary Sue Coleman, President, The University of Michigan, is herdly
substituted as a named defendant in the Action in the place and stead ofthe Micbigau Regents.
3. Made O. Yudof, President. The University of California, is hereby substituted as anamed defeDdant in the Action in the place and stead of the California Regents.
4. Kevin Reilly, President, 'The University of Wisconsin System, is hereby substituted as a named defendant in the Action in the place and stead ofthe Wisconsin Regeots.
S. Michael McRobbie, President. Indiana University. is hereby substituted as a named defendant in the Action in the place and stead oftbe Indiana Trustees.
6. In view of the substitutions set forth above, tbe individuals substituted in . the place and stead of the Individual Defendants (the "Substituted Defendants") agree not to challenge the Amended Complaint on the grounds that the Substituted Defendants are not sufficiently involved in the alleged activities set forth in the Amended Complaint to support
jurisdiction under Ex Parte Young, 209 U.S. 123. 28 8.6. 441, 52 L. Ed. 714 (1908) and its
progeny. Eacl1 Substituted Defendant represents that he or she bas the authority and control necessary to cause his or her respective university to comply with the terms of an injunction or other court order with respect to the alleged activities set forth in the Amended Complaint in the event the Court orders such relief. Further, Mary Sue Coleman represents that she has the authority and control necessary to cause the Hathitrust Service to comply with the terms of an injunction or other court order with respect to the aUeged activities set forth in the Amended Complaint in the event the Court orders such relief.
7. Nothing in this StipUlation shall impair any defenses not expressly addressed herein inc:luding. without limitation. all defenses under the 11th Amendment of the United States Constitution (for example, and solely for illustrative purposes, the Substituted
3

Case 1:11-cv-06351-HB Document 33 Filed 12/21/11 Page 4 of 4

Defendants reserve their right of qualified immunity under the discretiODBl')' fi.mctions doctrine and reserve the right to argue that alleged infrlnscment of copyrights does not constitute a violation offederal law for purposes ofEx Parte Young).
8. The caption in the Amended Complaint is deemed amended to reflect the substitution ofthe Substituted Defendants in the place and stead of the Individual Defendal1ts. It lIS agreed among the parties that the operative complaint in the Action is the Amended Complaint and that the operative answer is the Answer and that the parties shaU not be obligated

to, nor shall they, serve an amended complaint or answer reflecting the dismissal of the

Individual Defendants and/or the substitution of the Substituted Defendants.

Dated: New Yark, })few York December .f!, 2011

FRANKFURT KVRNIT KLEIN &; SELZ,P.C.

KILPATRICK T['!nMENlIl4 STOCKTO p

By: ~'J rl... \-' ~ ~;-...~ Edward H. Rosenthal (ER-8022) Jeremy S. Goldman (J0-7402) 488 Madison Avenue New York, NY 10022 (212) 980-0120

By: __~~~~~~==_____

oSeph Petersen (JP-9071)

.

lit

31 West 52" Street,]4 Floor

New York, New York 10019

(212) 775-8700

Attorneysfor Defendants

4

 
 Case 1:11-cv-06351-HB Document 27 Filed 12/12/11 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., et aI., Plaintiffs,
v.
HATHITRUST, et aI., Defendants.

Case No. II-cv-6351(HB)
NOTICE OF MOTION TO INTERVENE
ORAL ARGUMENT REQUESTED

PLEASE TAKE NOTICE that upon the annexed Declarations of Daniel F. Goldstein, SWOI'll to December 6, 20 II; Dr. Marc Mauer, SWOI'll to December 6, 20 II, Georgina Kleege, SWOI'll to December 5, 2011, Blair Seidlitz, SWOI'll to December 6,2011, and Courtney Wheeler, SWOI'll to December 6, 201l; the accompanying Memorandum of Law in Support of the Motion of the National Federation ofthe Blind, Georgina Kleege, Blair Seidlitz and Courtney Wheeler (collectively, "Proposed Intervenors) to Intervene as Defendants in this action; andall'prior pleadings herein, Proposed Intervenors will move this Court, before the Honorable Harold Baer, United States District Court Judge, in Courtroom 23B, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10017-1312, on the date and time to be set by the Court, for an order pursuant to Rule 24 ofthe Federal Rules of Civil Procedure permitting Proposed Intervenors to intervene as defendants in this action.
PLEASE TAKE FURTHER NOTICE that answering papers, ifany, shall be served upon the undersigned no later than December 23, 20 II.

Case 1:11-cv-06351-HB Document 27 Filed 12/12/11 Page 2 of 3

Dated: New York, New York December 9, 2011

Respectfully submitted,

THE LAW OFFICE OF ROBERT J. BERNSTEIN

By:

lsi

Robert J. Bernstein eRB 4230)

380 Lexington Avenue, 17'1i Floor

New York, NY 10168

Telephone: (212) 551-1068

Facsimile: (212) 551-1001

COllnselfor Proposed Intel1'enors

The National Federation ofthe Blind,

Georgina Kleege, Blair Seidlitz and

Courtney Wheeler

OF COUNSEL:

Daniel F. Goldstein Laura Ginsberg Abelson BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street Suite 1700 Baltimore, Maryland 21202 Telephone: 410-962-1030 Facsimile: 410-385-0869 dfg@bl'Owngold.com labelson@bl'Owngold.com

and PETERJASZI 5402 Surrey Street Chevy Chase, Maryland 20815 Telephone: 301-656-1753 Facsimile: 301-656-7483 pjaszi@wcl.american.edu

TO:

Edward H. Rosenthal Jeremy S. Goldman FRANKFURT KURNIT KLEIN & SELZ, P.C. 488 Madison Avenue New York, NY 10022 Attorneysfor Plaintijft
2

Case 1:11-cv-06351-HB Document 27 Filed 12/12/11 Page 3 of 3
and Joseph Peterson KILPATRICK TOWNSEND & STOCKTON LLP 31 W. 52nd Street, 14th Floor New York, NY 10019 Joseph M. Beck W. Andrew Pequignot Allison Scott Roach KILPATRICK TOWNSEND & STOCKTON LLP Suite 1800 1100 Peachtree Street Atlanta, GA 30309-4528 Attorneys for Defendants
CERTIFICATE OF SERVICE I HEREBY CERTIFY, under penalty of peljury, that the foregoing Notice ofMotion to Intervene ofNational Federation of the Blind, Georgina Kleege, Blair Seidlitz and Courtney Wheeler; the accompanying Declarations of Daniel F. Goldstein, Dr. Marc Mauer, Georgina Keege, Blair Seidlitz and Courtney Wheeler in support thereof; and the accompanying Memorandum in Support of the Motion of the National Federation ofthe Blind and Others to Intervene as Defendants, are being filed electronically today, and that, upon such filing, pursuant to this Court's Local Rules and ECF procedures, these documents shall be served electronically on the above-referenced attorneys for plaintiffs and for defendants at their respective email addresses registered with the Court's ECF system.
lsI
Robert J. Bernstein
3

Case 1:11-cv-06351-HB Document 27-1 Filed 12/12/11 Page 1 of 6
Exhibit A

Case 1:11-cv-06351-HB Document 27-1 Filed 12/12/11 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF N~W VORI<

THE AUTHORS GUILD, INC., et al., Plaintiffs,
v. HATHITRUST, at al.,
Defendants.

Case No. l1-cv-G351(HB)

DECLARATION OF DR. MARC MAURER I, Marc Maurer, do hereby declare that: ' 1. I am over eighteen years of age and am competent to make this Declaration,
, 2. My business address Is 200 East Wells Street at Jernigan place"Baltlmore, Maryland 21230. 3. I am legally blind. 4. I am the President ofthe National Federation ofthe Blind, a position I have held since 1986. 5. I am also an attorney, licensed to practice In Maryland, Indiana, Ohio, Iowa and
am a member of the bar of the Supreme Court of the United stales.
6. The National Federation of the Blind Is the oldest and largest membership organization of blind people In the United States, with more than 50,000 membel·s. Through our affiliates In each of the fifty states, the District of Columbia, and 'Puerto Rico, and our 700 local chapters, we seek to advance the rights of blind people by helping both the blind and the
1
.;

Case 1:11-cv-06351-HB Document 27-1 Filed 12/12/11 Page 3 of 6
sighted to understand that blindness, In and of Itself, need not be a tl'~gedy, The real problem of blindness Is not loss of eyesight, but misunderstandings and misconceptions about It that are prevalent in society, With propel' training and opportunity, blindness can be re~uced to the level of a mere physical nuisance,
7. Unlike the NFB, most other organizations that advocate on behalf of people with print disabilities are not membership organl~atlons, Of those groups that are membership organizations, the NFB Is one of the few that chooses to use litigation as an advocacy tool or has the resources to do so.
B. A person with a print disability Is someone who cannot effectively read print because, of a visual, physical, perceptual, developmental, cognitive, or learning disability.
9. Because of Its unique position among peer organizations, the NFB has tallen the lead In promoting the creation of accessible digital tecl)nology and Information. NFB has long espoused creating the sal)1e access to Information that other Americans enjoy on functionally equal terms. For example, In the 1970's, NFB financed Ray Kurzwell's development of a reading machine for the bllnd-a machine that converted printed text Into digital text that could be read aloud by a synthetic voice. I~ 1998, NFB memberGeorge Kerscher developed Talklllg Books, the first commercially available digital books for the blind.
10. Equal access to all of the same Information is technologically within reach. Because digItal Information Is slrnply a series. of zeros and ones, It Is not Inherently visual. Ifthe creators of digItal Information are conscious of accessibility, It becomes no more difficult to, create digital information that can be manifest audibly or tactllely than to create Information that Is only visual.
2

Case 1:11-cv-06351-HB Document 27-1 Filed 12/12/11 Page 4 of 6
11. To access print material, I use all of the tools available to me and other blind people, Although I read conventional braille, I also use screen access software, which transmits textual Information on a computer screen Into an audio output or a refreshable braille display pad. When digital text Is coded properly with metadata, that provides organizational Information about the text, my screen reader will also read that Information, which allows me more complete Information and a way to navigate within a document.
12. There are a very limited number of print works that are available to be borrowed by blind Americans either In braille or In a digital format that can be accessed by a screen reader, The primary source of reading material for most blind Americans Is the National Ubrary Service for the BI.lnd and Physically Handicapped of the Library of Congress. While this service has done, an outstanding job of providing books to the blind within budgetary constralpts, It
'"
only has approximately 52,000 Circulating titles In Its collection and can only create approximately 2,ooo'new titles each yeaI', BooKshare", another authorized entity under \he Chafee Amendment, has a collection of tens of thousands of titles, according to Its website: www.booi<share.org,
13. The lad( of print Information available to blind Americans has devastating effects. Fewer than fifty percent of blind Americans graduate from high school. Those who do graduate and matriculate at colleges and universities are blocked, a~ a practical matter, from taking many courses ofthelr choosing.
14, The HathiTrust Digital Library stands to change the landscape of access to Information and education fOl' blind Americans. T~e more than 9,000,000 million titles In that collection are a far c~y from the tens of thousands Qf titles available from the National Library
3

Case 1:11-cv-06351-HB Document 27-1 Filed 12/12/11 Page 5 of 6
Service or Bool<share". To serve the most people, and given the time constraints and expense' of creating accessible copies of print materials, both of those entitles must choose titles that have wide popular appeal. Consequently/ those collections contain few academic books or Journals. By contrast/ the HafhlTrust's collection Includes academic works, which are cl'ltlcal educational tools for blind college and university students and faculty.
15. Recognlflng the transformatlve effect of such a large digital collection, the NFB
collaborated with Google and the libraries of the University Defendants, among others, over
the last several years to ensure that the HathlTrust Digital Library will be accessible and made available to blind Americans.
16. In December 2004/ the NFB learned of the Google scanning Project and contacted Google to inquire whether the scans would be created in su~h a way that they would Include the metadata necessary to make them accessible to the blind. In January 2005, Google responded that It did not Intend to Include the coding necessary to make the scans accessible.
17. Throughout 2005 and 2006, the NFB lobbied Google to change this decision and include the necessary metadata. In 2006, the NFIl, together with Peter Jaszl/ met with representatlv6$ from the University of California/ the University of Michigan, and the University ofWlsconslo, to recruit their support In convlnylng Googis to commit to producing accessible scans. This effort was ultimately successful, and as I discussed above/ the Google books scans that comprise the HathlTrust are accessible to the blind.
,j.S. 10 October 2008, the University of Michigan held a demonstration for the NFB of the procedure and software It had developed to make the HathlTrust collection's digital Information accessible to the print disabled.
4

Case 1:11-cv-06351-HB Document 27-1 Filed 12/12/11 Page 6 of 6
.~
19. In September 2009, I testified before the Committee on the Judiciary of the United States House of Representatives about the importance of the Google books/HathlTrust collection for the education of the blind.
20. Also In 2009, the NFB organized the Reading Rights Coalition, which Is composed of 32 groups representing Individuals with print disabilities (Including neurological and physical conditions as well as learning disabilities) In response to the Authors Guild's attempt to convince Amazon to disable the text to speech function on the Kindle, another digital bool< technology, Through this effort, we successfully persuaded Amazon to maintain Its texHospeech function.
I declare under penalty of perjury that the foregoing Is true and correct.
Executed on: 2/¢.:...'!...,..___ ~ ~~ ~"'.. C~ "\ M/~~i
5

Case 1:11-cv-06351-HB Document 27-2 Filed 12/12/11 Page 1 of 3
Exhibit B

Case 1:11-cv-06351-HB Document 27-2 Filed 12/12/11 Page 2 of 3

IN THE UNITED STATES DlSTRICT COURT FOR THE SOUTHERN DlSTRICT OF NEW YORI(

THE 1}.UTHORS GUILD, INC., et al., Plalntllfo,
v.
HATHITRUST, et aI., Defendants.

Case No. 11.ov·6351 (HS)

DECLARATION OF BLAIR SEIDLITZ I, Blair Seldlitz, do hereby declare that: I. I am over eighteen years of age and am competent to make this Deolaration, 2. My home address is 11829 West Tesoh Aven\le, Greenfield, Wisconsin 53228. 3, I illlliegally blind. 4, I cUl'l'ently am ajtmior at the University ofWlsconsJ.ll, Madison. I am pursing a degree in Engineering Physics and I intend to apply to Ph.D. programs when I graduate. 5, Currently, when I wish to b01Tow books from the Wisconsin library, I must photocopy the books and scan each page with my Kurzweil™ scanner, 6. This ~j'ocess is very time conswl1ing and I try to avoid borrowing priltt materials from the library. 7, To complete my reading fOl' class, I purchases accessible copies ofrequired texts, but I do not access slIppiementalmaterials that my sighted olassmates borrow fi'om the
libxaxy. In had access to digital copies ofthe library's collection, I would be able to
access these Bupplemental mate1'iuls.
1

Case 1:11-cv-06351-HB Document 27-2 Filed 12/12/11 Page 3 of 3
8, In Jmd i\ooess to the HathlT:l'ust oollliCt!O.l1, ![ WOlltd 'be able to ¢CXlllore anyiopic 1
wanted at flIty tittle, wltltease,like. my s1g\)fed cjnssmates, My education wouk1110t be
~l1t1ned to the Ilmited tlumber ofl()Jllc~ Qovcl'ed Jtl'the ·books I pUl'Ohase, I ·c1eclfU'6 \\I1de1' jlenaHy Ofpal~t1l'Y thaHhe fOl'egohlg 18 t1'1l.6 lilid l1011eot.

Case 1:11-cv-06351-HB Document 27-3 Filed 12/12/11 Page 1 of 3
Exhibit C

Case 1:11-cv-06351-HB Document 27-3 Filed 12/12/11 Page 2 of 3

·IN THE UNITED 'STATES DISTRICT COURT Ji:O~ THE Sop:tHE.nN~I$TRIc:r OF NEW YORK

tHE AUTHORS ·GUILD,,1NG., et aI., Plail1tijJs,
v.
'IlATHlTRUST, et aI., Dejendtmts .

CaseNo.1l-cv-63S1(HB)

.pECLARA'I'IOi:'<! OF COURTNEY WHEELER 1, Courtney Wheeler; do hereby declare-that: 1. Iamo\le!' eighteen yearsot'age'and.amcotnpetent tomak!l this. Declaration.
2. My home address is 3919 Sterling Drive, Bau Claire, Wisconsin, 54701. 3. hm legally blind.
4. I ourrently am a junior atthe University of Wisconsin, Bau Claire: lintend to ttansferto:the University ofWisconsin, Stout, forthesprirtg 2012 semester. Iampul'sing a i)aohelor"s degree in PsycholQgy.
5. Iprefenoaccess printmaterials using the screen reader on my computer; 0. When I purchase textbooks for my classes, I am usually able to obtain an ·accessiblee~py ,ofthose hooks from Leal'hing Ally, a serVice that pl'ovides audio recorded versions ot'pul'chased texts for blindreaqers. Learning Ally, however, hi tlot' available for books I wish to borrow frOm the Utiiversity ofWisconsin Library. 7. Td !let access to print Iibnuy books, tbring ll1yhusband or a friend as a reader. , This -processl!; verytltne constiming<iUld dependent on the'av!lilabilityof at;earler"
I

Case 1:11-cv-06351-HB Document 27-3 Filed 12/12/11 Page 3 of 3 8. As a result, I choose 1I0tto take elective classes that require I'esearchjlapets. In the past, I haV\lunsuc<:cssfully petitioned the University of Wisconsin to exempt me from conducting Jihraryl'esearch as'an<accommodationformy disability, and from Courses that requinispecific books ·and<reading mat:eria]s thafare. not available in acccssihlefofmats. Howwer, I would prefer the 0PPOltunity to have access to library materials to the same eX.<tent ftlld at the sametime asevetyone else, because I would tike to take advantage of all of the educational opportunities available to my peers. I declare under penalty ofperjury that the foregoing is tlUe and correct
1/4/ Executed on: 2 I!
2

Case 1:11-cv-06351-HB Document 27-4 Filed 12/12/11 Page 1 of 3
Exhibit D

Case 1:11-cv-06351-HB Document 27-4 Filed 12/12/11 Page 2 of 3

IN THE UNITED STATES DlSTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., et aI., Plaintiffs,
v,
HATHITRUST, et aI., Defendallts,

Case No, ll-cv..6351(HB)

DECLARATION OF GEORGINA KLEEGE I, Georgina Kleege, do hereby declare that: 1. I am over eighteen years of age and am competent to make this Declaration. 2. I am legally blind. 3. I am a Lecturer in Creative Writing and Disability Studies and a member of the English Department at the University of Califomia, Berkeley. I have served in this position since 2003, Previously, I was atl Adjunct Professor at the Ohio State University from 1991-2002. 4. To access print materials, I use JAWS, a SCreen reader. Although I read braille, the paucity of titles in braille and the expenses and delays in creating a broilte book ca\lse me to rely mostly on digital copies of books and journals for work and pleasllre reading. I obtain digital books l1'om Bookshare when they are available. 5. Currently, when I wish to read books from the Berkeley library, I must Bcan each page and nUl it throllgh optical character recognition software. This process is very time consuming. AB a result, I rarely borrow print materials from the library.

Case 1:11-cv-06351-HB Document 27-4 Filed 12/12/11 Page 3 of 3

6. The lack of accessible print materials has affected my education and career. Although I was very successfitl as an undergrad\1ate student at Yale University, I spent a significant amount of time searching for human readers to help me complete my coursework. Because of the time constraints involved with finding roaders, my professors discouraged me from pursuing a Ph.D.
7. In addition, I know that the Berkeley Student Disability Services Office cannot timely process all requests fOl' accessible print materials. Although the people in that office are highly skilled and educated to provide training and counseling for students, they spend the majority oftheir time scanning books for pl'int.disabled students. For blind Berkeley students and faculty to have immediate access to millions of books through the HathiTmst collection would elevate those students' and my own ability to ftmction and would give llS access to the same trove ofinformatiou available to our sighted peers. Moreover, the time I spend searching for 01' m&king accessible copies could be devoted to my academic pursuits. Immediate access to electronic versions of millions of literary works would be, for me, tl'ansformativc.
I declare under penalty of peljury that the foregoing is tllle and correct.

V5/ Executed on: I

II

~dks_ org1l1a Kleege

2

Case 1:11-cv-06351-HB Document 27-5 Filed 12/12/11 Page 1 of 3
Exhibit E

Case 1:11-cv-06351-HB Document 27-5 Filed 12/12/11 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., et aI.,
Plaintiffs,
v.
HATHITRUST, et aI., Defendants,

Case No. l1-cv-6351(HB)

DECLARATION OF DANIEL F. GOLDSTEIN J, Daniel F. Goldstein, do hereby declare that: 1, I am over eighteen years of age and am competent to make this Deciamtion, 2, I am It member in good standing of the bars of the Maryland COlJl't of Appeals, the United States District Court for the District of Maryland, and the Supreme COlJli of the United States, the United States Courts of Appeal for the District of Columbia, Second, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits as well as the United States Court of Federal Claims, 3. I have been a partner at the firm of Brown, Goldstein & Levy, LLP, a Baltimore law firm, since its founding in 19&4. Brown, Goldstein & Levy, LLP is a leading private plaintiffs law firm, with extensive practice in the areas of disability civil rights, race discrimination, gender discrimination, wage and hour violations, and actions brought on behalf of consumers under both state and federal law. Prior to forming Brown, Goldstein & Levy, I worked as a law clerk to the Honorable Frank Kaufman in the U.S. District Cmni for the District of Maryland and as an Assistant United States Attorney in the District of Maryland. I have practiced law for more than 35 years.
1

Case 1:11-cv-06351-HB Document 27-5 Filed 12/12/11 Page 3 of 3 4. I anticipate that any discovery the Proposed Intervenors will take in this case will largely overlap with the discovery the Defendants will take. Any additional discovery will be very minimal. 5. ] have seen the scheduling order in this case and believe that our participation, should the Court grant the motion, would not cause any delays. I declare under penalty of perjury that the foregoing is true and correct.
2

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Exhibit F

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 2 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORI(

THE AUTHORS GUILD, INC., et aI., Plaintiffs,
v.
HATHITRUST, et aI., Defendants.

Case No. ll-cv-6351(HB)

DEFENDANT INTERVENORS' JOINT ANSWER AND DEFENSES Defendant Intervenors National Federation of the Blind, Georgina Kleege, Blair Seidlitz, and Courtney Wheeler hereby state the following for their JOINT ANSWER AND DEFENSES to the First Amended Complaint filed by the Plaintiffs in the above-captioned action ("Plaintiffs"). Defendants respond to the paragraphs oflhe First Amended Complaint ("FAC") in correspondingly numbered paragraphs. Defendant Intervenors deny each allegation in the FAC unless expressly admitted. 1. Defendants admit that Plaintiffs, in the FAC, seek prospective it~unctive and declaratory relief but deny that Plaintiffs are entitled to such relief. Defendants admit that "the Regents of the University ofMichiganlUniversity Library, Ann Arbor Campus"; "The Regents of the University of California on behalf of its California Digital Library"; "the Board of Regents ofthe University of Wisconsin System, dlbla the University of Wisconsin-Madison, General Library System"; and Cornell University entered into agreements with Google Inc. ("Google") regarding the digitization of works in their libraries' collections, and that The Board ofrrustees of the University of Illinois, on behalf ofthe Committee on Institutional Cooperation ("crC")

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 3 of 22
and its member universities (the "CIC Universities"), entered into an agreement with Google regarding the digitization ofworics in the CIC Universities' library collections. Defendant Intervenors further admit that "HathiTrust" is the name of a service of the University of Michigan in which the Universities and other institutions participate under agreements with the University of Michigan. Defendant Intervenors admit that they and Defendants have engaged in uses of and activities with respect to the works, which uses are permitted under the United States Copyright Act (the "Copyright Act"). Defendant Intervenors lack knowledge or information sufficient to form a belief about whether Plaintiffs hold a copyright in any work used by Defendant Intervenors and thus deny such allegations. Defendant Intervenors deny the remaining allegations in Paragraph 1 of the FAC.
2. Defendant Intervenors admit that pursuant to Google's various. agreements with the Regents of the University ofMichiganlUniversity Library, Ann Arbor Campus; The Regents ofthe University of California on behalf of its California Digital Library; the Board of Regents ofthe University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General Library System; Cornell University; and The Board of Trustees of the University of Illinois, on behalf of the CIC and the CIC Universities, Google has provided digital copies of books from a University's library's collections either to that University or, at the University's request, to the University of Michigan Library in Ann Arbor (the IMLibrary"), and that the Universities store these digital copies in a repository called the HathiTrust Digital Library ("HDL"), which contains at least 9.7 million volumes. Defendant Intervenors also admit that the Universities pmticipate in the HathiTrust Service along with more than fifty other institutions. Defendants lack Imowledge or information sufficient to form a belief about whether seventy-three percent (73%) ofthese
2

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 4 of 22
volumes are protected by copyright and thus deny such allegations. Defendants deny the remaining allegations in Paragraph 2 of the FAC.
3. Defendant Intervenors admit that UM and UC have announced their participation in the Orphan Works Project ("OWP"). an initiative to, inter alia, identify "Olphan works"-incopyright works for which the copyright holder cannot be found-and eventually to malce lawful uses of these works. Defendant Intervenors also admit that Comell and UW have announced plans to participate in the OWP and that IV has not announced plans to participate in the OWP. Defendants deny the remaining allegations in Paragraph 3 of the F AC.
4. Defendant Intervenors admit that the Universities have asserted that their activities are beneficial to society and permissible under a variety of sections of the Copyright Act, including as fail' use, which received statutory recognition in Section 107 of the Copyright Act. Defendant Intervenors deny the remaining allegations in Paragraph 4 of the FA C.
5. Defendant Intervenors admit that, in a separate case, Google and The Authors Guild, Inc. (among other parties) filed a motion for approval of a proposed settlement agreement that was denied by the court. The referenced proposed settlement agreement and court order denying approval speak for themselves. Defendants deny the remaining allegations in Paragraph 50ftheFAC.
6. Defendant Intervenors deny the allegations in Paragraph 6 of the F AC. 7. Defendant Intervenors deny the allegations in Paragraph 7 of the F AC. 8. Defendant Intervenors admit that the FAC seeks injunctive relief and pmports to state claims for copyright infringement under the United States Copyright Act, 17 U.S.C. 101 et seq. and seeks declaratory relief pUl'suant to 28 U.S.C. §§ 2201 and 2202, but Defendant
3

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 5 of 22
Intervenors deny that any such infringement has occurred, deny that Plaintiffs are entitled to the relief sought, ancI otherwise deny the remaining allegations in Paragraph 8 of the FAC.
9. Paragraph 9 of the FAC is a legal assertion that does not require an Answer. 10. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 10 of the FAC and thus deny such allegations. 11. Paragraph 11 of the FAC is a legai assertion that does not require an Answer 12. Upon information and belief, Defendant Intervenors admit that The Authors Guild, Inc. is a corporation with a place ofbusiness at 31 East 32nd Street, New York, New York, 10016. Defendant Intervenors lack knowledge 01' information sufficient to form a belief about the tmth of the remaining allegations in Paragraph 12 ofthe FAC and thus deny such allegations. 13. Defendant Intervenors lack knowledge or information sufficient to form a belief about the t\'llth of the allegations in Paragraph 13 of the FAC and thus deny such allegations. 14. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 14 of the FAC and thus deny such allegations. 15. Defendant Intervenors lack lmowledge 01' information sufficient to form a belief
about the truth of tile allegations in Paragraph 15 ofthe FAC and thus deny such allegations.
16. Defendant Intervenors lack knowledge 01' information sufficient to form a belief about the truth of the allegations in Paragraph 16 of the FAC and thus deny such allegations.
17. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 17 of the FAC and thus deny such allegations.
18. Defendant Intervenors lack knowledge 01' information sufficient to for111 a belief abotltthe truth of the allegations in Paragraph 18 of the PAC and thus deny such allegations.
4

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 6 of 22
19. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 19 of the FAC and thus deny such allegations.
20. Defendant Intervenors lack knowledge or information sufficient to form a belief about the tmth of the allegations in Paragraph 20 ofthe FAC and thus deny such allegations.
21. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth ofthe allegations in Paragraph 21 of the FAC and thus deny such allegations.
22. Defendant Intervenors admit that the book identified in Exhibit A to the FAC that is referred to is included in the HDL, but Defendant Intervenors otherwise deny the allegation that such book was "unlawfillly reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge or information s\lfficient to form a belief about the truth of the remaining allegations in Paragraph 22 ofthe F AC and thus deny such allegations.
23. Defendants admit that the books identified in Exhibit A to the F AC that are referred to in Paragraph 23 ofthe FAC are included in the HDL, but Defendant Intervenors otherwise deny the allegation that such books were "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 23 ofthe F AC and tlUlS deny such allegations.
24. Defendant Intervenors admit that the book identified in Exhibit A to the FAC that is refe1'l'ed to in Paragraph 24 of the FAC is included in the HDL, but Defendant Intervenors otilelwise deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge 01' information sufficient to form !l belief about the truth of the remaining allegations in Paragraph 24 ofthe FAC and thus deny such allegations.
5

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 7 of 22
25. Defendant Intervenors admit that the book identified in Exhibit A to the FAC that is referred to in Paragraph 25 of the FAC is in the BDL, but Defendant Intervenors otherwise deny the allegation that such book was "tmlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge 01' information sufficient to form a belief about the truth of the remaining allegations in Paragraph 25 of the FAC and thus deny such allegations.
26. Defendants admit that the books identified in Exhibit A to the F AC that are refel'l'ed to in Paragraph 26 of the FAC are included in the BDL, but Defendant Intervenol'S otherwise deny the allegation that such books were "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge 01' information sufficient to form a belief abo~lt the truth of the remaitiing allegations in Paragraph 26 ofthe FAC and thus deny such allegations.
27. Defendant Intervenors admit that the books identified in Exhibit A to the FAC that are referred to in Paragraph 27 of the FAC are in the BDL, but Defendant Intervenors otherwise deny the allegation that such books were "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge 01' information sufficient to form a belief about the truth of the remaining allegations in Paragraph 27 of the FAC and thus deny such allegations.
28. Defendant Intervenors admit that the books identified in Exhibit A to the FAC that are referred to in Paragraph 28 of the FAC were digitized and included in the BDL, and Defendants otherwise deny the allegation that such books were "unlawfully rcproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient
6

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 8 of 22
to form a belief about the truth of the remaining allegations in Paragraph 28 of the FAC and thus deny such allegations,
29, Defendant Intervenors admit that the books identified in Exhibit A to the FAC that are referred to in Paragraph 29 of the FAC are included in the HDL, but Defendant Intervenors otherwise deny the allegation that such books were "unlawfully reproduced, digitized and distributed" by Defendants, Defendants lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 29 of the FAC and thus deny sneh allegations.
30. Defendant Intervenors admit that the book identified in Exhibit A to the FAC that is referred to in Paragraph 30 of the FAC is included in the HDL, but Defendant Intervenors otherwise deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to fOfm a belief about the truth of the remaining allegations in Paragraph 30 of the FAC and thus deny such allegations.
31. Defendant Intervenors admit that the book identified in Exhibit A to the FAC that is referred to in Paragraph 31 of the FAC is included in the HDL, but Defendant Intervenors otherwise deny the allegation that such book was "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 31 of the FAC and thus deny such allegations,
32, Dcfcndant Intervcnors admit that the book identified in Exhibit A to the F AC that is referred to in Paragraph 32 of the FAC is included in the HDL, but Defendant Intervenors otherwise deny the allegation that such book was "tllllawfully reproduced, digitized and
7

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 9 of 22
distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to form a belief about the tmth of the remaining allegations in Paragraph 32 of the FAC and thus deny sllch allegations.
33. Defendant Intervenors admit that the books identified in Exhibit A to the FAC that are referred to in Paragraph 33 of the FAC are included in the BDL, but Defendant Intervenors otherwise deny the allegation that such books were "unlawfully reproduced, digitized and distributed" by Defendants. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 33 of the F AC and thus deny sllch allegations.
34. Defendant Intervenors admit that UM is a state university comprising three campuses with a principal place of business in Ann Arbor, Michigan. Defendants also admit that UM is governed by its Board of Regents. Defendants further adhlit that UM owns, operates, and controls MLibrary and that, upon information and belief, MUbrary is one of the largest university library systems in the United States, holding more than 8.5 million volumes and with more than 3 million patron visits per year to its facilities and its website. Defendants also admit that on or about December 14, 2004, "the Regents of the University ofMichiganlUniversity Library, Ann Arbor Campus" entered into a Cooperative Agreement with Ooogle to digitize works fi'om the MLibrary collection (the 'UM-Ooogle Cooperative Agreement"). Defendant Intervenors further admit that UM is a co-founder, host, and primary administrator of the BathiTrust Service and is the largest contributor to the BDL, which contains the collection of digital works with respect to which the BathiTrust Service operates. Defendant Intervenors deny the remaining allegations in Paragraph 34 of the FAC.
8

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 10 of 22
35. Defendant Intervenors admit that UC is a public trust comprising ten camptlSes with a principal place of business in Oakland, California. Defendant Intervenors also admit that UC is governed by its Board of Regents. Defendant Intervenors flUther admit that UC owns, operates, and controls the UC library system, that the UC library system consists of more than 100 libraries, and that, upon information and belief, the UC library system collectively is the largest research/academic library in the world. Defendant Intervenors also admit that on or abotlt August 3, 2006, "The Regents of the University of California on behalf of its California Digital Library" entered into a Cooperative Agreement with Google to digitize works from UC's libraries (the "UC-Google Cooperative Agreement"). Defendant Intervenors further admit that UC is a co-founder ofthe HathiTrust Service and is the second largest contributor to the HDL. Defendant Intervenors also achnit that UC announced on August 24,201 I its intention to join the OWP. Defendant Intervenors deny the remaining allegations in Paragraph 35 of the FAC.
36. Defendant Intewenors admit that UW is a state university system comprising twenty-six campuses with a principal place of business in Madison, Wisconsin. Defendant Intervenors also admit that UW is governed by its Board of Regents. Defendant Intervenors flUther admit that UW owns, operates, and controls the UW library system, holding more than 8 million volumes. Defendant Intervenors also admit that on 01' about October 12,2006, the "the Board of Regents of the University of Wisconsin System, d/b/a the University of WisconsinMadison, General Librm'y System" entered into a Cooperative Agreement with Google to digitize works from UW's libraries (the "UW-Google Cooperative Agreement"). Defendant Intervenors further admit that UW is a co-founder ofthe HathiTrust Service mld is the third largest contributor to the HDL. Defendant Intervenors also admit that UW's intention to
9

Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 11 of 22
participate in the OWP became public on June 23, 2011. Defendant Intervenors deny the remaining allegations in Paragl'aph 36 ofthe FAC.
37. Defendant Intervenors admit that "the trustees of Indiana University" govel'1lS IU, which is a body politic of the State ofIndianu, a State institution of higher education comprising eight campuses with a principal place of business in Bloomington, Indiana. Defendant Intervenors fmther admit that IU owns, operates, and controls the IU library system, holding more than 7.8 million books in over 900 languages. Defendant Intervenors also admit that IO's Bloomington campus is a member of the CIC, a consortium of Big Ten universities plus the University of Chicago. Defendant Intervenors further admit that Oll 01' about June 6, 2007, The Board ofTrustees of the University of Illinois, on behalfofthe CIC and the CIC Universities, entered into a Cooperative Agreement with Google to digitize works from CIC Universities' libraries (the "CIC.Google Cooperative Agreement"). Defendant Intervenors further admit that !U's Bloomington campus is the seventh largest contl'ibutol'to the HDL. Defendant Intervenors admit that a fully operational, synchronized, and live "mirror site" of the HDL is located on IO's Indianapolis campus. Defendant Intervenors deny the remaining allegations in Paragraph 37 of the FAC.
38. Defendant Intervenors admit that Comell is a corporation and private land·grant university with its principal place of business in Ithaca, New York. Defendant Intervenors also admit that Comell owns, operates, and controls the COl'llelllibrary, holding more than 8 million volumes. Defendant Intervenors further admit that on 01' about August 6, 2007, Comell entered into a Cooperative Agreement with Google to digitize works fl'Om the C01'llelllibrary (the "C01'llell.Google Cooperative Agreement"). Defendant Intervcnors also admit that Comell is the fourth lnrgest contributor to the HDL. Defendant Intervenors further admit that Comell
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Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 12 of 22
announced on August 24,2011 its intention to join the OWP. Defendant Intervenors deny the remaining allegations in Paragraph 38 of the FAC.
39. Defendant Intervenors admit that "HathiTrust" is the name of a service through which more than fifty institutions, which inc111de universities, libraries, edllcational institutions, and consoltia, are collaborating with UM to create a reliable and increasingly comprehensive digital repository of books. Defendant Intervenors also admit that UM's principal place of business for purposes ofproviding the HathiTrust Service is in Ann Arbor, Michigan. Defendant Intervenors further admit that as of October 5, 2011, the HDL contained 9,709,348 voillmes, amounting to 435 terabytes of data. Defendant Intervenors deny the remaining allegations in Pm'agraph 39 of the FAC.
40. Defendant Intervenors admit that libraries and archives provide a tremendous sooietal value in preserving and seouring works of mt, literature, and scienoe. Defendant Intervenors also admit that Section 108 of the Copyright Act is one of many limitations on copyright holders' rights. Defendant Intervenors deny the remaining allegations in Paragraph 40 oftheFAC.
41. Defendant Intervenors admit that Sectionl08(b) permits a library to make three copies of an llnpublished work for preservation and security purposes (among other purposes). Defendant Intervenors also admit that Section 1 8(c) permits a library to make three copies of a pllblished work. Defendant Intervenors deny the remaining allegations in Paragraph 41 of the FAC.
42. Defendant Intervenors respond to Paragraph 42 by stating that Sectiol1 108 of the Copyright Act, as it has existed at val'iO\lS times, speaks for itself. Defendant Intervenors further
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Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 13 of 22
respond that Plaintiffs' description of Section 108 is incomplete and therefore mischaracterizes the statute. Defendant Intervenors thus deny the allegations in Paragraph 42 ofthe FAC.
43. Defendant Intervenors admit that Paragraph 43 appears to be an accurate quote of selected text (with Plaintiffs' emphasis) from Senate Report No.1 05·190 (1998), which speaks for itself, and therefore is an incomplete and inaccurate representation ofthe legislative history. Defendant Intervenors deny the remaining allegations in Paragraph 43 of the FAC.
44. Defendant Intervenors respond to Paragraph 44 by stating that Section 108 of the Copyright Act, as it has existed at various times, speaks for itself. Defendant Intervenors further respond that Plaintiffs' description of Section 108 is incomplete and therefore mischaracterizes the statute. Defendant Intervenors thus deny the allegations in Paragraph 44 of the F AC.
45. Defendant Intervenors respond to Paragraph 45 by stating that Section 108 ofthe Copyright Act, as it has existed at various times, speaks for itself. Defendant Intervenors further respond that Plaintiffs misquote Section 108 and that Plaintiffs' description of Section 108 is incomplete and therefore mischaractel'izes the statute. Defendant Intervenors thus deny the allegations in Paragraph 45 of the FAC.
46. Defendant Intervenors admit the allegations in Paragraph 46 of the FAC. 47. Defendant Intervenors deny the allegations in Paragraph 47 of the FAC. 48. Defendant Intervenors denS the allegations in Paragraph 48 of the FAC. 49. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 49 regarding an amlOuncement made by Google; regarding whether, when, and with whom Google has formed partnerships; and regarding whether Google and "its partners" have digitized more than 12 million books and thus deny such allegations.
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50. Defendant Intervenors admit that pursuant to the UM-Google Cooperative Agreement, UM cooperates with Google to identify books from UM's collection to be digitized; that pursuant to the UC-Google Cooperative Agreement, UC cooperates with Google to identify books from UC's collection to be digitized; that pursuant to the UW-Google Cooperative Agreement, UW cooperates with Google to identify books from UW' s collection to be digitized; that pursuant to the CIC-Google Cooperative Agreement, each of the CIe Universities, including IU, cooperates with Google to identify books £i'om theil' individual collections to be digitized; and that pursuant to the Cornell-Google Cooperative Agreement, Comell cooperates with Google to identify books from Comell's collection to be digitized. Defendants admit that the books selected for digitization pursuant to these agreements are not limited to works in the public domain, unpublished works, or deteriorating published works that call1iot be replaced, and include in-print books that are commercially available and books that are protected by copyright. Defendant Intervenors further admit that pursuant to the terms of these various agreements, the works selected for digitization are delivered to a facility that is located either on or off the University's campus and that is occupied by Google pel'solUlel and scanning equipment. Defendant Intervenors deny the remaining allegations in Paragraph 50 of the FAC.
51. Defendant Intervenors admit that Google has digitized books owned by the Universities libraries. Defendant Intel'venors lack knowledge or information sufficient to form a belief about the truth of the allegations regarding "Google Books" and Google's actions with respect to "Google Books" and thus deny the remaining allegations in Paragraph 51 of the F AC.
52. Defendant Intervenors admit that pursuant to Google's various agreements with the Regents of the University ofMichiganiUnivel'sity Library, AIUl Arbor Camp\lS; Tile Regents of the University of California on behalf ofits California Digital Library; the Board of Regents
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ofthe University of Wisconsin System, d/b/a the University of Wisconsin-Madison, General Library System; COl'11ell University; and The Board of Trustees of the University of Illinois, on behalf of the CIC and the CIC Universities, after digitizing a book from the collection of a University, Google may provide a digital copy of the book to the University library or, at the University's request, to MLibrary to be incorporated into the HDL, and Defendant Intervenors admit that the terms ofthese various agreements provide that the digital copy include a set of image and OCR files and associated meta-information about the flies. Defendant Intervenors also admit that books that leave the premises of the Universities' libraries to be digitized are returned to the libraries. Defendant lntervenors deny the remaining allegations in Paragraph 52 of the FAC.
53. Defendant Intervenors admit that some libraries have estimated their costs of performing the act of digitization at approximately $100 per volume. Defendant Intel'Venors deny the remaining allegations in Paragraph 53 of the FAC.
54. Defendant Intervenors admit that certain Universities, including UM, have digitized works in their library collections. Defendant Intervenors deny the remaining allegations in Paragraph 54 oftheFAC.
55. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 55 of the FAC and thus deny such allegations.
56. Defendant Intervenors admit that The Authors Guild, Inc. and others filed a purported class action lawsuit against Google in the Southem District of New York, Authors Guild, Inc. v. Google, Inc., Case No. 05 Civ. 8136 (S.D.N.Y. filed Sept. 20, 2005), involving Google's digitization of books (the "Google Books LaWStlit"). The complaint in the Google
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Books Lawsuit speaks for itself, and therefore Defendant Intervenors deny the remaining allegations in Paragraph 56 of the FAC.
57. Defendant Intervenors admit that Google and The Authors Guild, Inc. (among other parties) filed a motion for approval of a proposed settlement agreement in the Google Books Lawsuit. The proposed settlement agreement speaks for itself, and therefore Defendant
Intervenors deny the remaining allegations in Paragraph 57 of the FAC.
58. Defendant Intervenors admit that the motion for approval ofthe proposed settlement agreement was denied on March 22, 20 II. Defendants also admit that Paragraph 58 of the FAC accurately quotes from Judge Denny Chin's decision. Judge Chin's decision speaks for itself, and therefore Defendant Intervenors deny the remaining allegations of Paragraph 58 of the FAC.
59. Defendant Intervenors admit that Paragraph 59 of the FAC accurately quotes from Judge Denny Chin's decision, which speaks for itself. Defendant Intervenors deny the remaining allegations in Paragraph 59 of the FAC.
60. Defendant Intervenors admit that Judge Denny Chin's decision noted efforts by Congress to pass orphan works legislation. Defendants also admit that the decision discussed international law conce1'l1S raised by foreign authors and entities regarding the ASA. Judge Chin's decision speaks for itself. Defendant Intervenors deny the remaining allegations in Paragraph 60 of the FAC.
61. Defendant Intervenors admit that the Google Books Lawsuit is still pending in the Southem District ofNew York.
62. Defendant Intervenors admit that 011 October 13,2008, the thirteen universities comprising the CIC, led by UM; UC's libraries, led by the CDL; and the University ofVil'ginia
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announced the launch ofthe HathiTrust Service and the HDL, the shared repository of digital collections of institutions participating in the HathiTrust Service. Defendant Intervenors also admit that there are currently more than fifty institutions, including universities, libraries, educational institutions, and consOliia, from around the world paliicipating in the HathiTrust Service. Defendant Intervenors further admit that the website for the HathiTlust Service states that the mission of the HathiTrust Service is "to contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge. Defendant Intervenors deny the remaining allegations in Paragraph 62 of the FAC.
63. Defendant Intervenors lack knowledge 01' information sufficient to form a belief about the truth of the allegations in Paragraph 63 of the FAC and thus deny such allegations.
64. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 64 of the FAC and thus deny such allegations.
65. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 65 of the FAC and thus deny such allegations.
66. Defendant Intervenors lack knowledge 01' information sufficient to form a belief about the truth of the allegations in Paragraph 66 of the FAC and thus deny SUCll allegations.
67. Defendant Intervenors admit that this is an accurate quote from the HathiTrust Service website. Defendant Intervenors lack knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 68 of the FAC and thus deny such allegations.
68. Defendant Intel'venors admit that the HathiTrust Service includes a search tool that permits users to conduct full-text searches ofthe works in the HDL to determine the number of times a searched term appears, and the page numbers on which the searched term appears, in
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books in the HDL (including public domain and in-copyright works). Defendant Intervenors deny the remaining allegations in Paragraph 68 of the FAC.
69. Defendant Intervenors admit that the HathiTrust Service permits celiain users to view, search, print, and download full copies of certain volumes in the HDL, and Defendant Intervenors admit that the level of access to a work is determined in part by the identity of the user and the copyright status ofthe work, and deny the remaining allegations in Paragraph 69 of theFAC.
70. Defendant Intervenors admit that the HathiTrust Rights Database includes categorizations of copyright status for each work in the HDL, as determined through processes conducted as part of the HathiTrust Service or through other reSOUl'ces. Defendant Intervenors also admit that the HDL allows users to view books identified as being in the public domain on the HathiTrust Service website, wherever the users may have access to the website. Defendant Intervenors deny the remaining allegations of Paragraph 70 of the FAC.
71. Defendant Intervenors deny the allegations in Paragraph 71 of the FAC. 72. Defendant Intervenors deny the allegations in Paragraph 72 of the FAC. 73. Defendant Intervenors admit the allegations in Paragraph 73 of the FAC. 74. Defendant Intervenors admit that to identify whether an in-copyright work in the HDL is an orphan work under its OWP pilot process, the OWP staff undertook a multi-step due diligence process to check whether the work is commercially available for sale and, if it is not, to attempt to locate and contact the copyright holder. Defendant Intervenors also admit that, under the pilot process, if the OWP staff were unsuccessful in identifying a copyright holder, the bibliographic information for the work would have been listed 011 the HathiTrust Service website for ninety days. Defendant Intervenors further admit that, under the pilot process, ifno copyright
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holder emerged during the ninety days, and if UM owned a physical copy of the work in its collection, UM, through the HathiTrust Service, planned to make the work available on a limited basis to UM students, professors, and other authenticated users and visitors to the libraries at UM's campuses, to view the work in full, print the work one page at a time, and download the work one page at a time in single-page PDF files. Defendant Intel'venOl's admit that no works have been made available through the OWP and that the OWP pilot procedures are currently being reexamined. Defendant Intervenors deny the remaining allegations in Paragraph 74 of the PAC.
75. Defendant Intervenors admit that in July and August of2011, other participants in the HathiTrust Service, including UC and COl'llell, almounced their intent to participate in the OWP and their intent to make works in their collections identified as orphan works available on a limited basis to their respective students, faculty, and library patrons. Defendant IntervenOI'S deny the remaining allegations in Paragraph 75 of the PAC.
76. Defendant Intervenors admit that a list of orphan work candidates was posted on the HathiTl'llst Service website on 01' about July 15,2011.
77. Defendant Intervenors admit that the initial complaint in this action was filed on September 12,2011. Defendant Intervenors deny the remaining allegations in Paragraph 77 of the PAC.
78. Defendant Intervenors admit that on September 16, 2011, MLibral'y issued a statement concerning the OWP. Defendant Intervenors deny the remaining allegations in Paragraph 78 of the PAC.
79. Defendant Intervenors deny the allegations ill Paragraph 79 of the FAC.
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80. Defendant Intervenors incorporate by reference their responses to Paragraphs 1

through 79 above.

81. Defendant Intervenors lack knowledge 01' information sufficient to form a belief

about the truth of the allegations in Paragraph 81 of the PAC and thus deny such allegations.

82. Defendant Intervenors deny the allegations in Paragraph 82 of the PAC.

83. Defendant Intervenors deny the allegations in Paragraph 83 of the PAC.

84. Defendant Intervenors deny the allegations in Paragraph 84 of the PAC.

85. Defendant Intervenors deny the allegations in Paragraph 85 of the PAC.

86. Defendant Intcrvcnors deny the allegations in Paragraph 86 of the PAC.

87. Defendant Intervenors deny the allegations in Paragraph 87 of the PAC.

DEFENDANT INTEVENORS' AFFIRMATIVE DEFENSES AND OTHER DEFENSES

In flllther answer to the FAC, and by way of affirmative defenses and other defenses,

Defendant Intervenors state that they will rely upon the following defenses if applicable and if

supported by the facts. Defendant Intervenors do not admit that they bear the burden of proof for

any of these defenses.

A.

Defendant Intervenors are entitled to access to the HDL because Defendants'

use of and activities with respect to the works that are subject to copyright are

non-infringing fail' uses and do not require authorization pursuant to Section

107 of the Copyright Act.

B.

Defendant Intervenors are entitled to access to the HDL because Defendants'

use of and activities with respect to the works that are subject to copyright are

non-infringing and do not require authorization pursuant to Section 108 of the

Copyright Act.

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Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 21 of 22

C.

Defendant Intervenors are entitled to access to the HDL because Defendants

use of and activities with respect to the works that are subject to copyright are

non-infringing and do not require authorization pursuant to Section 109 of the

Copyl'ight Act.

D.

Defendant Intervenors are entitled to access to the HDL because Defendants

use of and activities with respect to the works that are subject to copyright are

permitted under Section 110 of the Copyright Act.

E.

Defendant Intervenors are entitled to access to the HDL because Defendants

use of and activities with respect to the works that are subject to copyright are

non-infringing and do not require authorization pursuant to Section 121 of the

Copyright Act.

F.

Defendant Intervenors are entitled to access to tl\e HDL because the collection

provides them equal access to the Defendants' library collections as required

under Titles II and III of the Amel'icans with Disabilities Act.

Defendant Intervenors respectfully reserve the l'ight to amend their answer to add additional

01' other defenses or to delete or withdraw defenses after a reasonable opportunity for appropl'iate

discovery.

WHEREFORE, Defendant Intervenors request the following relief:

(a) That Plaintiffs be denied all relief sought in the F AC;

(b) That the claims asserted in the F AC be dismissed with prejudice;

(e) Any such other and further relief as the Court deems just and proper.

Dated: Deeember 9, 2011

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Case 1:11-cv-06351-HB Document 27-6 Filed 12/12/11 Page 22 of 22

OF COUNSEL:
Daniel F. Goldstein Laura Ginsberg Abelson BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street Suite 1700 Baltimore, Maryland 21202 Telephone: 410-962-1030 Facsimile: 410-385-0869 dfg@browngold.com labelson@browngold.com
Peter Jaszi 5402 S!U'l'ey Street Chevy Chase, Maryland 20815 Telephone: 301-656-1753 Facsimile: 301-656-7483 pjaszi@wcl.american.edu

Respectfully submitted,

THE LAW OFFICE OF ROBERT J. BERNSTEIN

By:

/s/

Robert J. Bernstein (RE 4230)
380 Lexington Avenue, 1i h Floor

New York, NY 10168

Telephone: (212) 551-1068

Facsimile: (212) 551-1001

Counsel for National Federation of the Blind, Georgina Kleege, Blair Seldlitz and Courtney Wheeler

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 Case 1:11-cv-06351-HB Document 156 Filed 10/10/12 Page 1 of 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

THE AUTHORS GUILD, INC., et al.,

:

:

Plaintiffs,

:

:

-

against -

:

:

HATHITRUST, et al.,

:

:

Defendants.

:

---------------------------------------------------------------x

11 CV 6351 (HB)
OPINION & ORDER

Hon. Harold Baer, Jr., District Judge:

Before the Court are two motions for judgment on the pleadings and three motions for summary judgment. Defendants include HathiTrust;1 Mary Sue Coleman, President of the

University of Michigan (“UM”); Mark G. Yudof, President of the University of California; Kevin

Reilly, President of the University of Wisconsin System; Michael McRobbie, President of Indiana

University; and Cornell University (collectively, the “Universities”). Plaintiffs, consisting of

individuals and associational organizations, assert claims for copyright infringement for the alleged

unauthorized reproduction and distribution of books owned by the Universities. The individual

plaintiffs are Trond Andreassen, Pat Cummings, Erik Grundström, Angelo Loukakis, Helge

Rønning, Roxana Robinson, André Roy, Jack R. Salamanca, James Shapiro, Danièle Simpson, T.J.

Stiles, and Fay Welson, and the associational organizations are The Authors Guild, Inc. (“Authors

Guild”), The Australian Society of Authors Limited, Authors’ Licensing and Collecting Society

(“ALCS”), Union des Écrivaines et des Écrivains Quebecois (“UNEQ”), Sveriges Författarförbund

(“SFF”), Norsk Faglitterær Forfatter-og Oversetterforening (“NFF”), and The Writers’ Union of

Canada (“TWUC”) (collectively, “Associational Plaintiffs”). The Authors League Fund (“Authors’

Fund”) does not seek associational standing, but asserts a claim based on its direct ownership of

copyrights. I granted the motion to intervene as defendants by the National Federation of the Blind,

Georgina Kleege, Blair Seidlitz, and Courtney Wheeler (collectively, “Defendant Intervenors”) on

consent in January 2012.

Defendants’ motion for judgment on the pleadings, filed in December 2011, seeks the

dismissal of the Associational Plaintiffs on standing grounds to the extent they asserted the rights of

1 “HathiTrust” is the name of the service of University of Michigan (“UM”) in which the Universities and other institutions participate under agreements with UM. Defs.’ J. Pleadings 1 n.1. The Universities consist of UM, the University of California, the University of Wisconsin, Indiana University, and Cornell University.

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their members and sought dismissal of claims involving the Orphan Works Project (“OWP”) as not ripe for adjudication. For the reasons set forth below, Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part. Plaintiffs’ motion for judgment on the pleadings insofar as it seeks a ruling that fair use and other defenses are unavailable to the Defendants as a matter of law is DENIED. In June 2012, Defendants, Defendant Intervenors and Plaintiffs each filed motions for summary judgment. Defendants’ and Defendant Intervenors’ motions for summary judgment are GRANTED, and Plaintiffs’ motion for summary judgment is DENIED.
Also before the Court are two unopposed motions for leave to file briefs as amici, brought by the American Library Association, Association of College and Research Libraries, and Association of Research Libraries (the “Library Amici”), and the Digital Humanities and Law Scholars (the “Digital Humanities Amicus”). Both motions are GRANTED.2
BACKGROUND3 Defendants have entered into agreements with Google, Inc. (“Google”), that allow Google to create digital copies of works in the Universities’ libraries in exchange for which Google provides digital copies to Defendants (the “Mass Digitization Project” or “MDP”). Compl. ¶ 1–2; Pls.’ 56.1 ¶ 62; Defs.’ 56.1 ¶¶ 30–31.4 The HathiTrust partnership is in the process of creating “a shared digital repository that already contains almost 10 million digital volumes, approximately 73% of which are protected by copyright.” Compl. ¶ 2; see also Pls.’ 56.1 ¶ 77; Defs.’ 56.1 ¶ 42. After digitization, Google retains a copy of the digital book that is available through Google Books, an online system through which Google users can search the content and view “snippets” of the books. Compl. ¶ 51; Pls.’ 56.1 ¶ 12. Google also provides a digital copy of each scanned work to the Universities, which includes scanned image files of the pages and a text file from the printed work. Compl. ¶ 52; Pls.’ 56.1 ¶ 87; Defs.’ 56.1 ¶ 30. According to Plaintiffs, this process effectively creates two reproductions of the original. Compl. ¶ 52. After Google provides the Universities with digital copies of their works, the Universities then “contribute” these digital copies to the HathiTrust Digital Library (“HDL”). Id. ¶ 63. The Complaint alleges that in total, twelve unauthorized digital
2 Courts have discretion to allow amicus briefs. Jamaica Hosp. Med. Ctr., Inc. v. United Health Grp., Inc., 584 F. Supp. 2d 489, 497 (E.D.N.Y. 2008). Although Plaintiffs initially did not consent to the filing by the Digital Humanities Amicus, at oral argument they stated that they had no objection. Aug. 6, 2012 Tr. 3:5–6. 3 Because I have before me both motions for judgment on the pleadings and motions for summary judgment, I cite to both the Complaint and the parties’ Rule 56.1 Statements, where appropriate. 4 References to the “Complaint” are to the first amended complaint.
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copies are created during this digitization process. Id. ¶ 72. Google’s use of the digital works is the subject of a separate lawsuit.
For works with known authors, Defendants use the works within the HDL in three ways: (1) full-text searches; (2) preservation; and (3) access for people with certified print disabilities. Defs.’ 56.1 ¶ 48. The full-text search capabilities allow users to search for a particular term across all the works within the HDL. Id. ¶ 49. For works that are not in the public domain or for which the copyright owner has not authorized use, the full-text search indicates only the page numbers on which a particular term is found and the number of times the term appears on each page. Id. ¶ 50.
In an eloquent oral argument by Mr. Goldstein5 as well as in Mr. Kerscher’s6 declaration, Defendant Intervenors spelled out where blind scholars stood before digitalization: “Prior to the development of accessible digital books, the blind could access print materials only if the materials were converted to braille or if they were read by a human reader, either live or recorded.” Kerscher Decl. ¶ 19; see also Aug. 6, 2012 Tr. 41:23–55:25. Absent a program like the MDP, print-disabled students accessed course materials through a university’s disability student services office, but most universities are able to provide only reading that was actually required. Kerscher Decl. ¶¶ 32, 36. Print-disabled individuals read digital books independently through screen access software that allows text to be conveyed audibly or tactilely to print-disabled readers, which permits them to access text more quickly, reread passages, annotate, and navigate, just as a sighted reader does with text. Id. ¶¶ 20–21, 23. Since the digital texts in the HDL became available, print-disabled students have had full access to the materials through a secure system intended solely for students with certified disabilities. Wilkin Decl. ¶ 105. Many of these works have tables of contents, which allow print-disabled students to navigate to relevant sections with a screen reader just as a sighted person would use the table of contents to flip to a relevant portion. Kerscher Decl. ¶ 34. In other words, academic participation by print-disabled students has been revolutionized by the HDL.
Four of the HathiTrust Universities (all except Indiana University) have also agreed to participate in the OWP, an initiative to “identify and make available to University students, faculty and library patrons full copies of so-called ‘orphan works’—works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by the
5 Daniel Goldstein of Brown Goldstein & Levy, LLP, attorney for the National Federation of the Blind. 6 George Kerscher, Ph.D., Senior Officer of Accessible Technology at Learning Ally (formerly known as Recording for the Blind & Dyslexic), which creates recorded copies of print materials for print-disabled persons, and Secretary General of the DAISY Consortium (Digital Accessible Information System) and President of the International Digital Publishing Forum (IDPF), which are international organizations that work to promote accessibility in electronic publishing.
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HathiTrust.” Compl. ¶ 3. The original process to determine which works would be included as orphan works (“Orphan Works”) involved a decision as to whether a work was commercially available for sale, and if not, an attempt to contact the copyright holder. Id. ¶ 74; Pls.’ 56.1 ¶ 114; Defs.’ 56.1 ¶ 79. If that attempt failed, then HathiTrust would list the bibliographical information for the work on the HathiTrust Orphan Candidates webpage for ninety days, after which time the work would have become available for “Full view” on HathiTrust to UM students, professors, and other authenticated users and visitors to libraries at UM’s campuses. Compl. ¶ 74; Pls.’ 56.1 ¶ 114. UM intended to allow “access to orphan works for the purpose of online review, with the number of users permitted to view a given work limited at any one time to the number of copies held by the UM library.” Defs.’ 56.1 ¶ 81. Other schools subsequently announced participation in this project. Compl. ¶ 75. After the filing of the original complaint in this action, UM announced that the OWP would be temporarily suspended because the procedures used to identify Orphan Works had apparently allowed many works to make their way onto the Orphan Works Lists in error. Id. ¶ 78; Defs.’ 56.1 ¶¶ 83–84. UM has not yet provided a new process for identifying Orphan Works, or even a timeline for when that might happen, “although it continues to study ways to improve the orphan identification process.” Defs.’ 56.1 ¶ 84.
By their Complaint, Plaintiffs seek (1) a declaration that the systematic digitization of copyrighted materials without authorization violates Sections 106 and 108 of the Copyright Act, (2) an injunction to prevent the reproduction, distribution, or display of Plaintiffs’ or other copyrighted works except as provided by § 108, (3) an injunction to prohibit Defendants’ provision of works to Google for digitization without authorization, (4) a declaration that the OWP will infringe the copyrights of Plaintiffs and others, (5) an injunction that prohibits Defendants from proceeding with the OWP, and (6) the impoundment of all unauthorized digital copies within Defendants’ possession.
MOTIONS FOR JUDGMENT ON THE PLEADINGS I. DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS Defendants seek dismissal of the Associational Plaintiffs on standing grounds to the extent they assert the rights of their members. Defendants argue that the Associational Plaintiffs are precluded from representation of their members on both constitutional and statutory bases. The Associational Plaintiffs respond that they are ideally suited to represent the largely identical copyright claims of their members. Pls.’ Opp’n to Defs.’ J. Pleadings 4. They do not, however, address the crux of Defendants’ argument, which is that the Copyright Act simply does not include
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this type of standing.7 I hold that the Associational Plaintiffs have satisfied Article III standing requirements and that the issues pertaining to the rights of their members are therefore justiciable. As a matter of statutory standing under the Copyright Act, however, the domestic Associational Plaintiffs are precluded from enforcing those rights. The issue of statutory standing for the foreign associations has not been properly presented to the Court, and I decline to speculate on the operation of those foreign laws.
Defendants further seek dismissal of claims involving the OWP as not ripe for adjudication. Plaintiffs’ claims concern the OWP as it may exist in the future, not as it existed before HathiTrust abandoned the original program. As I later explain, I do not know and cannot anticipate whether the features of that hypothetical program will raise the same issues that possibly defeated the first OWP, assuming there will even be a renewed OWP. A. Legal Standard
“A Rule 12(c) motion for judgment on the pleadings based upon a lack of subject matter jurisdiction is treated as a Rule 12(b)(1) motion to dismiss the complaint.” United States v. Comprehensive Cmty. Dev. Corp., 152 F. Supp. 2d 443, 448–49 (S.D.N.Y. 2001). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. B. Constitutional and Prudential Standing of the Associational Plaintiffs
For reasons similar to those stated by the court in the suit against Google brought by many of the same associations, the constitutional basis for standing is satisfied. Author’s Guild v. Google, Inc., Nos. 05 Civ. 8136 & 10 Civ. 2977, 2012 WL 1951790, at *6 (S.D.N.Y. May 31, 2012). To assert standing as a representative of its members, an association must meet the constitutional requirements described by the Supreme Court in Washington State Apple Advertising Commission v. Hunt, 432 U.S. 333, 343 (1977). In Hunt, the Supreme Court explained that “an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have
7 I gave Plaintiffs numerous opportunities to address this issue, which included a letter to the parties dated July 12, 2012. Plaintiffs failed to respond to Defendants’ argument that the text of the Copyright Act precludes associational standing. At oral argument on the parties’ motions for summary judgment, I again questioned Plaintiffs about their position with respect to Defendants’ statutory standing argument. Plaintiffs’ attorney responded that, “the question of whether or not a third prong of the Hunt Test as to whether the individual author has itself have to have a right is prudential.” Aug. 6, 2012 Tr. 22: 19–22. While I agree that the third prong of the Hunt test is prudential, this once again fails to answer the question of whether Congress has precluded associational standing in the text of the Copyright Act itself, a question of statutory interpretation and one that Plaintiffs have repeatedly sidestepped or obfuscated.
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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.” Id. Defendants challenge the first and third prongs.
As to the first prong, Defendants argue that the Associational Plaintiffs “have not made any specific allegations with respect to any copyright works held by their members.” Defs.’ Mem. J. Pleadings 9. In Building 7 Construction Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Devopment, Inc., 448 F.3d 138, 145 (2d Cir. 2006), the Second Circuit held that plaintiffs asserting associational standing need not “name names” in the complaint. Defendants’ argument that this case is distinguishable solely because it involved a different statute is unpersuasive.
As to the third prong, Defendants argue that the individual participation of the Associational Members will be required to demonstrate that Plaintiffs hold valid copyrights and to evaluate the fair-use defense. Defs.’ Mem. J. Pleadings 10–13. “[T]he third prong of the associational standing test is ‘prudential,’ not constitutional, and is ‘best seen as focusing on . . . matters of administrative convenience and efficiency.’ ” Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F. 3d 218, 229 (2d Cir. 2011) (quoting United Food & Commercial Workers Union Local 751 v. Brown Grp. Inc., 517 U.S. 544, 555–56 (1996)). “[T]he fact that a limited amount of individuated 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 (S.D.N.Y. 1997); see also N.Y. State Nat’l Org. of Women v. Terry, 886 F.2d 1339 (2d Cir. 1989). Where an association seeks an injunction or declaration that an entire practice is unlawful, courts have concluded that the individual proof required is limited. Nat’l Ass’n of Coll., 900 F. Supp. at 250 (explaining that associational standing would facilitate adjudication better than “requiring duplicative proof” from each member). The recent decision in Google, 2012 WL 1951790, at *5–6, addressed nearly identical arguments about the third prong of Hunt. The Google Court concluded that the limited amount of individual proof required to establish copyright ownership and the fair-use defense was insufficient to defeat associational standing. Id. Likewise, the Associational Plaintiffs here satisfy the Hunt test; both Article III and the prudential third prong of Hunt are satisfied. C. Statutory Standing of the Associational Plaintiffs
Copyright is a “creature of statute.” Stewart v. Abend, 495 U.S. 207, 251 (1990). It “does not exist at common law—it originated, if at all, under the acts of [C]ongress.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663 (1834). As a result, “[n]o one can deny that [Congress has] the power to
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prescribe the conditions on which such right shall be enjoyed.” Id. at 663–64. Congress may define standing as to a particular cause of action more narrowly than what is constitutionally permitted.8 The unfortunate nomenclature is somewhat misleading. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 (1998) (“[A]n issue of statutory standing . . . has nothing to do with whether there is case or controversy under Article III.”); see also Radha Pathak, Statutory Standing and the Tyranny of Labels, 62 OKLA. L. REV. 89, 91 (2009). Whether Congress intended to provide statutory standing to associations is determined by the language of congressional enactments.9
The Court has subject-matter jurisdiction over the members’ individual copyright enforcement actions because the Associational Plaintiffs satisfy constitutional and prudential standing requirements and are therefore “entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). As to the issue of statutory standing—and as will be discussed more fully below—the domestic Associational Plaintiffs simply may not assert the cause of action on which the third-party enforcement of its members’ copyrights depend. Put another way, those Associational Plaintiffs can win on behalf of only themselves, but can lose on behalf of their members as well.
Even though Defendants have successfully raised a fair-use defense as to the MDP and the HDL (discussed later), the questions of statutory standing and the merits of this case do not overlap and will be discussed separately. Cf. Steel Co., 523 U.S. at 97 n.2 (“[D]epending upon the asserted basis for lack of statutory standing, [the merits inquiry and the statutory standing inquiry] are sometimes identical, so that it would be exceedingly artificial to draw a distinction between the two.”); Roberts v. Hamer, 655 F.3d 578, 580 (6th Cir. 2011) (“The question [of whether a party has statutory standing] is closely related to the merits inquiry (oftentimes overlapping it) and is
8 Compare Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (holding that Title II of the Americans with Disabilities Act (“ADA”) “evinces a congressional intention to define standing to bring a private action . . . as broadly as is permitted by Article III” (citation omitted)), with Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 92 (E.D.N.Y. 2005) (declining to extend Title II’s broad standing provision to Title III based on statutory language and limiting standing to a plaintiff who “himself must currently be suffering or be about to suffer discrimination”). Title II of the ADA provides a remedy to “any person alleging discrimination on the basis of disability.” 42 U.S.C. § 12133. Title III provides a cause of action “to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination.” 42 U.S.C. § 12188(a)(1). 9 See N.Y. Metro Area Postal Union v. Potter, No. 00 Civ. 8538, 2003 WL 1701909, at *2 (S.D.N.Y. Mar. 31, 2003) (concluding labor organization lacked standing to pursue claim under the Family and Medical Leave Act provision that provided a private right of action to an “eligible employee”); see also United Food & Commercial Worker Union, Local 1564 of N.M. v. Albertson’s, Inc., 207 F.3d 1193, 1201 (10th Cir. 2001) (concluding that Congress intended to bar labor organizations from suing on behalf of their members in Fair Labor Standards Act cases); Reid v. Dep’t of Commerce, 793 F.2d 277, 282 (Fed. Cir. 1986) (concluding that labor organization did not have standing to bring suit under Civil Service Act provision allowing for suits by “an employee”).
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analytically distinct from the question whether a federal court has subject-matter jurisdiction to decide the merits of a case.”).
1. Statutory Standing Under U.S. Law Although Article III is satisfied, the Authors Guild, the Australian Society of Authors Limited, and TWUC (collectively, “U.S. Associational Plaintiffs”) lack statutory standing.10 The Copyright Act’s standing clause explicitly limits who may enforce copyright claims: “the legal or beneficial owner of an exclusive right under a copyright is entitled . . . to institute an action for any infringement of that particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Courts in the Second Circuit have not explicitly addressed the issue of whether associational standing is permissible under the Copyright Act, but the language from several Second Circuit decisions suggests that there is no statutory standing for associations. See ABKO Music Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991) (“[T]he Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.”); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 32 n.3 (2d Cir. 1982); Plunket v. Doyle, No. 09 Civ. 11006, 2001 WL 175252, at *5 (S.D.N.Y. Feb. 22, 2001) (explaining that standing is limited to “(1) owners of copyrights and (2) persons who have been granted exclusive licenses by owners of copyrights” (internal quotation and citation omitted)). The limited case law available outside of this Circuit also suggests that statutory standing for associations is not permitted.11 In Silvers v. Sony Pictures Entertainment Inc., the court observed that although “[t]he statute does not say expressly that only a legal or beneficial owner . . . is entitled to sue . . . Congress’ explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.” 402 F.3d 881, 885, 890 (9th Cir. 2005) (en banc) (concluding that the language and history of the Act precluded assignment of an accrued copyright claim by a party that was neither a legal or beneficial owner of the copyright); see also Mullen v. Soc’y of Stage Directors & Choreographers, No. 06 C 6818, 2007 WL 2892654, *4
10 Certain of the foreign associations claim that they have standing by operation of foreign law. That argument is addressed infra in Motions for Judgment on the Pleadings Section II.C.2. 11 In both Olan Mills, Inc. v. Linn Photo Co., 795 F. Supp. 1423, 1427 (N.D. Iowa 1991), rev’d on other grounds, 23 F.3d 1345 (8th Cir. 1994), and Google, 2012 WL 1951789, at *6, the courts concluded that the constitutional standing requirements were satisfied as to associations that asserted copyright claims. The issue of whether Congress intended to provide a cause of action to associations, and so whether there was statutory standing, was not before the court in either case. Although courts must raise Article III standing requirements sua sponte, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), there is no similar requirement that they raise a statutory standing problem, which speaks to whether or not the elements of the cause of action are satisfied. Radha Pathak, Statutory Standing and the Tyranny of Labels, 62 OKLA. L. REV. 89, 114–15 (2009).
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(N.D. Ill. Sept. 30, 2007) (“[I]f USA [a guild] sought a declaratory judgment of copyright infringement or damages for copyright infringement against Plaintiffs, it would surely fail for lack of standing because it is [not] an ‘owner’ nor is it a ‘beneficial owner’ (e.g. a licensee) of any copyright at issue under the Copyright Act.”).
The Copyright Act is based on Congress’s power “[t]o promote the Progress of Science . . . , by securing for limited Times to Authors . . . the exclusive Right to . . . their . . . Writings.” U.S. Const. art. I, § 8, cl. 8. The basic purpose of copyright—to provide a limited monopoly for authors primarily to encourage creativity—further suggests that Congress did not intend for third-party enforcement of those rights. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”); see also Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.”). Regardless of whether associational standing is constitutional, I am convinced that Congress did not intend for associations to enforce the rights of their members, and so the U.S. Associational Plaintiffs lack standing under the Copyright Act.12
2. Statutory Standing Under Foreign Law Under the “national treatment” principle of the Berne Convention, Berne Convention art. 5(1), and the Universal Copyright Convention (“UCC”), “an author who is a national of one of the member states of either Berne or the UCC, or one who first publishes his work in any such member state, is entitled to the same copyright protection in each other member state as such other state accords to its own nationals.” Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 89 (2d Cir. 1998) (quoting NIMMER ON COPYRIGHT § 1.05 (1998)). The Second Circuit in Itar-Tass affirmed the district court’s holding that a reporters’ organization had standing to assert claims on behalf of its members after noting that Russian copyright law “authorizes the creation of organizations ‘for the collective administration of the economic rights of authors . . . in cases where the individual exercise thereof is hampered by difficulties of a practical nature.’ ” Id. at 90–94 (quoting Russian Copyright Law, art. 44(1)). The Second Circuit wrote, “UJR, the reporters’ organization, may well be able in this litigation to protect the rights of the reporters whose articles
12 My conclusion that the Copyright Act precludes associational standing in no way curtails the right of associations who own their own copyrights from asserting infringement claims as to those copyrights. Four of the Associational Plaintiffs, the Authors Guild, ALF, TWUC and ASA, assert a right to sue because they own and control copyrights that were digitized by Defendants.
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were copied.” Id. Although not explicit, the Second Circuit’s decision in Itar-Tass supports the view that whether a foreign association has satisfied the statutory standing requirements necessary to assert a claim is determined by foreign law.
Four of the Associational Plaintiffs, ALCS, UNEQ, NFF and SFF, assert that they have standing to sue on behalf of their members under foreign law.13 In total, the parties provide about three paragraphs of analysis on this issue. Defendants object that UNEQ, NFF and SFF lack standing because they have submitted interrogatories that admit that they are not the legal or beneficial owner of any works alleged to have been infringed by Defendants. Defs.’ Reply to Defs.’ J. Pleadings 4 n.4 (citing Itar-Tass, 153 F.3d at 91; Petersen Decl. ¶¶ 4–6; Petersen Decl. Ex. C UNEQ: Canada, at 5–6; Petersen Decl. Ex. D SFF: Sweden, at 5–6; Petersen Decl. Ex. E NFF: Norway, at 5–6). However, Defendants do not challenge the actual foreign law basis for the assertion of statutory standing by these three associations, see Itar-Tass, 153 F.3d at 93, nor do they offer any other argument as to why ALCS does not have statutory standing. As I explained earlier, Article III is satisfied as to the Associational Plaintiffs and the statutory standing requirements are “closely related to the merits inquiry . . . and analytically distinct from the question whether a federal court has subject-matter jurisdiction.” Roberts, 655 F.3d at 580. I decline to raise any other objections to the statutory standing of UNEQ, NFF, SFF or ALCS sua sponte, and Defendants’ motion for judgment on the pleadings is denied as to these associations. Cf. 181 East 73rd Street Co. v. 181 East 73rd Tenants Corp., 954 F.2d 45, 49 n.9 (2d Cir. 1992) (“This argument was not made by the parties and we decline to raise it sua sponte.”).
13 See Petersen Decl. Ex. F ALCS: UK at 5 (“Plaintiff has the right, by virtue of a mandate executed by certain of its members, including members whose works were digitized and reproduced by Defendants without authorization, to bring an action on behalf of such members against Defendants for infringing such members’ copyrights.”); Rosenthal Decl. Ex. C ALCS: U.K., Copyright, Designs and Patents Act (1988) § 101A (permitting a non-exclusive licensee to bring an action for copyright infringement if the “infringing act was directly connected to a prior licensed act of the licensee” and the license is in writing and “expressly grants the non-exclusive licensee a right of action under this section”); Rosenthal Decl. Ex. D UNEQ: Québec, Professional Syndicates Act, R.S.Q., ch. S-40, § 9(11) (“Professional syndicates may appear before the courts and acquire, by gratuitous or onerous title, any property suited to their particular objects . . . and in particular . . . (11) exercise before any court of law, all the rights of their members with respect to acts directly or indirectly prejudicial to the collective interest of the profession which they represent.”); Rosenthal Decl. Ex. E NFF: Norwegian Copyright Act §§ 38a, 38b (permitting an organization, “in the absence of any objection from the rightholder, [to] demand that a user who has not entered into [] an agreement . . . be prohibited by a court judgment from unlawfully exploiting a work”); Rosenthal Decl. Ex. F SFF: Sweden Member Agreement §§ 1, 2, 5 (“[T]he Author assigns the Organization, or the one the Organization puts in its stead, the right to independently manage the copyright of the Author’s published works.”).
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D. Ripeness of the Orphan Works Project The Complaint requests a declaration that the “distribution and display of copyrighted works
through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected” and an injunction that prohibits the OWP. Compl. Demand for Relief (a)(ii), (b)(iii). Plaintiffs seek a ruling on the OWP as it will exist, and not specifically as it existed at the moment that the initial complaint was filed. See also Pls.’ Mem. J. Pleadings 24–25 (“Absent an injunction, Defendants will proceed with the OWP and infringe the copyrights of Plaintiffs, the Associational Plaintiffs’ members and other unsuspecting authors and rights holders.”). Adjudication as to the OWP is not ripe for judicial review.14
“Article III of the Constitution limits the jurisdiction of the federal courts to cases or controversies ‘of sufficient immediacy and reality’ and not ‘hypothetical or abstract dispute[s].’ ” See, e.g., Hayes v. Carlin Am., Inc., 168 F. Supp. 2d 154, 159 (S.D.N.Y. 2001) (internal citations omitted). “Ripeness is a doctrine rooted in both Article III’s case or controversy requirement and prudential limitations on the exercise of judicial authority.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005). The determination of whether a claim is ripe is a twoprong inquiry that requires courts to “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
The claims here are not fit for adjudication. Were I to enjoin the OWP, I would do so in the absence of crucial information about what that program will look like should it come to pass and whom it will impact. Hayes, 168 F. Supp. 2d at 160 (concluding that a claim seeking declaratory judgment that plaintiff was the holder of the right to collect royalties during the copyright renewal term for works in their original term was not ripe because the court did not know whether a dispute would remain, whether it would involve the same parties, or what the relevant facts would be once the renewal term was reached). In addition, Plaintiffs suffer no hardship from litigation of this claim after Defendants release the details of their new OWP and a revised list of Orphan Work Candidates. If and when that time comes, they can request relief. “In assessing the possible hardship to the parties resulting from withholding judicial resolution, we ask whether the challenged action
14 Because I conclude that my review of the OWP is precluded on ripeness grounds, I need not address Defendants other arguments in opposition to my review of the OWP. Defendants argue that all of the Plaintiffs lack standing as to the OWP because the program was discontinued before any works became available and at the time that Plaintiffs filed the initial complaint, they failed to identify any of their works that were included in the program. Finally, Defendants argue that the OWP claims are moot.
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creates a direct and immediate dilemma for the parties. The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.” Connecticut v. Duncan, 612 F.3d 107, 115 (2d Cir. 2010) (quoting Simmonds v. INS, 326 F.3d 351, 360 (2d Cir. 2003)). The “mere possibility” that one of Plaintiffs’ works might be included on a future list of orphan works or made available is not enough. Defendants’ motion for judgment on the pleadings as to the OWP is granted.
II. PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiffs’ motion for partial judgment on the pleadings seeks a ruling that “Defendants’ admitted systematic reproduction, distribution, and use of millions of copyright-protected books are not shielded by the First Amendment, the fair-use defense, or any other provision of the Copyright Act.” Pls.’ Mem. J. Pleadings 1. A. Legal Standard A motion for judgment on the pleadings enables the moving party to have the court rule preferably in its favor based on the merits of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). The court applies the same standard in a Rule 12(c) motion as it does in a Rule 12(b)(6) motion, and the court must accept as true the allegations contained in the pleading and draw all reasonable inferences in favor of the non-moving party. L–7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). “A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law.” Citibank, N .A. v. Morgan Stanley & Co. Int’l, PLC, 724 F. Supp. 2d 407, 414 (S.D.N.Y. 2010). B. Availability of Fair-Use Defense Section 107 provides a defense to a claim of copyright infringement on the grounds of fair use. Section 108 of the Copyright Act accords libraries the right to make a limited number of copies of certain works for specified purposes, and it explicitly states that “[n]othing in this section . . . in any way affects the right of fair use as provided by section 107.” 17 U.S.C. § 108(f)(4). In spite of the clear language that Section 108 provides rights to libraries in addition to fair-use rights that might be available, Plaintiffs argue that I should find that the Section 107 fair-use defense is precluded by Section 108 in this case.15
15 Plaintiffs also argue that this program is “systematic” in violation of Section 108(g). Pls.’ Reply to Pls.’ J. Pleadings 11. Defendants respond that “systematic” means reproducing a single work repeatedly, rather than reproducing all the works in their libraries. Defs.’ Opp’n to Pls.’ J. Pleadings (citing 17 U.S.C. § 108(g) (prohibiting systematic reproduction of “the same material”)). I agree.
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In support of their argument, Plaintiffs first argue that “the specific governs the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 344 (1992). Because Section 108 provides “highly-specific rules governing the extent to which libraries are permitted to make digital copies of works in their collection,” Plaintiffs argue that Section 107 is unavailable as a defense. Pls.’ Mem. J. Pleadings 21. However, the doctrine that the specific governs the general applies when “applying a general provision . . . would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511 (1996) (emphasis added); see also Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1993) (rejecting argument that Section 117, which permits the owner of a computer program to make certain copies, preempts the fair-use defense under Section 107). Here, fair use does not undermine Section 108, but rather supplements it.
Plaintiffs also argue that the legislative history suggests that fair use is not available as a defense for Defendants. They cite a 1983 Report on Section 108, in which the Copyright Office stated: “[M]uch of ‘108’ photocopying would be infringing but for the existence of that section, thus leaving section 107 often clearly unavailable as a basis for photocopying not authorized by section 108.” Pls.’ Mem. J. Pleadings 22–23 (quoting REGISTER OF COPYRIGHTS, REPORT OF THE REGISTER OF COPYRIGHTS, LIBRARY REPRODUCTION OF COPYRIGHTED WORKS (17 U.S.C. 108), at 96 (1983)).16 Defendants respond that the Report merely concludes that courts should take “into account the ‘108’ copying that has already occurred” when they evaluate the assertion of fair use for library photocopying. LIBRARY REPRODUCTION OF COPYRIGHTED WORKS 98.17
The briefs submitted by Defendant Intervenors and the Library Amici, to whom I granted leave to file a memorandum as amici curiae, further convince me that fair use is available as a defense for the Defendants, and nothing Plaintiffs submitted convinces me that fair use is unavailable as a defense, or that the manner of reproduction is prohibited simply because it does not fall within Section 108.
16 Plaintiffs also cite the Second Circuit’s decision in Universal City Studios, Inc. v. Colrey, 273 F.3d 429 (2d Cir. 2001), in support of this reading of the Copyright Act. In that case, the Second Circuit analyzed a fair-use savings clause contained in the Digital Millennium Copyright Act (“DMCA”) in evaluating a claim under Section 1201 for circumventing technical measures that control access to a copyrighted work. The savings clause there indicated that “[n]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title.” 17 U.S.C. § 1201(c). The Second Circuit interpreted the clause as meaning that fair use was available as a defense to a claim of copyright infringement for material obtained by the circumvention, but not to the unlawful circumvention itself. Corley, 273 F.3d at 443. 17 This does not suggest that Congress intended to preclude the fair-use defense where a library’s actions fall outside of Section 108. See H.R. Rep. No. 94-1476, at 78–79 (1976) (“Nothing in section 108 impairs the applicability of the fairuse doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes.”).
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C. Availability of Other Defenses Plaintiffs barely address the other proposed defenses asserted by Defendants to protect the
MDP and OWP. In one paragraph, Plaintiffs argue that Section 108 prevents libraries from asserting other potential rights and defenses besides fair use, including Sections 109 (first sale), 110 (exemptions of certain performances and displays), and 121 (reproductions for the blind) and the First Amendment. Pls.’ Mem. J. Pleadings 23. No case law is cited. Plaintiffs’ motion for judgment on the pleadings that Defendants have no defenses available to them as a matter of law is denied.
MOTIONS FOR SUMMARY JUDGMENT I. LEGAL STANDARD
A district court may not grant summary judgment if there exists a genuine issue of material fact. See Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). “For summary judgment purposes, a ‘genuine issue’ exists where the evidence is such that a reasonable jury could decide in the nonmoving party’s favor.” Cambridge Realty Co., LLC v. St. Paul Fire & Marine Ins. Co., 421 F. Appx. 52, 53 (2d Cir. 2011) (internal citations omitted). “Fair use is a mixed question of law and fact.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). Courts resolve fair use at the summary judgment stage where there are no genuine issues of material fact. See Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998); see also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 117 (2d Cir. 1998) (affirming district court’s grant of summary judgment where defendant asserted fair-use defense).
II. FAIR USE To establish a prima facie case of copyright infringement, a plaintiff must demonstrate “ownership of a valid copyright” and “copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Plaintiffs identify 116 works (the “Identified Works”) as to which they assert direct ownership of the copyrights and allege that Defendants copied the works. Defendants concede that Plaintiffs have established a prima facie case of infringement as to some of these works.18 Fair use is one defense to the establishment of a prima facie case of copyright infringement; it permits copies made for purposes
18 Defendants challenge Plaintiffs’ allegation that they have established a prima facie case of infringement as to several of the foreign works because Plaintiffs fail to provide proof of ownership under foreign law or proof that the works do not qualify as United States works. See, e.g., Defs.’ Opp’n to Pls.’ 56.1 ¶¶ 138, 140, 143. Defendants also challenge several of the other claims of copyright ownership. See, e.g., id. ¶ 142 (challenging ownership by Robinson because the copyright registrations “were not obtained within five years after the first publication of the work”).
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of scholarship, teaching, and research. 17 U.S.C. § 107. It is Defendants’ burden to establish this affirmative defense to Plaintiffs’ claims of copyright infringement. See Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1994). A defendant need not prevail with respect to each of the four enumerated fair-use factors to succeed on a fair-use defense. NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004). Rather, the factors are “explored and weighed together, in light of copyright’s purpose.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569 (1994). “The ultimate focus is the goal of copyright itself, whether ‘promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.’ ” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., No. 11 Civ. 1006, 2012 WL 1759944, at *3 (S.D.N.Y. May 17, 2012) (quoting Castle Rock Entm’t, 150 F.3d at 141; U.S. Const. art, 1, § 8, cl. 8). Plaintiffs, Defendants, and Defendant Intervenors have each filed motions for summary judgment that argue that there is no genuine issue of material fact as to the fair-use factors. A. Purpose and Character of the Use
The first fair-use factor considers 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). The MDP was undertaken with several goals in mind. The MDP allows scholars to identify relevant works far more efficiently. Defs.’ 56.1 ¶¶ 18–23. In addition, the program helps Defendants preserve their collections in the face of normal deterioration during circulation, natural disasters, or other catastrophes that decimate library collections, as well as loss due to theft or misplacement. Id. ¶¶ 2, 11–13, 15.19 The program provides print-disabled individuals with “access to the wealth of information within library collections.” Id. ¶¶ 61–66; see also Defendant Intervenors 56.1 ¶ 1. Where the purpose of the use is for scholarship and research—uses explicitly mentioned in the preamble to Section 107—the Second Circuit has concluded that the first factor “tilt[s] in the defendants’ favor.” NXIVM Corp., 364 F.3d at 477.20
19 The argument that preservation on its own is a transformative use is not strong. See Texaco, 60 F.3d at 924 (“[T]he predominant archival purpose of the copying tips the first factor against the copier.”). However, the Supreme Court’s decision in Sony Corp. of America v. Universal City Studios, Inc., a case in which the Court held that private copying of television broadcasts for later viewing was a protected fair use, focused on the noncommercial nature of the use. 464 U.S. 417, 449, 454 (1984). Likewise, the preservation purposes of the Defendants are noncommercial in nature. See H.R. Rep. No. 94-1476, at 73 (1976) (“The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of ‘fair use.’ ”). 20 As explained in Motions for Summary Judgment Section III, infra, to the extent that the copying allows print-disabled individuals access to “previously published, non-dramatic literary work[s]” on an equal footing with sighted individuals, it is also potentially permitted under the Chafee Amendment. See 17 U.S.C. § 121. The ADA also provides strong support for the conclusion that the provision of access to print-disabled persons is a protected fair use.
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The character of the use also suggests that the first prong is satisfied. Several university libraries have entered into agreements with Google whereby Google converts the hard-copy works in their libraries into digital format. Defs.’ 56.1 ¶ 30. For works that are not in the public domain or for which an author has not “expressly authorized use,” a search for a particular term reveals the pages on which the term is found and the number of times the term is found on each page. Id. ¶ 50. No actual text from the book is revealed, id. ¶ 52, except to print-disabled library patrons at UM.21
Transformative uses are likely to satisfy the first factor. Campbell, 510 U.S. at 575 (“The central purpose of this investigation is to see . . . whether the new work merely supersede[s] the objects of the original creation . . . or 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.’ ”) (internal citations and quotation marks omitted). A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) (affirming district court’s conclusion that the use of entire copyrighted concert posters in a book “to document and represent the actual occurrence” of the concerts was different from the “dual purposes of artistic expression and promotion of the original use”). The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining.22
Several courts have upheld wholesale copying of works where the use and purpose for the copies was clearly distinguishable from those of the original. See A.V. v. iParadigms, LLC, 562 F.3d 630, 640 (4th Cir. 2009) (concluding that copying and archiving of student papers “was completely unrelated to expressive content and instead aimed at detecting and discouraging plagiarism”); Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (finding that Google’s copying
21 Other Defendants in HathiTrust may provide such access in the future. For a description of the way in which UM’s provision of access to print-disabled individuals has already revolutionized access for its users, see supra Background and see infra Motions for Summary Judgment Section III. 22 Mass digitization allows new areas of non-expressive computational and statistical research, often called “text mining.” One example of text mining is research that compares the frequency with which authors used “is” to refer to the United States rather than “are” over time. See Digital Humanities Amicus Br. 7 (“[I]t was only in the latter half of the Nineteenth Century that the conception of the United States as a single, indivisible entity was reflected in the way a majority of writers referred to the nation.”).
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of Internet content to make it searchable was transformative because “a search engine transforms the image into a pointer directing a user to a source of information”); Kelly v. Arriba Soft Corp., 336 F. 3d 811, 819 (9th Cir. 2003) (finding that copying to produce exact replicas of artistic works displayed in thumbnail form on the internet to facilitate searches was transformative because it was “unrelated to any aesthetic purpose”).23 Plaintiffs’ argument that the use is not transformative merely because defendants have not added anything “new” misses the point. Perfect 10, 508 F.3d at 1164 (“[E]ven making an exact copy of a work may be transformative so long as the copy serves a different function than the original work.”).24
Plaintiffs also argue that Defendants are not shielded from charges of copyright infringement by virtue of their status as educational non-profits. The cases they cite in support of this claim are cases where the use being made by the non-profit was not transformative, as it is here. See, e.g., Encyclopedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156, 1179 (W.D.N.Y. 1982) (concluding that fair use did not protect the actions of defendants, a non-profit educational organization, who videotaped plaintiff’s television programs, copied them, and distributed them to be shown in schools). Likewise, Plaintiffs’ argument that Defendants had a primarily “commercial” purpose when they allowed Google to digitize their libraries is without merit. Although Plaintiffs quote A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001), for the point that Defendants cannot make “unauthorized copies of copyrighted works . . . to save the expense of purchasing authorized copies,” this argument too is off the mark as to what Defendants use the copies for. While additional copies might have sufficed were Defendants’ goal solely preservation, the purchase of additional paper copies, or even electronic copies, would not have allowed Defendants to create a searchable inventory of their works or provide access to print-disabled individuals on an equal footing with sighted individuals. Defendants satisfy the first factor not
23 Although Plaintiffs assert that the decisions in Perfect 10 and Arriba Soft are distinguishable because in those cases the works were already available on the internet, Aug. 6, 2012 Tr. 19:2–4, I fail to see why that is a difference that makes a difference. As with Plaintiffs’ attempt to bar the availability of fair use as a defense at all, this argument relies heavily on the incorrect assumption that the scale of Defendants’ copying automatically renders it unlawful. Further, the student papers uploaded to a website to check for plagiarism in the iParadigms case were not available on the internet prior to the copying. 562 F.3d at 634. 24 The cases Plaintiffs cite are easily distinguishable. For example, in Texaco, 60 F.3d at 913, a corporation made photocopies of copyrighted articles for use by its researchers. The court concluded that the majority of the copies served “the same basic purpose that one would normally seek to obtain the original—to have it available on his shelf for ready reference.” Id. at 919. Likewise, in UMG Recordings, Inc. v MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000), the court found that conversion of CDs into computer files for use by users over the internet was not transformative because the use to which the copies were put was not different than the use for the originals.
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merely because they are non-profit institutions, but because the use to which the copies have been put is transformative.
The use of digital copies to facilitate access for print-disabled persons is also transformative.25 Print-disabled individuals are not considered to be a significant market or potential market to publishers and authors. Def. Intervenors’ MSJ 6 (citing Kerscher Decl. ¶ 17, 34). As a result, the provision of access for them was not the intended use of the original work (enjoyment and use by sighted persons) and this use is transformative. See, e.g., Perfect 10, 508 F.3d at 1165. Even if it were not, “[m]aking a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of a fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.” Sony Corp. of Am. v. Universal City Studios, Inc, 464 U.S. 417, 455 n.40 (1984). B. Nature of the Copyrighted Works
“[S]ome works are closer to the core of intended copyright protection than others.” Campbell, 510 U.S. at 586. Copying factual works is more likely fair use than copying creative works. Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006). However, where a use is transformative, the nature of the copyrighted works is not likely to “separate the fair use sheep from the infringing goats.” Campbell, 510 U.S. at 586; see also Harper & Row, 471 U.S. at 546. Here, Plaintiffs identify 116 works that they allege were unlawfully digitized by Defendants as part of the MDP. Pls.’ 56.1 ¶¶ 138–53. Approximately 76 percent of the identified works are fiction. Goldman Decl. ¶ 6. In the HDL as a whole, approximately 9 percent consists of prose fiction, poetry, and drama. Wilkin Decl. ¶ 67. Because the use is transformative, intended to facilitate key-word searches or access for print-disabled individuals, the second factor is not dispositive. Bill Graham, 448 F.3d at 612 (“[T]he second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.”). C. Amount of the Work Copied
The third fair-use factor considers whether the amount of copying was reasonable in relation to the purpose. Sony, 464 U.S. at 449–50. “[T]he extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586–87. The question is whether “no more was taken than necessary.” Id. at 587. Sometimes it is necessary to copy entire works. Bill Graham, 448 F.3d at 613; Arriba Soft, 336 F.3d at 821. “Intermediate” copies may not be infringing when
25 Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13–12:8.
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that copying is necessary for fair use. See Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 206 (4th Cir. 1998) (finding that it was fair use to copy fragile manuscript so that the author of a critical review could study it without inflicting damage). Here, entire copies were necessary to fulfill Defendants’ purposes of facilitation of searches and access for print-disabled individuals. See Arriba Soft, 336 F.3d at 821 (“If Arriba only copied part of the image, it would be difficult to identify it, thereby reducing the usefulness of the visual search engine.”). Plaintiffs argue that Defendants did not need to retain copies to facilitate searches; however, the maintenance of an electronic copy was necessary to provide access for print-disabled individuals.26 D. Impact on the Market for or Value of the Works
The fourth factor examines “whether the secondary use usurps the market of the original work.” NXCIM Corp., 364 F.3d at 482. Courts consider “only those [markets] that the creators of original works would in general develop or license others to develop.” Campbell, 510 U.S. at 591, 592 (“[W]hen . . . the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.”). Where a use is noncommercial, as it is here, the plaintiff must show “by a preponderance of the evidence that some meaningful likelihood of future harm exists”, Sony, 464 U.S. at 451, a test Plaintiffs fail at least on this fact pattern.27
Plaintiffs allege market harm on several distinct bases. First, they argue that “[e]ach digital copy of a book that Defendants created . . . rather than [purchased] through lawful channels, represents a lost sale.” Pls.’ MSJ 22. This argument ignores the fact that purchase of an additional copy would not have allowed either full-text searches or access for the print-disabled individuals, two transformative uses that are central to the MDP.
Plaintiffs’ second argument is that Defendants have “expose[d] Plaintiffs’ property to immense security risks that have the potential to cannibalize the book market through . . . widespread internet piracy.” Id. at 23. However, the expert economist that Plaintiffs rely on in support of this argument admitted that he was unfamiliar with the security procedures in place at the Universities. Edelman Dep. at 248:11–12 (“I don’t know about all of the security systems that [the
26 Not to mention that it would be a tremendous waste of resources to destroy the electronic copies once they had been made for search purposes, both from the perspective of the provision of access for print-disabled individuals and from the perspective of protecting fragile paper works from future deterioration. 27 Plaintiffs argue that Defendants uses cannot be considered noncommercial because of their relationship with Google. Pls.’ Opp’n to Defs.’ MSJ 12. Although the relationship between Google and Defendants is potentially relevant to the uses of the works made by Google, that issue is not before this Court. My determination that the Defendants’ uses are noncommercial relies on the uses actually made by Defendants in this case, that is, text searches, access for printdisabled persons, and preservation.
19

Case 1:11-cv-06351-HB Document 156 Filed 10/10/12 Page 20 of 23
Libraries] have.”). Defendants respond with a declaration from the individual in charge of security for the works in the HDL, who describes the security measures in place, Snavely Decl. ¶¶ 6–27, and notes that the Libraries have been certified as a trustworthy depository by the Center for Research Libraries. Id. ¶ 7; Wilkin Decl. ¶¶ 91–99. Plaintiffs’ unsupported argument fails to demonstrate a meaningful likelihood of future harm.
Finally, Plaintiffs argue that “Defendants activities will harm Plaintiffs by undermining existing and emerging licensing opportunities” such as a “collective management system [which would] permit certain of the activities of the Defendants in this case while providing compensation to copyright owners.” Pls.’ MSJ 25–27. Plaintiffs admit that they cannot identify “any specific, quantifiable past harm, or any documents relating to such past harm.” Petersen Decl. ¶¶ 2–21.28 Plaintiffs’ argument about a potential market is conjecture. Perfect 10, 508 F.3d at 1168 (rejecting argument that there was hypothetical harm to the market for thumbnail images on mobile phones). “Were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth factor would always favor the copyright owner.” Bill Graham, 448 F.3d at 614 (citation omitted). A copyright holder cannot preempt a transformative market. Id. Although Plaintiffs cite the Second Circuit’s decision in Texaco, 60 F.3d at 930, for the proposition that this Court ought to consider the “impact on potential licensing opportunities,” they omit the remainder of the quote, which concludes that courts should consider “only traditional, reasonable or likely to be developed markets.”29 Because I conclude that at least two of the uses are transformative—that is, the provision of search capabilities and access for print-disabled individuals—any harm arises, if at all, to a “transformative market.” Bill Graham, 448 F.3d at 614 (“Appellant asserts that it established a market for licensing its images, and in this case expressed a willingness to license images. . . . Neither of these arguments shows impairment to a traditional, as opposed to a transformative market.”). A use that “falls within a transformative market” does not cause the copyright holder to “suffer market harm due to the loss of license fees.”Id. at 615.
Defendants offer substantial evidence that it would be prohibitively expensive to develop a market to license the use of works for search purposes, access for print-disabled individuals, or preservation purposes. Waldfogel Decl. ¶¶ 7, 22–24 (estimating that the costs of such a license as to
28 The deposition of one of the Plaintiffs, in which he states that “colloquially, one copy of my book has been stolen,” May 31, 2012 Stiles Dep. Tr. 163:10, is unpersuasive because, as noted, the purchase of an additional copy would not have allowed Defendants to make the transformative uses of the works that they sought. 29 The use in Texaco was also a commercial, non-transformative use by a for-profit entity. 60 F.3d at 931.
20

Case 1:11-cv-06351-HB Document 156 Filed 10/10/12 Page 21 of 23
the works in the HDL would be in the neighborhood of $569 million and that the potential revenue generated would not cover these costs so it was not a “commercially viable endeavor”). This also assumes that the holder of each copyright could be identified, id. ¶ 24, a tenuous assumption to say the least. Plaintiffs characterize this as an argument that “it is permissible to steal the goods if it is too expensive to buy them.” Pls.’ MSJ 15. However, Defendants argue that the high costs will prohibit the formation of a viable market in the first place, and as a consequence there will be no one to buy the goods from. Although Plaintiffs assert that the Copyright Clearance Center (“CCC”) could eventually develop a license for the uses to which Defendants put the works, see Gervais Decl., the CCC has no plans to provide for or develop such a license. Petersen Opp’n Decl. ¶ 9. Even if Congress will eventually find a way to regulate this area of the law, “it is not the [court’s] job to apply laws that have not yet been written.” Sony, 464 U.S. at 456.
The provision of access for print-disabled individuals likewise does not significantly impact a market. Kerscher Decl. ¶ 34. At oral argument, Plaintiffs repeatedly emphasized that “only 32” print-disabled students had signed up to participate in the program at the UM. See, e.g., Aug. 6, 2012 Tr. 15:6–7. This argument only emphasizes that print-disabled individuals are a tiny minority, and the development of a market to provide them with access on the scale of the MDP is consequently almost impossible to fathom.30 This argument overlooks the fact that it is minorities such as this that Congress sought to protect through enactments like the ADA. E. Balancing the Fair-Use Factors
The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.31 In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the HDL. See Library Amici Br. (“The public derives tremendous benefit from HDL, and authors stand to gain very little if the public is deprived
30 Plaintiffs also argue that nonconsumptive research such as text mining, see supra note 22 and accompanying text, causes harm because authors might one day pay for licenses to use works in this manner. Again, the harm identified here is “speculative, and, at best, minimal.” Sony, 464 U.S. at 454 (citation omitted). 31 See supra note 18 and accompanying text.
21

Case 1:11-cv-06351-HB Document 156 Filed 10/10/12 Page 22 of 23
of this resource.”); Digital Humanities Amicus Br. (describing the use of metadata and text mining, which “could actually enhance the market for the underlying work, by causing researchers to revisit the original work and reexamine it in more detail”). Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP 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 ADA.32
III. ACCESS FOR PRINT-DISABLED INDIVIDUALS: THE ADA & COPYRIGHT LAW The provision of equal access to copyrighted information for print-disabled individuals is
mandated by the ADA and the Rehabilitation Act of 1976. The impetus for the ADA was Congress’ explicit conclusion that people with disabilities historically had been denied “the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous.” 42 U.S.C. § 12101(a)(8); Maurer Decl. ¶ 7 (“[Blind students] compete under a severe handicap. That handicap is not lack of sight, but a lack of access to information in a world in which information is the key to success.”). To begin to remedy this injustice, the ADA “provide[s] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Id. § 12101(b)(1). Congress imposed on institutions an obligation to provide equal access and recognized that “technological advances . . . may require public accommodations to provide auxiliary aids and services in the future which today they would not be required because they would be held to impose undue burdens on such entities.” H.R. Rep. 101-485(II), at 108 (1990).
Under the Chafee Amendment to the Copyright Act, “authorized entit(ies)” are permitted “to reproduce or distribute copies . . . of a previously published, non-dramatic literary work . . . in specialized formats exclusively for use by the blind or other persons with disabilities.” 17 U.S.C. § 121. An “authorized entity” is a nonprofit organization or governmental agency “that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” Id. at § 121(d)(1). The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute
32 As noted supra Motions for Judgment on the Pleadings Section II.B, Congress expanded the copying permitted to libraries with the enactment of Section 108. I need not decide if the MDP fits within the parameters of 17 U.S.C. § 108 because it unquestionably fits within the definition of fair use. See 17 U.S.C. § 108(f)(4) (stating that this section “in [no] way affects the right of fair use as provided by section 107”).
22

Case 1:11-cv-06351-HB Document 156 Filed 10/10/12 Page 23 of 23

their collections to print-disabled individuals, making each library a potential "authorized entity" under the Chafee Amendment. So far, only UM has made its works available to print-disabled individuals, and its Declarations make it clear that it had a primary goal to improve access for print­ disabled individuals. Kerscher Decl. ~ 30. I conclude that UM has "a primary mission" to provide access for print-disabled individuals, and it is consequently an authorized entity. The provision of access to previously published non-dramatic literary works within the HDL fits squarely within the Chafee Amendment, although Defendants may certainly rely on fair use, as explained above, to justify copies made outside of these categories or in the event that they are not authorized entities.33
CONCLUSION I have considered the parties' remaining arguments and find them to be without merit. For the foregoing reasons, Plaintiffs' motions are DENIED. Defendants' motion for judgment on the pleadings is GRANTED in part and DENIED in part: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs' OWP claims are not ripe. Defendants' and Defendant Intervenors' motious for sununary judgment are GRANTED: their participation in the MDP and the present application of the HDL are protected under fair use. The two unopposed motions for leave to ftle briefs as amici are GRANTED. The Clerk of the Court is instructed to close the seven open motions, close the case, and remove it from my docket.

SO ORDERED.

~ tuM, 1M""
HAROLD BAER., JR. United States District Judge

33 Plaintiffs' suggestion at oral argwnent that the Chafee Amendment defllles the outer bounds of protected copying on behalf of print-disabled individuals, Aug. 6, 2Q12 Tr. 21:3-4, is without merit. Nothing in the Chafee Amendment indicates an intent to preclude a fair-use defense as to copies made to facilitate access for the blind that do not fall within its ambit.
23

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------)( THE AUTHORS GUILD, INC., et al.,
Plaintiffs,
-against-
HATHITRUST, et al., Defendants.
-----------------------------------------------------------)(

--··--~---·=========~
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC#:
DATE FILED~:--/o -h t-f, ..___
11 CIVIL 6351 (HB)
JUDGMENT

Whereas before the Court are two motions for judgment on the pleadings and three motions for summary judgment; also before the Court are two unopposed motions for leave to file briefs as amici, and the matter having come before the Honorable Harold Baer, Jr., United States District Judge, and the Court, on October 10, 2012, having rendered its Opinion and Order denying Plaintiffs' motions, granting in part and denying in part Defendants' motion for judgment on the pleadings: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs' OWP claims are not ripe, granting Defendants' and Defendant Intervenors' motions for summary judgment: their participation in the MDP and the present application ofthe HDL are protected under fair use, and granting the two unopposed motions for leave to file briefs as amici, it is,
ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the
Court's Opinion and Order dated October 10, 2012, Plaintiffs' motions are denied; Defendants' motion for judgment on the pleadings is granted in part and denied in part: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs' OWP claims are not ripe; Defendants' and Defendant Intervenors' motions for summary judgment are granted: their participation in the MDP and the present application of the HDL are

protected under fair use; and the two unopposed motions for leave to file briefs as amici are granted;

accordingly, the case is closed.

Dated: New York, New York October 12, 2012

RUBY J. KRAJICK
Clerk of Court BY:
Deputy Clerk

THIS DOCUME1 ~ 1 WAS ENTERED ONTHEDOCKETON ________

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 Case 1:11-cv-06351-HB Document 173 Filed 02/15/13 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------It THE AUTHORS GUILD, INC., et aI.,
Plaintiffs,
- against-
HATIDTRUST, et al.,

USDSSDNY

DOCUMENT

ELECTRONICALLY FILED

DOC#:

/

/

­ DATE FILED: ~ (':7 _..... ".

I'" )

11 CV 6351 (DB)

MEMORANDUM ORDER

Defendants.
---------------------------------------------------------------It
Hon. Harold Baer, Jr., District Judge: On October 10,2012, I granted the defendants' ("Libraries") and the defendant-intervenors'
("NFB") motions for summary judgment and held, among other things, that their participation in the Mass Digitization Project and the present application of the HathiTrust Digital Library are protected under fair use. See Authors Guild, Inc. v. HathiTrust, No. 11 Civ. 6351,2012 WL 4808939, at *15 (S.D.N.Y. Oct. 10,2012). Familiarity with that Opinion and Order is assumed. The Libraries and NFB now move for costs and attorneys' fees under Rule 54(d) of the Federal Rules of Civil Procedure and the Copyright Act, 17 U.S.C. § 505. The motions are denied.
Section 505 of the Copyright Act provides that "[i]n any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. The determination is to be guided by equitable considerations, and the standard is identical for prevailing plaintiffs or defendants. See Matthew Bender & Co., Inc. v. W Pub. Co., 240 F.3d 116, 121-22 (2d Cir. 2001)(citing Fogerty v. Fantasy, 510 U.S. 517,534 (1994». There is no exclusive list of factors for a court to consider, but a determination is generally driven by the strength of the prevailing party's case and the amount of damages or other relief the party obtained. See id (listing as examples "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence" (internal quotation marks omitted». The use of the factors must be "faithful to the purposes ofthe Copyright Act." Fogerty, 510 U.S. at 534 n.19. And ''the imposition of a fee award against a copyright holder with an objectively reasonable litigation position will generally not promote the purposes of the Copyright Act." Matthew Bender, 240 F.3d at 122.

1

Case 1:11-cv-06351-HB Document 173 Filed 02/15/13 Page 2 of 2

In balancing the fair-use factors, I concluded that copyright law's "goal of promoting the Progress of Science would be better served by allowing the use than by preventing it." HathiTrust, 2012 WL 4808939, at *14 (internal quotation marks omitted). The Libraries and NFB argue that because the purpose of copyright is to "enrich[] the general public through access to creative works," Fogerty, 510 U.S. at 527, and because I found the HathiTrust Digital Library to be an "invaluable contribution to the progress of science and cultivation ofthe arts," HathiTrust, 2012 WL 4808939, at *14, they alone are to be rewarded for advancing the purposes of copyright in this litigation. But if that's so, wasn't it the plaintiffs and defendants together who by their advocacy helped delineate the respective rights of creators and users? The HathiTrust Digital Library exists to promote greater access-but access to what? The works of authors.
Further, while the Authors Guild's arguments "were ultimately unpersuasive," that does not mean its claims were necessarily "legally [or] factually unreasonable." Russian Entm 't Wholesale, Inc. v. Close-Up Int'l, Inc., 482 F. App'x 602, 607 (2d Cir. 2012). The Libraries and NFB make much of a few specific areas where more could have been expected of the Authors Guild (such as § 108, statutory standing, and the ripeness of the Orphan Works Project). But on the larger question of how copyright law (and the Americans with Disabilities Act) will account for changes in technology, the Authors Guild and the other plaintiffs acted reasonably. The purposes of copyright would not be furthered were I to discourage similar participation in the future. When the Orphan Works Project is ripe, for example, I fully expect authors to protect their rights, and I will not stand in their way by penalizing them here.
The motions for costs and attorneys' fees are denied. The Clerk of Court is instructed to close the open motions.

SO ORDERED.
Date: 1-iz' ~ Ito')
NewYor ,New York

HAROLD BAER, JR. United States District Judge

2 


 
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12‐4547‐cv Authors Guild, Inc. v. HathiTrust
1:11-cv-06351-HB

1

In the

2

United States Court of Appeals

3

For the Second Circuit

4

________

USDC SDNY

5

DOCUMENT

6

August Term, 2013 ELECTRONICALLY FILED

7

DOC #: _________________

8

No. 12‐4547‐cv DATE FILED: _J_u_n_e_1_0_,_2_0_1_4__

9

10

AUTHORS GUILD, INC., AUSTRALIAN SOCIETY OF AUTHORS LIMITED,

11

UNION DES ECRIVAINES ET DES ECRIVAINS QUEBECOIS, ANGELO

12 LOUKAKIS, ROXANA ROBINSON, ANDRE ROY, JAMES SHAPIRO, DANIELE

13

SIMPSON, T.J. STILES, FAY WELDON, AUTHORS LEAGUE FUND, INC.,

14

AUTHORS’ LICENSING AND COLLECTING SOCIETY, SVERIGES

15

FORFATTARFORBUND, NORSK FAGLITTERAER FORFATTER‐OG

16 OVERSETTERFORENING, WRITERS’ UNION OF CANADA, PAT CUMMINGS,

17

ERIK GRUNDSTROM, HELGE RONNING, JACK R. SALAMANCA,

18

Plaintiffs‐Appellants,

19

20

v.

21

22 HATHITRUST, CORNELL UNIVERSITY, MARY SUE COLEMAN, President,

23 University of Michigan, JANET NAPOLITANO, President, University of

24 California, RAYMOND W. CROSS, President, University of Wisconsin

25

System, MICHAEL MCROBBIE, President, Indiana University,

26

Defendants‐Appellees,1

27

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we automatically substitute the current president of the University of California, Janet Napolitano, and the current president of the University of Wisconsin System, Raymond W. Cross, in place of their predecessors‐in‐office.

CERTIFIED COPY ISSUED ON 06/10/2014

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2

No. 12‐4547‐cv

1

NATIONAL FEDERATION OF THE BLIND, GEORGINA KLEEGE,

2

BLAIR SEIDLITZ, COURTNEY WHEELER, ELLEN HOLLOMAN,

3

Intervenor Defendants‐Appellees.2

4

________

5

6

Appeal from the United States District Court

7

for the Southern District of New York.

8

No. 11 CV 6351(HB) ― Harold Baer, Jr., Judge.

9

________

10

11

Argued: October 30, 2013

12

Decided: June 10, 2014

13

________

14

15

Before: WALKER, CABRANES, and PARKER, Circuit Judges.

16

________

17

18

Plaintiff‐appellant authors and authors’ associations appeal a

19 judgment of the United States District Court for the Southern

20 District of New York (Harold Baer, Jr., Judge) granting summary

21 judgment to defendants‐appellees and dismissing claims of

22 copyright infringement. In addition, the court dismissed the claims

23 of certain plaintiffs‐appellants for lack of standing and dismissed

24 other copyright claims as unripe. We hold, as a threshold matter,

25 that certain plaintiffs‐appellants lack associational standing. We also

26 hold that the doctrine of “fair use” allows defendants‐appellees to

27 create a full‐text searchable database of copyrighted works and to

28 provide those works in formats accessible to those with disabilities,

29 and that the claims predicated upon the Orphan Works Project are

30 not ripe for adjudication. We vacate so much of the judgment as is

2 The Clerk of Court is directed to amend the caption as set forth above.

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3

No. 12‐4547‐cv

1 based on the district court’s holding related to the claim of 2 infringement predicated upon defendants‐appellees’ preservation of 3 copyrighted works, and we remand for further proceedings on that 4 issue. Affirmed, in part; vacated, in part.

5

________

6

EDWARD H. ROSENTHAL (Jeremy S. Goldman,

7

Anna Kadyshevich, on the brief), Frankfurt Kurnit

8

Klein & Selz, P.C., New York, NY, for Plaintiffs‐

9

Appellants.

10

JOSEPH PETERSEN (Robert Potter, Joseph Beck,

11

Andrew Pequignot, Allison Scott Roach, on the

12

brief), Kilpatrick Townsend & Stockton LLP, New

13

York, NY, for Defendants‐Appellees.

14

DANIEL F. GOLDSTEIN (Jessica P. Weber, on the

15

brief), Brown Goldstein & Levy, LLP, Baltimore,

16

MD; Robert J. Bernstein, New York, NY, on the

17

brief; Peter Jaszi, Chevy Chase, MD, on the brief, for

18

Intervenor Defendants‐Appellees.

19

Jennifer M. Urban, Pamela Samuelson, David

20

Hansen, Samuelson Law, Technology & Public

21

Policy Clinic, University of California, Berkeley,

22

School of Law, Berkeley, CA, for Amici Curiae 133

23

Academic Authors.

24

Blake E. Reid, Brian Wolfman, Institute for Public

25

Representation, Georgetown University Law

26

Center, Washington, DC, for Amicus Curiae

27

American Association of People with Disabilities.

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4

No. 12‐4547‐cv

1

Jonathan Band, Jonathan Band PLLC,

2

Washington, DC, for Amicus Curiae American

3

Library Association.

4

David Leichtman, Hillel I. Parness, Shane D. St.

5

Hill, Robins, Kaplan, Miller & Ciresi L.L.P., New

6

York, NY, for Amicus Curiae American Society of

7

Journalists and Authors, Inc.

8

Brian G. Joseph, Karyn K. Ablin, Wiley Rein LLP;

9

Ada Meloy, General Counsel, American Council

10

on Education, Washington, DC, for Amici Curiae

11

American Council on Education, Association of

12

American Universities, et al.

13

Elizabeth A. McNamara, Alison B. Schary, Colin

14

J. Peng‐Sue, Davis Wright Tremaine LLP, New

15

York, NY, for Amicus Curiae the Associated Press.

16

Mary E. Rasenberger, Nancy E. Wolff, Eleanor M.

17

Lackman, Nicholas J. Tardif, Cowan DeBaets,

18

Abrahams & Sheppard LLP, New York, NY, for

19

Amicus Curiae Association of American Publishers.

20

Jo Anne Simon, Mary J. Goodwin, Amy F.

21

Robertson, Jo Anne Simon, P.C., Brooklyn, NY, for

22

Amici Curiae Association on Higher Education and

23

Disability, Marilyn J. Bartlett, et al.

24

Brandon Butler, Washington, DC, for Amici Curiae

25

Beneficent Technolology, Inc., and Learning Ally, Inc.

26

Susan M. Kornfield, Bodman PLC, Ann Arbor,

27

MI, for Amici Curiae Board of Trustees of the

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5

No. 12‐4547‐cv

1

University of Illinois, Board of Trustees of Michigan

2

State University, et al.

3

Jason Schultz, Berkeley, CA; Matthew Sag,

4

Chicago, IL, for Amici Curiae Digital Humanities

5

and Law Scholars.

6

Michael Waterstone, Los Angeles, CA; Robert

7

Dinerstein, Washington, DC; Christopher H.

8

Knauf, Knauf Associates, Santa Monica, CA;

9

Michael Stein, Cambridge, MA, for Amici Curiae

10

Disability Law Professors.

11

Roderick M. Thompson, Stephanie P. Skaff,

12

Deepak Gupta, Rochelle L. Woods, Farella Braun

13

+ Martel LLP, San Francisco, CA; Corynne

14

McSherry, Daniel Nazer, Electronic Frontier

15

Foundation, San Francisco, CA; John Bergmayer,

16

Public Knowledge, Washington, DC; David Sohn,

17

Center for Democracy & Technology,

18

Washington, DC, for Amicus Curiae Electronic

19

Frontier Foundation.

20

Stephen M. Schaetzel, Meunier Carlin &

21

Curfman, LLC, Atlanta, GA, for Amicus Curiae

22

Emory Vaccine Center.

23

Frederick A. Brodie, Pillsbury Winthrop Shaw

24

Pittman LLP, New York, NY, for Amicus Curiae the

25

Leland Stanford Junior University.

26

Eric J. Grannis, The Law Offices of Eric J. Grannis,

27

New York, NY, for Amici Curiae Medical Historians.

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6

No. 12‐4547‐cv

1

Steven B. Fabrizio, Kenneth L. Doroshow, Steven

2

R. Englund, Jenner & Block LLP, Washington,

3

DC, for Amicus Curiae Motion Picture Association of

4

America, Inc.

5

________

6 BARRINGTON D. PARKER, Circuit Judge:

7

Beginning in 2004, several research universities including the

8 University of Michigan, the University of California at Berkeley,

9 Cornell University, and the University of Indiana agreed to allow

10 Google to electronically scan the books in their collections. In

11 October 2008, thirteen universities announced plans to create a

12 repository for the digital copies and founded an organization called

13 HathiTrust to set up and operate the HathiTrust Digital Library (or

14 “HDL”). Colleges, universities, and other nonprofit institutions

15 became members of HathiTrust and made the books in their

16 collections available for inclusion in the HDL. HathiTrust currently

17 has 80 member institutions and the HDL contains digital copies of

18 more than ten million works, published over many centuries,

19 written in a multitude of languages, covering almost every subject

20 imaginable. This appeal requires us to decide whether the HDL’s

21 use of copyrighted material is protected against a claim of copyright

22 infringement under the doctrine of fair use. See 18 U.S.C. § 107.

23

BACKGROUND

24

A. The HathiTrust Digital Library

25

HathiTrust permits three uses of the copyrighted works in the

26 HDL repository. First, HathiTrust allows the general public to search

27 for particular terms across all digital copies in the repository. Unless

28 the copyright holder authorizes broader use, the search results show

29 only the page numbers on which the search term is found within the

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1 work and the number of times the term appears on each page. The 2 HDL does not display to the user any text from the underlying 3 copyrighted work (either in “snippet” form or otherwise). 4 Consequently, the user is not able to view either the page on which 5 the term appears or any other portion of the book.

6

Below is an example of the results a user might see after

7 running an HDL full‐text search:

8
9 J.A. 681 ¶ 80 (Wilkin Decl.).

10

Second, the HDL allows member libraries to provide patrons

11 with certified print disabilities access to the full text of copyrighted

12 works. A “print disability” is any disability that prevents a person

13 from effectively reading printed material. Blindness is one example,

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1 but print disabilities also include those that prevent a person from 2 physically holding a book or turning pages. To use this service, a 3 patron must obtain certification of his disability from a qualified 4 expert. Through the HDL, a print‐disabled user can obtain access to 5 the contents of works in the digital library using adaptive 6 technologies such as software that converts the text into spoken 7 words, or that magnifies the text. Currently, the University of 8 Michigan’s library is the only HDL member that permits such 9 access, although other member libraries intend to provide it in the 10 future.

11

Third, by preserving the copyrighted books in digital form,

12 the HDL permits members to create a replacement copy of the work,

13 if the member already owned an original copy, the member’s

14 original copy is lost, destroyed, or stolen, and a replacement copy is

15 unobtainable at a “fair” price elsewhere.

16

The HDL stores digital copies of the works in four different

17 locations. One copy is stored on its primary server in Michigan, one

18 on its secondary server in Indiana, and two on separate backup

19 tapes at the University of Michigan.3 Each copy contains the full text

20 of the work, in a machine readable format, as well as the images of

21 each page in the work as they appear in the print version.

22

B. The Orphan Works Project

23

Separate and apart from the HDL, in May 2011, the University

24 of Michigan developed a project known as the Orphan Works

25 Project (or “OWP”). An “orphan work” is an out‐of‐print work that

3 Separate from the HDL, one copy is also kept by Google. Google’s use of its copy is the subject of a separate lawsuit currently pending in this Court. See Authors Guild, Inc. v. Google, Inc., 721 F.3d 132 (2d Cir. 2013), on remand, 954 F. Supp. 2d 282 (S.D.N.Y. 2013), appeal docketed, No. 13‐4829 (2d Cir. Dec. 23, 2013).

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1 is still in copyright, but whose copyright holder cannot be readily 2 identified or located. See U.S. Copyright Office, Notice of Inquiry, 3 Orphan Works and Mass Digitization, 77 Fed. Reg. 64555 (Oct. 22, 4 2012).

5

The University of Michigan conceived of the OWP in two

6 stages: First, the project would attempt to identify out‐of‐print

7 works, try to find their copyright holders, and, if no copyright

8 holder could be found, publish a list of orphan works candidates to

9 enable the copyright holders to come forward or be otherwise

10 located. If no copyright holder came forward, the work was to be

11 designated as an orphan work. Second, those works identified as

12 orphan works would be made accessible in digital format to the

13 OWP’s library patrons (with simultaneous viewers limited to the

14 number of hard copies owned by the library).

15

The University evidently became concerned that its screening

16 process was not adequately distinguishing between orphan works

17 (which were to be included in the OWP) and in‐print works (which

18 were not). As a result, before the OWP was brought online, but after

19 the complaint was filed in this case, the University indefinitely

20 suspended the project. No copyrighted work has been distributed or

21 displayed through the project and it remains suspended as of this

22 writing.

23

C. Proceedings in the District Court

24

This case began when twenty authors and authors’

25 associations (collectively, the “Authors”) sued HathiTrust, one of its

26 member universities, and the presidents of four other member

27 universities (collectively, the “Libraries”) for copyright infringement

28 seeking declaratory and injunctive relief. The National Federation of

29 the Blind and three print‐disabled students (the “Intervenors”) were

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1 permitted to intervene to defend their ability to continue using the 2 HDL.

3

The Libraries initially moved for partial judgment on the

4 pleadings on the ground that the authors’ associations lacked

5 standing to assert claims on behalf of their members and that the

6 claims related to the OWP were not ripe. See Fed. R. Civ. P. 12(c).

7 The Libraries then moved for summary judgment on the remaining

8 claims on the ground that their uses of copyrighted material were

9 protected by the doctrine of fair use, see 17 U.S.C. § 107, and also by

10 the Chafee Amendment, see id. § 121. The Intervenors moved for

11 summary judgment on substantially the same grounds as the

12 Libraries and, finally, the Authors cross‐moved for summary

13 judgment.

14

D. The District Court’s Opinion

15

The district court granted the Libraries’ and Intervenors’

16 motions for summary judgment on the infringement claims on the

17 basis that the three uses permitted by the HDL were fair uses. In this

18 assessment, the district court gave considerable weight to what it

19 found to be the “transformative” nature of the three uses and to

20 what it described as the HDL’s “invaluable” contribution to the

21 advancement of knowledge, Authors Guild, Inc. v. HathiTrust, 902 F.

22 Supp. 2d 445, 460‐64 (S.D.N.Y. 2012). The district court explained:

23

Although I recognize that the facts here may on some

24

levels be without precedent, I am convinced that they

25

fall safely within the protection of fair use such that

26

there is no genuine issue of material fact. I cannot

27

imagine a definition of fair use that would not

28

encompass the transformative uses made by [the HDL]

29

and would require that I terminate this invaluable

30

contribution to the progress of science and cultivation of

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1

the arts that at the same time effectuates the ideals

2

espoused by the [Americans With Disabilities Act of

3

1990, Pub. L. No. 101‐336, 104 Stat. 327 (codified as

4

amended at 42 U.S.C. §§ 12101, et seq.)].

5 Id. at 464.

6

Next, the district court addressed the Libraries’ Chafee

7 Amendment defense. Under the Amendment, “authorized entities”

8 are permitted to reproduce or distribute copies of a previously

9 published, nondramatic literary work in specialized formats

10 exclusively for use by the blind or other persons with disabilities. See

11 17 U.S.C. § 121; HathiTrust, 902 F. Supp. 2d at 465. Under § 121, an

12 “‘authorized entity’ means a nonprofit organization or a

13 governmental agency that has a primary mission to provide

14 specialized services relating to training, education, or adaptive

15 reading or information access needs of blind or other persons with

16 disabilities.” 17 U.S.C. § 121(d)(1).

17

The district court stated that the ADA requires that libraries of

18 educational institutions, such as the Libraries in this case, “have a

19 primary mission to reproduce and distribute their collections to

20 print‐disabled individuals,” which, according to Judge Baer, made

21 “each library a potential ‘authorized entity’ under the Chafee

22 Amendment.” HathiTrust, 902 F. Supp. 2d at 465. As a result, the

23 district court concluded that “[t]he provision of access to previously

24 published non‐dramatic literary works within the HDL fits squarely

25 within the Chafee Amendment, although Defendants may certainly

26 rely on fair use . . . to justify copies made outside of these categories

27 or in the event that they are not authorized entities.” Id.

28

The district court held that certain associational plaintiffs

29 lacked standing under the Copyright Act and dismissed them from

30 the suit. Id. at 450‐55. The district court also held that the OWP

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1 claims were unripe for judicial review in the absence of crucial 2 information about what the program would look like and whom it 3 would affect should it be implemented, and because the Authors 4 would suffer no hardship by deferring litigation until such time as 5 the Libraries released the details of a new OWP and a revised list of 6 orphan work candidates. Id. at 455‐56. The court entered judgment 7 against the Authors, and this appeal followed.

8

DISCUSSION

9

We review de novo under well‐established standards the

10 district court’s decisions granting summary judgment and judgment

11 on the pleadings. See Maraschiello v. City of Buffalo Police Dep’t, 709

12 F.3d 87, 92 (2d Cir. 2013) (summary judgment); LaFaro v. N.Y.

13 Cardiothoracic Grp., PLLC, 570 F. 3d 471, 475 (2d Cir. 2009) (judgment

14 on the pleadings).

15

As a threshold matter, we consider whether the authors’

16 associations have standing to assert infringement claims on behalf of

17 their members.

18

Three of these authors’ associations—Authors Guild, Inc.,

19 Australian Society of Authors Limited, and Writers’ Union of

20 Canada—claim to have standing, solely as a matter of U.S. law, to

21 seek an injunction for copyright infringement on their members’

22 behalf. But, as we have previously explained, § 501 of “the

23 Copyright Act does not permit copyright holders to choose third

24 parties to bring suits on their behalf.” ABKCO Music, Inc. v.

25 Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991); see also Itar‐

26 Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d

27 Cir. 1998) (“United States law permits suit only by owners of ‘an

28 exclusive right under a copyright’ . . . .” (quoting 17 U.S.C. § 501(b))).

29 Accordingly, we agree with the district court that these associations

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1 lack standing to bring suit on behalf of their members, and they 2 were properly dismissed from the suit.

3

The remaining four authors’ associations—Union des

4 Écrivaines et des Écrivains Québécois, Authors’ Licensing and

5 Collecting Society, Sveriges Författarförbund, and Norsk faglitterær

6 forfattero og oversetterforening—assert that foreign law confers

7 upon them certain exclusive rights to enforce the copyrights of their

8 foreign members (an assertion that the Libraries do not contest on

9 this appeal). These four associations do have standing to bring suit

10 on behalf of their members. See Itar‐Tass, 153 F.3d at 93‐94

11 (recognizing that an association authorized by foreign law to

12 administer its foreign members’ copyrights has standing to seek

13 injunctive relief on behalf of those members in U.S. court).

14

I. Fair Use4

15

A.

16

As the Supreme Court has explained, the overriding purpose

17 of copyright is “‘[t]o promote the Progress of Science and useful Arts

18 . . . .’” Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569, 574 (1994)

19 (quoting U.S. CONST. art. I, § 8, cl. 8); see also Twentieth Century Music

20 Corp. v. Aiken, 422 U.S. 151, 156 (1975). This goal has animated

21 copyright law in Anglo‐American history, beginning with the first

22 copyright statute, the Statute of Anne of 1709, which declared itself

23 to be “[a]n Act for the Encouragement of Learning, by Vesting the

4 Plaintiffs argue that the fair use defense is inapplicable to the activities at issue here, because the Copyright Act includes another section, 108, which governs “Reproduction [of copyrighted works] by Libraries . . .” 17 U.S.C. § 108. However, section 108 also includes a “savings clause,” which states, “Nothing in this section in any way affects the right of fair use as provided by section 107 . . . .” § 108(f)(4). Thus, we do not construe § 108 as foreclosing our analysis of the Libraries’ activities under fair use, and we proceed with that analysis.

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1 Copies of Printed Books in the Authors . . . during the Times therein 2 mentioned.” Act for the Encouragement of Learning, 8 Anne, ch. 19. 3 In short, our law recognizes that copyright is “not an inevitable, 4 divine, or natural right that confers on authors the absolute 5 ownership of their creations. It is designed rather to stimulate 6 activity and progress in the arts for the intellectual enrichment of the 7 public.” Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. 8 REV. 1105, 1107 (1990).

9

The Copyright Act furthers this core purpose by granting

10 authors a limited monopoly over (and thus the opportunity to profit

11 from) the dissemination of their original works of authorship. See 17

12 U.S.C. §§ 102, 106, 302‐305. The Copyright Act confers upon authors

13 certain enumerated exclusive rights over their works during the

14 term of the copyright, including the rights to reproduce the

15 copyrighted work and to distribute those copies to the public. Id.

16 § 106(1), (3). The Act also gives authors the exclusive right to prepare

17 certain new works—called “derivative works”—that are based upon

18 the copyrighted work. Id. § 106(2). Paradigmatic examples of

19 derivative works include the translation of a novel into another

20 language, the adaptation of a novel into a movie or a play, or the

21 recasting of a novel as an e‐book or an audiobook. See id. § 101. As a

22 general rule, for works created after January 1, 1978, copyright

23 protection lasts for the life of the author plus an additional 70 years.

24 Id. § 302.

25

At the same time, there are important limits to an author’s

26 rights to control original and derivative works. One such limit is the

27 doctrine of “fair use,” which allows the public to draw upon

28 copyrighted materials without the permission of the copyright

29 holder in certain circumstances. See id. § 107 (“[T]he fair use of a

30 copyrighted work . . . is not an infringement of copyright.”). “From

31 the infancy of copyright protection, some opportunity for fair use of

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1 copyrighted materials has been thought necessary to fulfill 2 copyright’s very purpose, ‘[t]o promote the Progress of Science and 3 useful Arts . . . .’” Campbell, 510 U.S. at 574.

4

Under the fair‐use doctrine, a book reviewer may, for

5 example, quote from an original work in order to illustrate a point

6 and substantiate criticisms, see Folsom v. Marsh, 9 F. Cas. 342, 344

7 (C.C.D. Mass. 1841) (No. 4901), and a biographer may quote from

8 unpublished journals and letters for similar purposes, see Wright v.

9 Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991). An artist may employ

10 copyrighted photographs in a new work that uses a fundamentally

11 different artistic approach, aesthetic, and character from the original.

12 See Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). An internet

13 search engine can display low‐resolution versions of copyrighted

14 images in order to direct the user to the website where the original

15 could be found. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146,

16 1165 (9th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 818‐22

17 (9th Cir. 2002). A newspaper can publish a copyrighted photograph

18 (taken for a modeling portfolio) in order to inform and entertain the

19 newspaper’s readership about a news story. See Nunez v. Caribbean

20 Intʹl News Corp., 235 F.3d 18, 25 (1st Cir. 2000). A viewer can create a

21 recording of a broadcast television show in order to view it at a later

22 time. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,

23 447‐450 (1984). And a competitor may create copies of copyrighted

24 software for the purpose of analyzing that software and discovering

25 how it functions (a process called “reverse engineering”). See Sony

26 Comp. Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 599‐601

27 (9th Cir. 2000).

28

The doctrine is generally subject to an important proviso: A

29 fair use must not excessively damage the market for the original by

30 providing the public with a substitute for that original work. Thus, a

31 book review may fairly quote a copyrighted book “for the purposes

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1 of fair and reasonable criticism,” Folsom, 9 F. Cas. at 344, but the 2 review may not quote extensively from the “heart” of a forthcoming 3 memoir in a manner that usurps the right of first publication and 4 serves as a substitute for purchasing the memoir, Harper & Row, 5 Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

6

In 1976, as part of a wholesale revision of the Copyright Act,

7 Congress codified the judicially created fair‐use doctrine at 17 U.S.C.

8 § 107. See Copyright Act of 1976, Pub. L. No. 94‐553, § 107, 90 Stat.

9 2541, 2546 (1976) (codified as amended at 17 U.S.C. § 107). Section

10 107 requires a court to consider four nonexclusive factors which are

11 to be weighed together to assess whether a particular use is fair:

12

(1) the purpose and character of the use, including

13

whether such use is of a commercial nature or is for

14

nonprofit educational purposes;

15

(2) the nature of the copyrighted work;

16

(3) the amount and substantiality of the portion used in

17

relation to the copyrighted work as a whole; and

18

(4) the effect of the use upon the potential market for or

19

value of the copyrighted work.

20 17 U.S.C. § 107.

21

An important focus of the first factor is whether the use is

22 “transformative.” A use is transformative if it does something more

23 than repackage or republish the original copyrighted work. The

24 inquiry is whether the work “adds something new, with a further

25 purpose or different character, altering the first with new

26 expression, meaning or message . . . .” Campbell, 510 U.S. at 579

27 (citing Leval, 103 HARV. L. REV. at 1111). “[T]he more transformative

28 the new work, the less will be the significance of other factors . . .

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1 that may weigh against a finding of fair use.” Id. Contrary to what 2 the district court implied, a use does not become transformative by 3 making an “invaluable contribution to the progress of science and 4 cultivation of the arts.” HathiTrust, 902 F. Supp. 2d at 464. Added 5 value or utility is not the test: a transformative work is one that 6 serves a new and different function from the original work and is 7 not a substitute for it.

8

The second factor considers whether the copyrighted work is

9 “of the creative or instructive type that the copyright laws value and

10 seek to foster.” Leval, 103 HARV. L. REV. at 1117; see also Folsom, 9 F.

11 Cas. at 348 (“[W]e must often . . . look to the nature and objects of

12 the selections made . . . .”). For example, the law of fair use

13 “recognizes a greater need to disseminate factual works than works

14 of fiction or fantasy.” Harper & Row, 471 U.S. at 563.

15

The third factor asks whether the secondary use employs

16 more of the copyrighted work than is necessary, and whether the

17 copying was excessive in relation to any valid purposes asserted

18 under the first factor. Campbell, 510 U.S. at 586‐87. In weighing this

19 factor, we assess the quantity and value of the materials used and

20 whether the amount copied is reasonable in relation to the

21 purported justifications for the use under the first factor. Leval, 103

22 HARV. L. REV. at 1123.

23

Finally, the fourth factor requires us to assess the impact of the

24 use on the traditional market for the copyrighted work. This is the

25 “single most important element of fair use.” Harper & Row, 471 U.S.

26 at 566. To defeat a claim of fair use, the copyright holder must point

27 to market harm that results because the secondary use serves as a

28 substitute for the original work. See Campbell, 510 U.S. at 591

29 (“cognizable market harm” is limited to “market substitution”); see

30 also NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481‐82 (2d Cir. 2004).

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1

B.

2

As discussed above, the Libraries permit three uses of the

3 digital copies deposited in the HDL. We now consider whether these

4 uses are “fair” within the meaning of our copyright law.

5

1. Full‐Text Search

6

It is not disputed that, in order to perform a full‐text search of

7 books, the Libraries must first create digital copies of the entire

8 books. Importantly, as we have seen, the HDL does not allow users

9 to view any portion of the books they are searching. Consequently,

10 in providing this service, the HDL does not add into circulation any

11 new, human‐readable copies of any books. Instead, the HDL simply

12 permits users to “word search”—that is, to locate where specific

13 words or phrases appear in the digitized books. Applying the

14 relevant factors, we conclude that this use is a fair use.

15

i.

16

Turning to the first factor, we conclude that the creation of a

17 full‐text searchable database is a quintessentially transformative use.

18 As the example on page 7, supra, demonstrates, the result of a word

19 search is different in purpose, character, expression, meaning, and

20 message from the page (and the book) from which it is drawn.

21 Indeed, we can discern little or no resemblance between the original

22 text and the results of the HDL full‐text search.

23

There is no evidence that the Authors write with the purpose

24 of enabling text searches of their books. Consequently, the full‐text

25 search function does not “supersede[] the objects [or purposes] of

26 the original creation,” Campbell, 510 U.S. at 579 (internal quotation

27 marks omitted). The HDL does not “merely repackage[] or

28 republish[] the original[s],” Leval, 103 HARV. L. REV. at 1111, or

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1 merely recast “an original work into a new mode of presentation,” 2 Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 143 (2d 3 Cir. 1998). Instead, by enabling full‐text search, the HDL adds to the 4 original something new with a different purpose and a different 5 character.

6

Full‐text search adds a great deal more to the copyrighted

7 works at issue than did the transformative uses we approved in

8 several other cases. For example, in Cariou v. Prince, we found that

9 certain photograph collages were transformative, even though the

10 collages were cast in the same medium as the copyrighted

11 photographs. 714 F.3d at 706. Similarly, in Bill Graham Archives v.

12 Dorling Kindersley Ltd., we held that it was a transformative use to

13 include in a biography copyrighted concert photos, even though the

14 photos were unaltered (except for being reduced in size). 448 F.3d

15 605, 609‐11 (2d Cir. 2006); see also Blanch v. Koons, 467 F.3d 244, 252‐

16 53 (2d Cir. 2006) (transformative use of copyrighted photographs in

17 collage painting); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109,

18 114 (2d Cir. 1998) (transformative use of copyrighted photograph in

19 advertisement).

20

Cases from other Circuits reinforce this conclusion. In Perfect

21 10, Inc., the Ninth Circuit held that the use of copyrighted thumbnail

22 images in internet search results was transformative because the

23 thumbnail copies served a different function from the original

24 copyrighted images. 508 F.3d at 1165; accord Arriba Soft Corp., 336

25 F.3d at 819. And in A.V. ex rel. Vanderhye v. iParadigms, LLC, a

26 company created electronic copies of unaltered student papers for

27 use in connection with a computer program that detects plagiarism.

28 Even though the electronic copies made no “substantive alteration

29 to” the copyrighted student essays, the Fourth Circuit held that

30 plagiarism detection constituted a transformative use of the

31 copyrighted works. 562 F.3d 630, 639‐40.

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1

ii.

2

The second fair‐use factor—the nature of the copyrighted

3 work—is not dispositive. The HDL permits the full‐text search of

4 every type of work imaginable. Consequently, there is no dispute

5 that the works at issue are of the type that the copyright laws value

6 and seek to protect. However, “this factor ‘may be of limited

7 usefulness where,’ as here, ‘the creative work . . . is being used for a

8 transformative purpose.” Cariou, 714 F.3d at 710 (quoting Bill

9 Graham Archives, 448 F.3d at 612). Accordingly, our fair‐use analysis

10 hinges on the other three factors.

11

iii.

12

The third factor asks whether the copying used more of the

13 copyrighted work than necessary and whether the copying was

14 excessive. As we have noted, “[t]here are no absolute rules as to how

15 much of a copyrighted work may be copied and still be considered a

16 fair use.” Maxtone‐Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir.

17 1986). “[T]he extent of permissible copying varies with the purpose

18 and character of the use.” Campbell, 510 U.S. at 586‐87. The crux of

19 the inquiry is whether “no more was taken than necessary.” Id. at

20 589. For some purposes, it may be necessary to copy the entire

21 copyrighted work, in which case Factor Three does not weigh

22 against a finding of fair use. See Bill Graham Archives, 448 F.3d at 613

23 (entire image copied); Arriba Soft, 336 F.3d at 821 (“If Arriba only

24 copied part of the image, it would be more difficult to identify it,

25 thereby reducing the usefulness of the visual search engine.”).

26

In order to enable the full‐text search function, the Libraries,

27 as we have seen, created digital copies of all the books in their

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1 collections.5 Because it was reasonably necessary for the HDL to 2 make use of the entirety of the works in order to enable the full‐text 3 search function, we do not believe the copying was excessive.

4

The Authors also contend that the copying is excessive

5 because the HDL creates and maintains copies of the works at four

6 different locations Appellants’ Br. 27‐28. But the record

7 demonstrates that these copies are also reasonably necessary in

8 order to facilitate the HDL’s legitimate uses. In particular, the HDL’s

9 services are offered to patrons through two servers, one at the

10 University of Michigan (the primary server) and an identical one at

11 the University of Indiana (the “mirror” server). Both servers contain

12 copies of the digital works at issue. According to the HDL executive

13 director, the “existence of a[n] [identical] mirror site allows for

14 balancing the load of user web traffic to avoid overburdening a

15 single site, and each site acts as a back‐up of the HDL collection in

16 the event that one site were to cease operation (for example, due to

17 failure caused by a disaster, or even as a result of routine

18 maintenance).” J.A. 682‐83 ¶ 88‐89 (Wilkin Decl.). To further guard

19 against the risk of data loss, the HDL stores copies of the works on

20 two encrypted backup tapes, which are disconnected from the

21 internet and are placed in separate secure locations on the

22 University of Michigan campus. Id. at 683 ¶ 90. The HDL creates

23 these backup tapes so that the data could be restored in “the event of

24 a disaster causing large‐scale data loss” to the primary and mirror

25 servers. Id.

5 The HDL also creates digital copies of the images of each page of the books. As the Libraries acknowledge, the HDL does not need to retain these copies to enable the full‐ text search use. We discuss the fair‐use justification for these copies in the context of the disability‐access use, see infra pp. 29‐30.

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No. 12‐4547‐cv

1

We have no reason to think that these copies are excessive or

2 unreasonable in relation to the purposes identified by the Libraries

3 and permitted by the law of copyright. In sum, even viewing the

4 evidence in the light most favorable to the Authors, the record

5 demonstrates that these copies are reasonably necessary to facilitate

6 the services HDL provides to the public and to mitigate the risk of

7 disaster or data loss. Accordingly, we conclude that this factor

8 favors the Libraries.

9

iv.

10

The fourth factor requires us to consider “the effect of the use

11 upon the potential market for or value of the copyrighted work,” 17

12 U.S.C. § 107(4), and, in particular, whether the secondary use

13 “usurps the market of the original work,” NXIVM Corp., 364 F.3d at

14 482.

15

The Libraries contend that the full‐text‐search use poses no

16 harm to any existing or potential traditional market and point to the

17 fact that, in discovery, the Authors admitted that they were unable

18 to identify “any specific, quantifiable past harm, or any documents

19 relating to any such past harm,” resulting from any of the Libraries’

20 uses of their works (including full‐text search). Defs.‐Appellees’

21 Br. 38 (citing Pls.’ Resps. to Interrogs.). The district court agreed with

22 this contention, as do we.

23

At the outset, it is important to recall that the Factor Four

24 analysis is concerned with only one type of economic injury to a

25 copyright holder: the harm that results because the secondary use

26 serves as a substitute for the original work. See Campbell, 510 U.S. at

27 591 (“cognizable market harm” is limited to “market substitution”).

28 In other words, under Factor Four, any economic “harm” caused by

29 transformative uses does not count because such uses, by definition,

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23

No. 12‐4547‐cv

1 do not serve as substitutes for the original work. See Bill Graham 2 Archives, 448 F.3d at 614.

3

To illustrate why this is so, consider how copyright law treats

4 book reviews. Book reviews often contain quotations of copyrighted

5 material to illustrate the reviewer’s points and substantiate his

6 criticisms; this is a paradigmatic fair use. And a negative book

7 review can cause a degree of economic injury to the author by

8 dissuading readers from purchasing copies of her book, even when

9 the review does not serve as a substitute for the original. But,

10 obviously, in that case, the author has no cause for complaint under

11 Factor Four: The only market harms that count are the ones that are

12 caused because the secondary use serves as a substitute for the

13 original, not when the secondary use is transformative (as in

14 quotations in a book review). See Campbell, 510 U.S. at 591‐92

15 (“[W]hen a lethal parody, like a scathing theater review, kills

16 demand for the original, it does not produce a harm cognizable

17 under the Copyright Act.”).

18

The Authors assert two reasons why the full‐text‐search

19 function harms their traditional markets. The first is a “lost sale”

20 theory which posits that a market for licensing books for digital

21 search could possibly develop in the future, and the HDL impairs

22 the emergence of such a market because it allows patrons to search

23 books without any need for a license. Thus, according to the

24 Authors, every copy employed by the HDL in generating full‐text

25 searches represents a lost opportunity to license the book for search.

26 Appellants’ Br. 43.

27

This theory of market harm does not work under Factor Four,

28 because the full‐text search function does not serve as a substitute

29 for the books that are being searched. See Campbell, 510 U.S. at 591‐

30 92; Bill Graham Archives, 448 F.3d at 614. Thus, it is irrelevant that the

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24

No. 12‐4547‐cv

1 Libraries might be willing to purchase licenses in order to engage in 2 this transformative use (if the use were deemed unfair). Lost 3 licensing revenue counts under Factor Four only when the use 4 serves as a substitute for the original and the full‐text‐search use 5 does not.

6

Next, the Authors assert that the HDL creates the risk of a

7 security breach which might impose irreparable damage on the

8 Authors and their works. In particular, the Authors speculate that, if

9 hackers were able to obtain unauthorized access to the books stored

10 at the HDL, the full text of these tens of millions of books might be

11 distributed worldwide without restriction, “decimat[ing]” the

12 traditional market for those works. Appellants’ Br. 40.

13

The record before us documents the extensive security

14 measures the Libraries have undertaken to safeguard against the

15 risk of a data breach. Some of those measures were described by the

16 HDL executive director as follows:

17

First, [HDL] maintains . . . rigorous physical

18

security controls. HDL servers, storage, and networking

19

equipment at Michigan and Indiana University are

20

mounted in locked racks, and only six individuals at

21

Michigan and three at Indiana University have keys.

22

The data centers housing HDL servers, storage, and

23

networking equipment at each site location are

24

monitored by video surveillance, and entry requires use

25

of both a keycard and a biometric sensor.

26

Second, network access to the HDL corpus is

27

highly restricted, even for the staff of the data centers

28

housing HDL equipment at Michigan and Indiana

29

University. For example, two levels of network firewalls

30

are in place at each site, and Indiana University data

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No. 12‐4547‐cv

1

center staff do not have network access to the HDL

2

corpus, only access to the physical equipment. For the

3

backup tapes, network access is limited to the

4

administrators of the backup system, and these

5

individuals are not provided the encryption key that

6

would be required to access the encrypted files on the

7

backup tapes.

8

Web access to the HDL corpus is also highly

9

restricted. Access by users of the HDL service is

10

governed by primarily by [sic] the HDL rights database,

11

which classifies each work by presumed copyright

12

status, and also by a user’s authentication to the system

13

(e.g., as an individual certified to have a print disability

14

by Michigan’s Office of Services for Students with

15

Disabilities).

16

. . .

17

Even where we do permit a work to be read

18

online, such as a work in the public domain, we make

19

efforts to ensure that inappropriate levels of access do

20

not take place. For example, a mass download

21

prevention system called “choke” is used to measure

22

the rate of activity (such as the rate a user is reading

23

pages) by each individual user. If a user’s rate of

24

activity exceeds certain thresholds, the system assumes

25

that the user is mechanized (e.g., a web robot) and

26

blocks that user’s access for a set period of time.

27 J.A. 683‐85 ¶¶ 94‐96, 98 (Wilkins Decl.).

28

This showing of the security measures taken by the Libraries

29 is essentially unrebutted. Consequently, we see no basis in the

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26

No. 12‐4547‐cv

1 record on which to conclude that a security breach is likely to occur, 2 much less one that would result in the public release of the specific 3 copyrighted works belonging to any of the plaintiffs in this case. Cf. 4 Clapper v. Amnesty Int’l USA, ‐‐‐ U.S. ‐‐‐, ‐‐‐, 133 S. Ct. 1138, 1143, 5 1149 (2013) (risk of future harm must be “certainly impending,” 6 rather than merely “conjectural” or “hypothetical,” to constitute a 7 cognizable injury‐in‐fact); Sony Corp., 464 U.S. at 453‐54 (concluding 8 that time‐shifting using a Betamax is fair use because the copyright 9 owners’ “prediction that live television or movie audiences will 10 decrease” was merely “speculative”). Factor Four thus favors a 11 finding of fair use.

12

Without foreclosing a future claim based on circumstances not

13 now predictable, and based on a different record, we hold that the

14 balance of relevant factors in this case favors the Libraries. In sum,

15 we conclude that the doctrine of fair use allows the Libraries to

16 digitize copyrighted works for the purpose of permitting full‐text

17 searches.

18

2. Access to the Print‐Disabled

19

The HDL also provides print‐disabled patrons with versions

20 of all of the works contained in its digital archive in formats

21 accessible to them. In order to obtain access to the works, a patron

22 must submit documentation from a qualified expert verifying that

23 the disability prevents him or her from reading printed materials,

24 and the patron must be affiliated with an HDL member that has

25 opted‐into the program. Currently, the University of Michigan is the

26 only HDL member institution that has opted‐in. We conclude that

27 this use is also protected by the doctrine of fair use.

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27

No. 12‐4547‐cv

1

i.

2

In applying the Factor One analysis, the district court

3 concluded that “[t]he use of digital copies to facilitate access for

4 print‐disabled persons is [a] transformative” use. HathiTrust, 902 F.

5 Supp. 2d at 461. This is a misapprehension; providing expanded

6 access to the print disabled is not “transformative.”

7

As discussed above, a transformative use adds something new

8 to the copyrighted work and does not merely supersede the

9 purposes of the original creation. See Campbell, 510 U.S. at 579. The

10 Authors state that they “write books to be read (or listened to).”

11 Appellants’ Br. 34‐35. By making copyrighted works available in

12 formats accessible to the disabled, the HDL enables a larger

13 audience to read those works, but the underlying purpose of the

14 HDL’s use is the same as the author’s original purpose.

15

Indeed, when the HDL recasts copyrighted works into new

16 formats to be read by the disabled, it appears, at first glance, to be

17 creating derivative works over which the author ordinarily

18 maintains control. See 17 U.S.C. § 106(2). As previously noted,

19 paradigmatic examples of derivative works include translations of

20 the original into a different language, or adaptations of the original

21 into different forms or media. See id. § 101 (defining “derivative

22 work”). The Authors contend that by converting their works into a

23 different, accessible format, the HDL is simply creating a derivative

24 work.

25

It is true that, oftentimes, the print‐disabled audience has no

26 means of obtaining access to the copyrighted works included in the

27 HDL. But, similarly, the non‐English‐speaking audience cannot gain

28 access to untranslated books written in English and an unauthorized

29 translation is not transformative simply because it enables a new

30 audience to read a work.

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No. 12‐4547‐cv

1

This observation does not end the analysis. “While a

2 transformative use generally is more likely to qualify as fair use,

3 ‘transformative use is not absolutely necessary for a finding of fair

4 use.’” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., ‐‐‐ F.3d ‐‐‐, ‐‐‐,

5 2014 WL 2219162, at *7 (2d Cir. 2014) (quoting Campbell, 510 U.S. at

6 579). We conclude that providing access to the print‐disabled is still

7 a valid purpose under Factor One even though it is not

8 transformative. We reach that conclusion for several reasons.

9

First, the Supreme Court has already said so. As Justice

10 Stevens wrote for the Court: “Making a copy of a copyrighted work

11 for the convenience of a blind person is expressly identified by the

12 House Committee Report as an example of fair use, with no

13 suggestion that anything more than a purpose to entertain or to

14 inform need motivate the copying.” Sony Corp. of Am., 464 U.S. at

15 455 n.40.

16

Our conclusion is reinforced by the legislative history on

17 which he relied. The House Committee Report that accompanied

18 codification of the fair use doctrine in the Copyright Act of 1976

19 expressly stated that making copies accessible “for the use of blind

20 persons” posed a “special instance illustrating the application of the

21 fair use doctrine . . . .” H.R. REP. NO. 94‐1476, at 73 (1976), reprinted in

22 1976 U.S.C.C.A.N. 5659, 5686. The Committee noted that “special

23 [blind‐accessible formats] . . . are not usually made by the publishers

24 for commercial distribution.” Id. In light of its understanding of the

25 market (or lack thereof) for books accessible to the blind, the

26 Committee explained that “the making of a single copy or

27 phonorecord by an individual as a free service for a blind persons

28 [sic] would properly be considered a fair use under section 107.” Id.

29 We believe this guidance supports a finding of fair use in the unique

30 circumstances presented by print‐disabled readers.

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No. 12‐4547‐cv

1

Since the passage of the 1976 Copyright Act, Congress has

2 reaffirmed its commitment to ameliorating the hardships faced by

3 the blind and the print disabled. In the Americans with Disabilities

4 Act, Congress declared that our “Nation’s proper goals regarding

5 individuals with disabilities are to assure equality of opportunity,

6 full participation, independent living, and economic self‐sufficiency

7 for such individuals.” 42 U.S.C. § 12101(7). Similarly, the Chafee

8 Amendment illustrates Congress’s intent that copyright law make

9 appropriate accommodations for the blind and print disabled. See 17

10 U.S.C. § 121.

11

ii.

12

Through the HDL, the disabled can obtain access to

13 copyrighted works of all kinds, and there is no dispute that those

14 works are of the sort that merit protection under the Copyright Act.

15 As a result, Factor Two weighs against fair use. This does not

16 preclude a finding of fair use, however, given our analysis of the

17 other factors. Cf. Davis v. Gap, Inc., 246 F.3d 152, 175 (2d Cir. 2001)

18 (“The second statutory factor, the nature of the copyrighted

19 work . . . , is rarely found to be determinative.”).

20

iii.

21

Regarding Factor Three, as previously noted, the HDL retains

22 copies as digital image files and as text‐only files, which are then

23 stored in four separate locations. The Authors contend that this

24 amount of copying is excessive because the Libraries have not

25 demonstrated their need to retain the digital image files in addition

26 to the text files.

27

We are unconvinced. The text files are required for text

28 searching and to create text–to‐speech capabilities for the blind and

29 disabled. But the image files will provide an additional and often

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30

No. 12‐4547‐cv

1 more useful method by which many disabled patrons, especially 2 students and scholars, can obtain access to these works. These image 3 files contain information, such as pictures, charts, diagrams, and the 4 layout of the text on the printed page that cannot be converted to 5 text or speech. None of this is captured by the HDL’s text‐only 6 copies. Many legally blind patrons are capable of viewing these 7 images if they are sufficiently magnified or if the color contrasts are 8 increased. And other disabled patrons, whose physical impairments 9 prevent them from turning pages or from holding books, may also 10 be able to use assistive devices to view all of the content contained in 11 the image files for a book. For those individuals, gaining access to 12 the HDL’s image files—in addition to the text‐only files—is 13 necessary to perceive the books fully. Consequently, it is reasonable 14 for the Libraries to retain both the text and image copies.6

15

iv.

16

The fourth factor also weighs in favor of a finding of fair use.

17 It is undisputed that the present‐day market for books accessible to

18 the handicapped is so insignificant that “it is common practice in the

19 publishing industry for authors to forgo royalties that are generated

20 through the sale of books manufactured in specialized formats for

21 the blind . . . .” Appellants’ Br. 34. “[T]he number of accessible books

22 currently available to the blind for borrowing is a mere few hundred

23 thousand titles, a minute percentage of the world’s books. In

24 contrast, the HDL contains more than ten million accessible

25 volumes.” J.A. 173 ¶ 10 (Maurer Decl.). When considering the 1976

26 Act, Congress was well aware of this problem. The House

6 The Authors also complain that the HDL creates and maintains four separate copies of the copyrighted works at issue. Appellants’ Br. 27‐28. For reasons discussed in the full‐ text search section, this does not preclude a finding of fair use. See supra pp. 20‐22.

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No. 12‐4547‐cv

1 Committee Report observed that publishers did not “usually 2 ma[ke]” their books available in specialized formats for the blind. 3 H.R. REP. NO. 94‐1476, at 73, 1976 U.S.C.C.A.N. at 5686. That 4 observation remains true today.

5

Weighing the factors together, we conclude that the doctrine

6 of fair use allows the Libraries to provide full digital access to

7 copyrighted works to their print‐disabled patrons.7

8

3. Preservation

9

By storing digital copies of the books, the HDL preserves

10 them for generations to come, and ensures that they will still exist

11 when their copyright terms lapse. Under certain circumstances, the

12 HDL also proposes to make one additional use of the digitized

13 works while they remain under copyright: The HDL will permit

14 member libraries to create a replacement copy of a book, to be read

15 and consumed by patrons, if (1) the member already owned an

16 original copy, (2) the member’s original copy is lost, destroyed, or

17 stolen, and (3) a replacement copy is unobtainable at a fair price. The

18 Authors claim that this use infringes their copyrights.

19

Even though the parties assume that this issue is appropriate

20 for our determination, we are not convinced that this is so. The

21 record before the district court does not reflect whether the plaintiffs

22 own copyrights in any works that would be effectively irreplaceable

23 at a fair price by the Libraries and, thus, would be potentially subject

24 to being copied by the Libraries in case of the loss or destruction of

25 an original. The Authors are not entitled to make this argument on

26 behalf of others, because § 501 of “the Copyright Act does not

27 permit copyright holders to choose third parties to bring suits on

7 In light of our holding, we need not consider whether the disability‐access use is protected under the Chafee Amendment, 17 U.S.C. § 121.

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No. 12‐4547‐cv

1 their behalf.” ABKCO Music, 944 F.2d at 980; see also our discussion 2 of standing, supra pp. 12‐13.

3

Because the record before us does not reflect the existence of a

4 non‐speculative risk that the HDL might create replacement copies

5 of the plaintiffs’ copyrighted work, we do not believe plaintiffs have

6 standing to bring this claim, and this concern does not present a live

7 controversy for adjudication. See Clapper, ‐‐‐ U.S. at ‐‐‐, 133 S. Ct. at

8 1147; Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep’t of Health &

9 Human Servs., 607 F.3d 951, 955 (2d Cir. 2010) (noting that we have

10 an “independent obligation” to evaluate subject matter jurisdiction,

11 including whether there is “a live controversy”). Accordingly, we

12 vacate the district court’s judgment insofar as it adjudicated this

13 issue without first considering whether plaintiffs have standing to

14 challenge the preservation use of the HDL, and we remand for the

15 district court to so determine.

16

II. Ripeness of Claims Relating to the Orphan Works Project

17

The district court also held that the infringement claims

18 asserted in connection with the OWP were not ripe for adjudication

19 because the project has been abandoned and the record contained no

20 information about whether the program will be revived and, if so,

21 what it would look like or whom it would affect. HathiTrust, 902 F.

22 Supp. 2d at 455‐56. We agree.

23

In considering whether a claim is ripe, we consider (1) “the

24 fitness of the issues for judicial decision” and (2) “the hardship to

25 the parties of withholding court consideration.” Murphy v. New

26 Milford Zoning Comm’n, 402 F.3d 342, 347 (2d Cir. 2005) (quoting

27 Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

28

The fitness analysis is concerned with whether the issues

29 sought to be adjudicated are contingent on unknowable future

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33

No. 12‐4547‐cv

1 events. N.Y. Civil Liberties Union v. Grandeau, 528 F. 3d 122, 132 (2d 2 Cir. 2008). The Authors assert that their OWP claim is fit for judicial 3 decision because it “will not change based upon the particular 4 procedures that [the University of Michigan] ultimately employs to 5 identify orphan works.” Appellants’ Br. 13. According to the 6 Authors, the legality of the OWP does not depend upon the specific 7 means the Libraries ultimately employ to identify orphan candidates 8 or the time the Libraries wait before making works available. Rather, 9 the Authors believe that any iteration of the OWP that results in the 10 publication of complete copyrighted works is an infringement of 11 copyright.

12

We are not persuaded that these concerns create a ripe

13 dispute. Even assuming, arguendo, that “[a]ny iteration of the OWP

14 under which copyrighted works are made available for public view

15 and download” would infringe someone’s copyright, id., it does not

16 follow that the OWP will inevitably infringe the copyrights held by

17 the remaining plaintiffs in this case.8 It is conceivable that, should

18 the University of Michigan ever revive the OWP, the procedures it

19 ultimately implements to identify orphan works would successfully

20 identify and exclude works to which a plaintiff in this suit holds a

21 copyright. Consequently, we cannot say that any of the plaintiffs

22 face a “certainly impending” harm under our ripeness analysis,

23 Clapper, ‐‐‐ U.S. at ‐‐‐, 133 S. Ct. at 1147; see also Grandeau, 528 F.3d at

24 130 n.8.

25

Nor do we perceive any hardship if decision is withheld. See

26 Grandeau, 528 F.3d at 134. The Authors argue that they would suffer

27 hardship because “there is nothing to stop the Libraries from

8 We note that, in addition to our conclusion about ripeness, the same reasoning leads us to conclude that the remaining plaintiffs lack standing to bring this claim, see our discussion of standing, supra pp. 12‐13.

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34

No. 12‐4547‐cv

1 reinstituting the OWP and then, if owners of the listed works come 2 forward, suspending it again.” Appellants’ Br. 16.

3

We disagree. As indicated above, it is far from clear that the

4 University of Michigan or HathiTrust will reinstitute the OWP in a

5 manner that would infringe the copyrights of any proper plaintiffs.

6 If that occurs, the Authors may always return to court. Suffice it to

7 say that “[t]he mere possibility of future injury, unless it is the cause

8 of some present detriment, does not constitute hardship.” Grandeau,

9 528 F.3d at 134 (internal quotation marks omitted). For these

10 reasons, we conclude that the OWP claims are not ripe for

11 adjudication.

12

CONCLUSION

13

The judgment of the district court is AFFIRMED, in part,

14 insofar as the district court concluded that certain plaintiffs‐

15 appellants lack associational standing; that the doctrine of “fair use”

16 allows defendants‐appellees to create a full‐text searchable database

17 of copyrighted works and to provide those works in formats

18 accessible to those with disabilities; and that claims predicated upon

19 the Orphan Works Project are not ripe for adjudication. We

20 VACATE the judgment, in part, insofar as it rests on the district

21 court’s holding related to the claim of infringement predicated upon

22 defendants‐appellees’ preservation of copyrighted works, and we

23 REMAND for further proceedings consistent with this opinion.

 
 Case 1:11-cv-06351-NRB Document 182 Filed 01/06/15 Page 1 of 3

JAN 06 2015

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

UNITED STATES COURT JUDGE

. THE AUTHORS GUILD, INC .._.. ' .._..,

USDC SU~Y

Plaintiffs,

DOCUMENT

Case 'o. 11 Civ. 6351 (NRB)

v.
HATHITRUST, ET AL., Defendants.

ELECTRONICALL Fl LED

DOC#:

l / S DATE

~ --~------~~--~~

FILED:

t

TIPULATION

WHEREAS, on June !0, 2014, the Second Circuit issued a decision in the abovecaptioned action (this "Action"), affirming in part, vacating in part, and remanding in part the October 10, 2012 judgment of the late Honorable Judge Harold Baer;
WHEREAS, the issue remanded to this Court is whether certain plaintiffs (the "Remaining Plaintiffs") have standing to challenge the Defendants making replacement copies of books that have been lost, destroyed, or stolen (the "Remanded Claim"), Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 103-104 (2d Cir. 2014);
WHEREAS, the parties wish to resolve this Action while reserving their respective positions on the Remanded Claim and without waiving their respective rights and defenses, including the Remaining Plaintiffs' rights under Section I 06 of the Copyright Act and Defendants' rights to make fair uses and other non-infringing uses, including those authorized under Section 108 of the Copyright Act;
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by the parties, as follows:
1. Defendants hereby represent that the libraries at the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University (the "Libraries") have, to the best of Defendants' knowledge, only

Case 1:11-cv-06351-NRB Document 182 Filed 01/06/15 Page 2 of 3

made a "replacement of a copy" (as that term is used in section 108(c) of the Copyright

Act) from the HathiTrust Digital Library where: (i) the original copy that was being

replaced was damaged, deteriorating, lost, or stolen; and (ii) it was determined, after a

reasonable effort, that an unused replacement could not be obtained at a fair price;

2.

Defendants hereby agree for a period of five (5) years from the date of this

Stipulation to provide written notice to the Remaining Plaintiffs as soon as reasonable in

the event the Libraries dispense with either of the practices, (i) or (ii), described in the

previous clause (1 ), with such notice being sent by overnight delivery service to the

undersigned counsel for the Remaining Plaintiffs and to the Authors Guild, which,

although not a Remaining Plaintiff in this Action, will accept notice via its Executive

Director, The Authors Guild, 31 East 32nd Street, 7th Floor, New York, NY 10016; and

3. Pursuant to Rule 41(a) ofthe Federal Rules of Civil Procedure, the

Remanded Claim is hereby dismissed with prejudice, with each party to bear its own

attorneys' fees and costs.

Dated: New York, New York December 23, 2014
FRANKFURT KURNIT KLEIN & SELZ, P.C.
By: ~ ~ >. "'"' {' L ~·
Edward H. Rosenthal (ER-8022) 488 Madison Avenue New York, NY 10022 (212) 980-0120
Attorneys for Remaining Plaintiffs
SO ORDERED:

KILPATRICK TOWNSEND &
STOCKT~LP

By:

----

Jo~JP-9071)

1114 Avenue ofthe Americas

New York, New York 10036

(212) 775-8700

Attorneys for Defendants

2

Case 1:11-cv-06351-NRB Document 182 Filed 01/06/15 Page 3 of 3

Dated: New York, New York December 30,2014

THE LAW OFFICE OF

ROBERT J. BERNSTEIN

v. /) \ ~\l\F d 1'

·~ (\ ~·,

By: __{j\_L ,.. t-Ji • • )m,•

Robert l Bcn~stcin (IUl 4230)

43 West 43rd Street, Suite 39 New York, NY 10036-7474 (203) 253-0353

Daniel F. Goldstein (admitted pro hac vice) BROWN GOLDSTEIN & LEVY, LLP 120 East Baltimore Street Baltimore, MD 21202 (410) 962-1030

PETERJASZI (admitted pro hac vice) 5401 Surrey Street Chevy Chase, MD 20815 (301) 656-1753

Attorneys for Defendants-Intervenors

3

 
 Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 1 of 66
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−06351−NRB

CLOSED,ECF

The Authors Guild, Inc. et al v. Hathitrust et al Assigned to: Judge Naomi Reice Buchwald Cause: 17:101 Copyright Infringement Plaintiff The Authors Guild, Inc.
Plaintiff The Australian Society Of Authors Limited
Plaintiff Union Des Ecrivaines Et Des Ecrivains Quebecois
Plaintiff Pat Cummins TERMINATED: 10/06/2011

Date Filed: 09/12/2011 Date Terminated: 10/12/2012 Jury Demand: None Nature of Suit: 820 Copyright Jurisdiction: Federal Question
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 ATTORNEY TO BE NOTICED
represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 2 of 66

Plaintiff Angelo Loukakis

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

W. Andrew Pequignot Kilpatrick Townsend &Stockton LLP(GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404)−815−6500 Fax: (404)−815−6555 Email: apequignot@kilpatricktownsend.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Roxana Robinson

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andre Roy

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Shapiro

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Daniele Simpson

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 3 of 66

T.J. Stiles

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Fay Weldon

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff The Authors League Fund, Inc

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Authors' Licensing and Collecting Society

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sveriges Forfattarforbund

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Norsk Faglitteraer Forfatter0OG Oversetterforening

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff the Writers' Union of Canada

represented by

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 4 of 66

Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pat Cummings

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Erik Grundstrom

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Helge Ronning

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jack R. Salamanca

represented by Edward Henry Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy Seth Goldman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Hathitrust

represented by Alex Seth Fonoroff , S Kilpatrick Stockton, LLP (GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404)−815−6436 Fax: (404)−541−3202 Email: afonoroff@kilpatrickstockton.com PRO HAC VICE

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 5 of 66

ATTORNEY TO BE NOTICED

Allison Scott Roach Kilpatrick Townsend &Stockton LLP(GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404) 815−6500 Fax: (404) 815−6555 Email: aroach@kilpatricktownsend.com PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck Kilpatrick 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

Joseph E. Petersen Kilpatrick Townsend &Stockton LLP 1114 Avenue of the Americas 21st Floor New York, NY 10036 (212)775−8700 Fax: (212)775−8800 Email: jpetersen@kilpatricktownsend.com ATTORNEY TO BE NOTICED

Robert Nathan Potter Kilpatrick Townsend & Stockton LLP 31 West 52nd Street 14th Floor New York, NY 10019 (212)−775−8751 Fax: (212)−775−8828 Email: rpotter@kilpatricktownsend.com ATTORNEY TO BE NOTICED

Ronald Lee Raider Kilpatrick Stockton, LLP (GA) 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404)−532−6909 Fax: (404)−815−6555 Email: rraider@kilpatrickstockton.com PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
The Regents Of The University Of Michigan TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 6 of 66

Defendant The Regents of the University of California TERMINATED: 12/21/2011
Defendant The Board Of Regents Of The University Of Wisconsin System TERMINATED: 12/21/2011

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 7 of 66

ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
The Trustees Of Indiana University TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Cornell University

represented by Nelson E. Roth Cornell University, Office of University Counsel 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

Alex Seth Fonoroff , S

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 8 of 66

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Julia Donovan Darlow TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Laurence B. Deitch TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 9 of 66

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Denise Ilitch TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Olivia P. Maynard TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 10 of 66

Defendant Andrea Fischer Newman TERMINATED: 12/21/2011
Defendant Andrew C. Richner TERMINATED: 12/21/2011

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 11 of 66

ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
S. Martin Taylor in his official capacity as the Regents of the University of Michigan TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Katherine E. White in her official capacity as the Regents of the University of Michigan TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address)

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 12 of 66

ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Richard C. Blum TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
David Crane TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address)

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 13 of 66

PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
William De La Pena TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Russell Gould TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 14 of 66

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Eddie Island TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Odessa Johnson TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 15 of 66

Defendant George Kieffer TERMINATED: 12/21/2011
Defendant Sherry L. Lansing TERMINATED: 12/21/2011
Defendant

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 16 of 66

Monica Lozano TERMINATED: 12/21/2011

Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Hadi Makarechian TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
George M. Marcus TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 17 of 66

Defendant Alfredo Mireles, Jr. TERMINATED: 12/21/2011
Defendant Norman J. Pattiz TERMINATED: 12/21/2011

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 18 of 66

ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Bonnie Reiss TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Fred Ruiz TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address)

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 19 of 66

PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Leslie Tang Schilling TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Bruce D. Varner TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 20 of 66

(See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Paul Wachter in his official capacity as the Regents of the University of California TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Charlene Zettel in his official capacity as the Regents of the University of California TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 21 of 66

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Jeffrey Bartell TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Mark J. Bradley TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 22 of 66

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Judith V. Crain TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
John Drew TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 23 of 66

Defendant Tony Evers TERMINATED: 12/21/2011
Defendant Michael J Falbo TERMINATED: 12/21/2011
Defendant

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 24 of 66

Edmund Manydeeds TERMINATED: 12/21/2011

Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Katherine Pointer TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Charles Pruitt TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 25 of 66

Defendant Troy Sherven TERMINATED: 12/21/2011
Defendant Brent Smith TERMINATED: 12/21/2011

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 26 of 66

ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Michael J. Spector TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
S. Mark Tyler TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address)

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 27 of 66

PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Jose F. Vazquez in his official capacity as the Regents of the University of Wisconsin System TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
David G. Walsh in his official capacity as the Regents of the University of Wisconsin System TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 28 of 66

(See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
William R. Cast TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Patrick A. Shoulders TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 29 of 66

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
MaryEllen Kiley Bishop TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Bruce Cole TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 30 of 66

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Philip N. Eskew, Jr. TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Cora J Griffin TERMINATED: 12/21/2011

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 31 of 66

Defendant Thomas E. Reilly, Jr. TERMINATED: 12/21/2011
Defendant Derica W. Rice in his official capacity as the Trustee of Indiana University TERMINATED: 12/21/2011
Defendant

represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED
Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 32 of 66

William H. Strong in his official capacity as the Trustee of Indiana University TERMINATED: 12/21/2011

Alex Seth Fonoroff , S (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Allison Scott Roach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph M. Beck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph E. Petersen (See above for address) ATTORNEY TO BE NOTICED

Ronald Lee Raider (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

W. Andrew Pequignot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Mary Sue Coleman President, University of Michigan

Defendant
Mark G. Yudof President, The University of California

Defendant
Kevin Reilly President, The University fo Wisconsin System

Defendant
Michael McRobbie President, Indiana University

Intervenor Defendant National Federation of the Blind

represented by Daniel Frank Goldstein Brown Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410)−385−0869 Email: dfg@browngold.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber Brown Goldstein &Levy, LLP 120 E. Baltimore St., Ste. 1700 Baltimore, MD 21202 (443)−257−5885

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 33 of 66

Fax: (410)−385−0869 Email: jweber@browngold.com ATTORNEY TO BE NOTICED

Laura G. Abelson Brown Goldstein &Levy, LLP 120 East Baltimore Street, Suite 1700 Baltimore, MD 21202 (410) 962−1030 Fax: (410) 385−0869 Email: labelson@browngold.com PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Jaszi Solo Practitioner 5402 Surrey Street Chevy Chase, MD 20815 (757) 276−1790 Fax: (301) 656−7483 Email: pjaszi@wcl.american.edu PRO HAC VICE ATTORNEY TO BE NOTICED

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 ATTORNEY TO BE NOTICED

Intervenor Defendant The National Federation of the Blind

represented by Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Georgina Kleege

represented by Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Blair Seidlitz

represented by

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 34 of 66

Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Courtney Wheeler

represented by Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address) ATTORNEY TO BE NOTICED

ADR Provider Blair Seidlitz

represented by Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Jaszi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Jay Bernstein (See above for address) ATTORNEY TO BE NOTICED

ADR Provider Courtney Wheeler

represented by Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address)

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 35 of 66

PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Jaszi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Jay Bernstein (See above for address) ATTORNEY TO BE NOTICED

ADR Provider Georgina Kleege

represented by Daniel Frank Goldstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Paulie Weber (See above for address) ATTORNEY TO BE NOTICED

Laura G. Abelson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Jaszi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Jay Bernstein (See above for address) ATTORNEY TO BE NOTICED

ADR Provider
DIGITAL HUMANITIES AND LAW SCHOLARS

represented by Charles Edward Colman Charles Colman Law, PLLC 1776 Broadway, 21st Floor New York, NY 10019 (917)−515−5875 Fax: (917)−534−6294 Email: cc@charlescolmanlaw.com ATTORNEY TO BE NOTICED

Amicus American Library Association

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 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Association of College and Research Libraries

represented by Jonathan Band (See above for address) PRO HAC VICE

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 36 of 66

ATTORNEY TO BE NOTICED

Amicus Association of Research Libraries

represented by Jonathan Band (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 09/12/2011
09/12/2011
09/12/2011 09/12/2011 09/12/2011
09/12/2011 09/16/2011 09/16/2011 09/16/2011 10/06/2011

# Docket Text
1 COMPLAINT against Cornell University, Hathitrust, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University. (Filing Fee $ 350.00, Receipt Number xxxx)Document filed by Union Des Ecrivaines Et Des Ecrivains Quebecois, James Shapiro, The Authors Guild, Inc., Angelo Loukakis, Roxana Robinson, Daniele Simpson, T.J. Stiles, The Australian Society Of Authors Limited, Andre Roy, Pat Cummins, Fay Weldon.(ama) (Entered: 09/13/2011)
SUMMONS ISSUED as to Cornell University, Hathitrust, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University. (ama) (Entered: 09/13/2011)
CASE REFERRED TO Judge Denny Chin as possibly related to 1:05−cv−8136. (ama) (Entered: 09/13/2011)
Case Designated ECF. (ama) (Entered: 09/13/2011)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Pat Cummins, Angelo Loukakis, Roxana Robinson, Andre Roy, James Shapiro, Daniele Simpson, T.J. Stiles, The Australian Society Of Authors Limited, The Authors Guild, Inc., Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon.(ama) (Entered: 09/13/2011)
Mailed notice to Register of Copyrights to report the filing of this action. (ama) (Entered: 09/13/2011)
CASE DECLINED AS NOT RELATED. Case referred as related to 05−cv−8136 and declined by Judge Denny Chin and returned to wheel for assignment. (sjo) (Entered: 09/16/2011)
3 NOTICE OF CASE ASSIGNMENT to Judge Harold Baer. Judge Unassigned is no longer assigned to the case. (sjo) (Entered: 09/16/2011)
Magistrate Judge James L. Cott is so designated. (sjo) (Entered: 09/16/2011)
4 FIRST AMENDED COMPLAINT amending 1 Complaint,, against Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.Document filed by Helge Ronning, Union Des Ecrivaines Et Des Ecrivains Quebecois, Jack R. Salamanca, Roxana Robinson, the Writers' Union of Canada, Pat Cummins, Fay Weldon, Sveriges Forfattarforbund, Norsk Faglitteraer Forfatter0OG Oversetterforening, Andre Roy, The Authors Guild, Inc., Pat

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 37 of 66

10/18/2011 10/18/2011 10/18/2011 10/18/2011

Cummings, Daniele Simpson, T.J. Stiles, James Shapiro, Authors' Licensing and Collecting Society, Danielle Simpson, Angelo Loukakis, The Authors League Fund, Inc, The Australian Society Of Authors Limited, Erik Grundstrom. Related document: 1 Complaint,, filed by Pat Cummins, Fay Weldon, Roxana Robinson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, The Australian Society Of Authors Limited, Angelo Loukakis, T.J. Stiles, The Authors Guild, Inc., Daniele Simpson, James Shapiro.(mro) (Entered: 10/12/2011)
5 MOTION for Alex S. Fonoroff to Appear Pro Hac Vice. Document filed by Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.(bcu) (pgu). (Entered: 10/19/2011)
6 MOTION for W. Andrew Pequignot to Appear Pro Hac Vice. Document filed by Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Angelo Loukakis, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.(bcu) (pgu). (Entered: 10/19/2011)
7 MOTION for Allison Scott Roach to Appear Pro Hac Vice. Document filed by Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.(bcu) (pgu). (Entered: 10/19/2011)
8 MOTION for Joseph M. Beck to Appear Pro Hac Vice. Document filed by Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 38 of 66

10/19/2011 10/20/2011 10/20/2011 10/20/2011 10/20/2011 10/20/2011 10/28/2011 10/31/2011 11/01/2011
11/01/2011

Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.(bcu) (pgu). (Entered: 10/19/2011)
NOTICE of Conference: Pretrial Conference set for 11/17/2011 at 12:00 PM, in Chambers, Room 2230, before Judge Harold Baer. (cd) (Entered: 10/20/2011)
9 ORDER FOR ADMISSION PRO HAC VICE granting 8 Motion for Joseph M. Beck to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 10/19/2011) (ft) (Entered: 10/20/2011)
10 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 5 Motion for Alex S. Fonoroff to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 10/19/2011) (ft) (Entered: 10/20/2011)
11 ORDER FOR ADMISSION PRO HAC VICE ON WRITTEN MOTION granting 6 Motion for W. Andrew Pequignot to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 10/19/2011) (ft) (Entered: 10/20/2011)
12 ORDER FOR ADMISSION PRO HAC VICE granting 7 Motion for Allison Scott Roach to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 10/20/2011) (ft) (Entered: 10/20/2011)
CASHIERS OFFICE REMARK on 8 Motion to Appear Pro Hac Vice,,,, 5 Motion to Appear Pro Hac Vice,,,, 6 Motion to Appear Pro Hac Vice,,,, 7 Motion to Appear Pro Hac Vice,,,, in the amount of $800.00, paid on 10/18/2011, Receipt Number 1019471,1019472,1019473,1019475. (jd) (Entered: 10/20/2011)
13 STIPULATION: that the time for Defendants to answer, move, or otherwise respond to the First Amended Complaint be and is hereby extended to and including December 2, 2011. (Signed by Judge Harold Baer on 10/28/2011) (pl) Modified on 10/28/2011 (pl). (Entered: 10/28/2011)
14 NOTICE OF APPEARANCE by Nelson E. Roth on behalf of Cornell University (Roth, Nelson) (Entered: 10/31/2011)
15 NOTICE OF APPEARANCE by Joseph E. Petersen on behalf of Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan (Petersen, Joseph) (Entered: 11/01/2011)
17 Letter addressed to Edward Rosenthal from Linda Eckhouse, Judicial Assistant to the Honorable Harold Baer, Jr. dated 11/1/2011 re: The Pre−Trial Conference (PTC) on the above case has been rescheduled. The new date and time is Friday, November 18, 2011, at 11:30 A.M. Please notify your adversary.(lmb) (Entered: 11/08/2011)

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 39 of 66

11/01/2011 11/07/2011
11/08/2011 11/14/2011 11/18/2011 11/21/2011 11/21/2011 11/21/2011
11/22/2011

Set/Reset Hearings: Pretrial Conference set for 11/18/2011 at 11:30 AM before Judge Harold Baer. (lmb) (Entered: 11/08/2011)
16 MOTION for Ronald L. Raider to Appear Pro Hac Vice. Document filed by Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.(wb) (pgu). (Entered: 11/08/2011)
CASHIERS OFFICE REMARK on 16 Motion to Appear Pro Hac Vice,,,, in the amount of $200.00, paid on 11/07/2011, Receipt Number 1021190. (jd) (Entered: 11/08/2011)
18 ORDER FOR ADMISSION PRO HAC VICE granting 16 Motion for Ronald L. Raider to Appear Pro Hac Vice. It is hereby Ordered that Ronald L. Raider is admitted pro hac vice to appear for all purposes as counsel for the defendants. ENDORSEMENT: Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 11/14/2011) (mro) Modified on 11/14/2011 (mro). (Entered: 11/14/2011)
Minute Entry for proceedings held before Judge Harold Baer: Initial Pretrial Conference held on 11/18/2011. (pl) (Entered: 11/22/2011)
20 PRETRIAL SCHEDULING ORDER: The parties do not consent to proceed before a United States Magistrate for all purposes. Case added to the November trailing Trial Calendar. Non jury 4 day trial. Amended Pleadings due by 1/1/2012. Joinder of Parties due by 1/1/2012. Motions due by 7/20/2012. Discovery due by 5/20/2012. (Signed by Judge Harold Baer on 11/19/2011) (cd) (Entered: 11/23/2011)
21 PRETRIAL SCHEDULING ORDER:The parties do not consent to proceed before a United States Magistrate for all purposes, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. This case is added to the Nov. Trailing Trial Calendar. Non−jury. Estimated number of trial days is 4. Amended Pleadings due by 1/1/2012. Joinder of Parties due by 1/1/2012. Motions due by 7/20/2012. Responses due by 7/20/2012. Replies due by 7/20/2012. Discovery due by 5/20/2012. (Signed by Judge Harold Baer on 11/19/2011) (lmb) (Entered: 11/23/2011)
22 SCHEDULING ORDER: This case is added to the Nov. Tralling trial calendar. Non jury. Estimated number of trial days is 4. no additional causes of action or defenses may be asserted after January 1, 2012. the parties consent to proceed before a United States magistrate for all purposes, pursuant to 28 U.S.C 636(c) and Fed. R.Civ. P. 73? should be asserted. A joint pretrial order may be requested when your trial date is set, and will typically need to be submitted to Chambers from 10 days to 2 weeks prior to trial. Sec my Individual Practices for details. the law Clerk assigned to this case is Jackie Joinder of Parties due by 1/1/2012. Motions due by 7/20/2012. Discovery due by 5/20/2012. (Signed by Judge Harold Baer on 11/19/2011) (js) (Entered: 11/29/2011)
19 STIPULATION AND ORDER: NOW THEREFORE. IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiffs and Defendants, that notwithstanding the numerical limitations of Federal Rule of Civil Procedure 33(a)(1) and the subject matter limitations of Rule 33.3(8) of the Local Rules for the United Stats District Courts of the Southern and Eastern Districts of New York, Plaintiffs (collectively) and Defendants (collectively) may serve such

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12/02/2011
12/09/2011
12/09/2011 12/11/2011 12/11/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011

interrogatories as the serving party deems appropriate, with neither Plaintiffs (collectively) nor Defendants (collectively) serving more than thirty (30) interrogatories on the other. (Signed by Judge Harold Baer on 11/22/2011) (djc) (Entered: 11/22/2011)
23 ANSWER to 4 Amended Complaint,,,,,,,. Document filed by Jeffrey Bartell, MaryEllen Kiley Bishop, Richard C. Blum, Mark J. Bradley, William R. Cast, Bruce Cole, Cornell University, Judith V. Crain, David Crane, Julia Donovan Darlow, William De La Pena, Laurence B. Deitch, John Drew, Philip N. Eskew, Jr, Tony Evers, Michael J Falbo, Russell Gould, Cora J Griffin, Hathitrust, Denise Ilitch, Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica Lozano, Hadi Makarechian, Edmund Manydeeds, George M. Marcus, Olivia P. Maynard, Alfredo Mireles, Jr, Andrea Fischer Newman, Norman J. Pattiz, Katherine Pointer, Charles Pruitt, Thomas E. Reilly, Jr, Bonnie Reiss, Derica W. Rice, Andrew C. Richner, Fred Ruiz, Leslie Tang Schilling, Troy Sherven, Patrick A. Shoulders, Brent Smith, Michael J. Spector, William H. Strong, S. Martin Taylor, The Board Of Regents Of The University Of Wisconsin System, The Regents Of The University Of Michigan, The Regents of the University of California, The Trustees Of Indiana University, S. Mark Tyler, Bruce D. Varner, Jose F. Vazquez, Paul Wachter, David G. Walsh, Katherine E. White, Charlene Zettel.(Petersen, Joseph) (Entered: 12/02/2011)
24 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Intervene As Defendants. Document filed by National Federation of the Blind, Blair Seidlitz, Courtney Wheeler, Georgina Kleege. (Attachments: # 1 Exhibit Exhibit A − Declaration of Dr. Marc Mauer, # 2 Exhibit Exhibit B − Declaration of Blair Seidlitz, # 3 Exhibit Exhibit C − Declaration of Courtney Wheeler, # 4 Exhibit Exhibit D − Declaration of Georgina Kleege, # 5 Exhibit Exhibit E − Declaration of Daniel F. Goldstein, # 6 Exhibit Exhibit F − Proposed Joint Answer and Defenses of Defendant Intervenors)(Bernstein, Robert) Modified on 12/23/2011 (kco). (Entered: 12/09/2011)
25 MEMORANDUM OF LAW in Support re: 24 MOTION to Intervene As Defendants. Filed By National Federation of the Blind, Blair Seidlitz, Courtney Wheeler and Georgina Kleege. Document filed by Georgina Kleege. (Bernstein, Robert) (Entered: 12/09/2011)
26 FILING ERROR − WRONG PDF ASSOCIATED WITH DOCKET ENTRY − DECLARATION of Daniel F. Goldstein in Support re: 24 MOTION to Intervene As Defendants. Document filed by National Federation of the Blind. (Attachments: # 1 Exhibit Exhibit E to Motion to Intervene as Defendants of National Federation of the Blind, Blair Seidlitz, Courtney Wheeler and Georgina Kleege)(Bernstein, Robert) Modified on 12/12/2011 (db). (Entered: 12/11/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − PDF ERROR. Note to Attorney Robert Jay Bernstein to RE−FILE Document 26 Declaration in Support of Motion. Re−File and Attach Declaration in Support of Motion PDF. (db) (Entered: 12/12/2011)
27 MOTION to Intervene As Defendants. Document filed by National Federation of the Blind. (Attachments: # 1 Exhibit Declaration of Dr. Marc Mauer, # 2 Exhibit Declaration of Blair Seidlitz, # 3 Exhibit Courtney Wheeler, # 4 Exhibit Declaration of Georgina Kleege, # 5 Exhibit Declaration of Daniel F. Goldstein, # 6 Exhibit Defendant Intervenors' Joint Answer and Defenses)(Bernstein, Robert) (Entered: 12/12/2011)
28 MOTION for Peter Jaszi to Appear Pro Hac Vice. Document filed by Georgina Kleege, National Federation of the Blind, Blair Seidlitz, Courtney Wheeler.(bwa) (bwa). (Entered: 12/15/2011)
29 MOTION for Laura G. Abelson to Appear Pro Hac Vice. Document filed by Georgina Kleege, National Federation of the Blind, Blair Seidlitz, Courtney Wheeler.(bwa) (bwa). (Entered: 12/15/2011)
30 MOTION for Daniel F. Goldstein to Appear Pro Hac Vice. Document filed by Georgina Kleege, National Federation of the Blind, Blair Seidlitz, Courtney Wheeler.(bwa) (bwa). (Entered: 12/15/2011)

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12/16/2011 12/16/2011 12/21/2011 12/21/2011 12/21/2011
12/21/2011 12/28/2011 12/28/2011 12/28/2011 12/28/2011
12/28/2011 12/29/2011 12/29/2011

31 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION to Substitute Party. Old Party: New Party: STIPULATION AND ORDER TO SUBSTIUTE PARTIES. Document filed by Hathitrust.(Petersen, Joseph) Modified on 12/19/2011 (ldi). (Entered: 12/16/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Joseph E. Petersen to E−MAIL Document No. 31 Stipulation to Judgments@nysd.uscourts.gov. This document is not filed via ECF. (ldi) (Entered: 12/19/2011)
32 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Cornell University.(Petersen, Joseph) (Entered: 12/21/2011)
CASHIERS OFFICE REMARK on 29 Motion to Appear Pro Hac Vice, 28 Motion to Appear Pro Hac Vice, 30 Motion to Appear Pro Hac Vice in the amount of $600.00, paid on 12/12/2011, Receipt Number 1024124,1024125,1024126. (jd) (Entered: 12/21/2011)
33 STIPULATION: NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between plaintiffs and defendants as follows:The Individual Defendants are hereby dismissed from the Action with prejudice. The caption in the Amended Complaint is deemed amended to reflect the substitution of the Substituted Defendants in the place and stead of the Individual Defendants. It as agreed among the parties that the operative complaint in the Action is the AmendedComplaint and that the operative answer is the Answer and that the parties shall not be obligated to, nor shall they, serve an amended complaint or answer reflecting the dismissal of the Individual Defendants and/or the substitution of the Substituted Defendants. SO ORDERED. (Signed by Judge Harold Baer on 12/21/2011) (ama) (Entered: 12/21/2011)
***DELETED DOCUMENT. Deleted document number 34 Stipulation. The document was filed as a duplicate of entry #33 in this case. (djc) (Entered: 12/29/2011)
35 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Judgment on the Pleadings. Document filed by Hathitrust.(Petersen, Joseph) Modified on 12/29/2011 (ldi). (Entered: 12/28/2011)
36 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Declaratory Judgment. Document filed by Hathitrust.(Petersen, Joseph) Modified on 12/29/2011 (ldi). (Entered: 12/28/2011)
37 MOTION for Judgment on the Pleadings. Document filed by Hathitrust.(Petersen, Joseph) (Entered: 12/28/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Joseph E. Petersen to RE−FILE Document 35 MOTION for Judgment on the Pleadings. Use the event type Memorandum of Law in Support of Motion found under the event list Replies, Opposition and Supporting Documents. Re−File and link ONLY to document # 37 Motion. (ldi) (Entered: 12/29/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Joseph E. Petersen to RE−FILE Document 36 MOTION for Declaratory Judgment. Use the event type Declaration in Support of Motion found under the event list Replies, Opposition and Supporting Documents. Re−File and link ONLY to document # 37 Motion. (ldi) (Entered: 12/29/2011)
38 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 35 MOTION for Judgment on the Pleadings. Document filed by Hathitrust. (Petersen, Joseph) Modified on 12/30/2011 (ldi). (Entered: 12/29/2011)
39 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Joseph Petersen in Support re: 36 MOTION for Declaratory Judgment. Document filed by Hathitrust. (Petersen, Joseph) Modified on 12/30/2011 (ldi). (Entered: 12/29/2011)

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12/29/2011 12/29/2011 12/29/2011 12/29/2011 12/30/2011 12/30/2011 01/02/2012
01/10/2012
01/24/2012 01/24/2012 01/31/2012

40 ORDER FOR PRO HAC VICE ADMISSION OF PETER JASZI granting 28 Motion for Peter Jaszi to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 12/29/2011) (lmb) Modified on 12/29/2011 (lmb). (Entered: 12/29/2011)
41 ORDER FOR PRO HAC VICE ADMISSION OF DANIEL F. GOLDSTEIN granting 30 Motion for Daniel F. Goldstein to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 12/29/2011) (lmb) (Entered: 12/29/2011)
42 ORDER FOR PRO HAC VICE ADMISSION OF LAURA G. ABELSON granting 29 Motion for Laura G. Abelson to Appear Pro Hac Vice. Application for Pro Hac Vice GRANTED. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 12/29/2011) (lmb) (Entered: 12/29/2011)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Joseph E. Petersen to RE−FILE Document 38 Memorandum of Law in Support of Motion, 39 Declaration in Support of Motion. ERROR(S): Documents linked to filing error. Re−File and link ONLY to document # 37 Motion. (ldi) (Entered: 12/30/2011)
43 MEMORANDUM OF LAW in Support re: 37 MOTION for Judgment on the Pleadings.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 12/30/2011)
44 DECLARATION of Joseph Petersen in Support re: 37 MOTION for Judgment on the Pleadings.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 12/30/2011)
45 ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Joseph Petersen dated 12/29/2011 re: We are attorneys for the defendants in the above−referenced action. We submit this letter pursuant to Rule 5A of Your Honor's Individual Rules of Practice to inform the Court that last night the defendants filed a motion for judgment on the pleadings seeking dismissal of certain of Plaintiffs' claims for lack of subject matter jurisdiction. ENDORSEMENT: If all parties to the M/D are in accord I can hear arguments the first 10 days of March and I will be in touch as to your most convenient date − otherwise the motion will be decided without oral argument − let me know on or before Friday 1/6/12. (Signed by Judge Harold Baer on 1/2/2012) (rjm) (Entered: 01/03/2012)
46 STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the parties below, that the time for Plaintiffs to respond to the motion by Defendants for Judgment on the Pleadings Based Upon Lack of Subject Matter Jurisdiction is hereby extended to January 31, 2012; and IT IS FURTHER STIPULATED AND AGREED, that the Defendants will serve any reply papers with respect to such motion on or before February 17, 2012; and IT IS FURTHER STIPULATED AND AGREED, consistent with the Court's January 2, 2012 "so ordered" endorsement of defendants' counsel's December 29, 2011 1etter to the Court, that oral argument be held on March 2, 2012 at such time as is convenient to the Court. ( Responses due by 1/31/2012.) (Signed by Judge Harold Baer on 1/10/2012) (lmb) (Entered: 01/10/2012)
47 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Harold Baer on 1/24/2012) (mro) (Entered: 01/24/2012)
48 MEMO ENDORSEMENT granting 27 Motion to Intervene. ENDORSEMENT: Motion granted on consent. The clerk is directed to close the motion to intervene. (Signed by Judge Harold Baer on 1/24/2012) (mro) (Entered: 01/24/2012)
49 DECLARATION of Edward H. Rosenthal in Opposition re: 37 MOTION for Judgment on the Pleadings.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, #

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01/31/2012
02/17/2012 02/17/2012 02/24/2012 02/28/2012
02/28/2012
03/20/2012 03/21/2012
04/10/2012

5 Exhibit E, # 6 Exhibit F)(Rosenthal, Edward) (Entered: 01/31/2012)
50 MEMORANDUM OF LAW in Opposition re: 37 MOTION for Judgment on the Pleadings.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 01/31/2012)
51 REPLY MEMORANDUM OF LAW in Support re: 37 MOTION for Judgment on the Pleadings.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 02/17/2012)
52 DECLARATION of Joseph Petersen in Support re: 37 MOTION for Judgment on the Pleadings.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A − Objections and Responses to Requests for Admission, # 2 Exhibit B − Objections and Responses to Request for Production, # 3 Exhibit C − Objections and Responses to Requests for Admissions, # 4 Exhibit D − Objections and Responses of Plaintiff SFF, # 5 Exhibit E − Objections and Responses of Plaintiff NFFO, # 6 Exhibit F − Objections and Responses of Plaintiff Authors Licensing and Collecting)(Petersen, Joseph) (Entered: 02/17/2012)
53 NOTICE OF CHANGE OF ADDRESS by Joseph E. Petersen on behalf of All Defendants. New Address: 1114 Avenue of the Americas, 21st Floor, New York, NY, 10036,. (Petersen, Joseph) (Entered: 02/24/2012)
54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada.(Rosenthal, Edward) (Entered: 02/28/2012)
55 MEMORANDUM OF LAW in Support re: 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 02/28/2012)
56 NOTICE OF APPEARANCE by Robert Nathan Potter on behalf of Hathitrust (Potter, Robert) (Entered: 03/20/2012)
57 STIPULATION: IT IS HEREBY STIPULATED AND AGREED, that the time for Defendants and Intervenor Defendants to respond to the February 28, 2012 motion by Plaintiffs for Partial Judgment on the Pleadings is hereby extended to April 20, 2012. IT IS FURTHER STIPULATED AND AGREED, that the Plaintiffs will serve any reply papers with respect to such motion on or before May 11, 2012. IT IS FURTHER STIPULATED AND AGREED, that no party shall file any further dispositive motions of any type prior to May 20, 2012. Set Deadlines/Hearing as to 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings. :( Responses due by 4/20/2012) (Signed by Judge Harold Baer on 3/21/2012) (jfe) (Entered: 03/21/2012)
59 MOTION for Jonathan Band to Appear Pro Hac Vice. Document filed by American Library Association, Association of College and Research Libraries, Association of Research Libraries.(bwa) (arc). (Entered: 04/16/2012)

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58 ANSWER to 4 Amended Complaint,,,,,,,. Document filed by Georgina Kleege, Georgina Kleege, Blair Seidlitz, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler, Courtney Wheeler. (Attachments: # 1 Rule 7.1 Disclosure)(Abelson, Laura) (Entered: 04/12/2012)
60 ORDER FOR ADMISSION PRO HAC VICE granting 59 Motion for Jonathan Band to Appear Pro Hac Vice. It is hereby Ordered that Jonathan Band be admitted Pro Hac Vice to appear for all purposes for counsel for amici American Library Association, Association of College and Research Libraries, and Association of Research Libraries. ENDORSEMENT: Application for Pro Hac Vice granted. The Clerk is instructed to close this motion. (Signed by Judge Harold Baer on 4/19/2012) (mro) Modified on 4/20/2012 (mro). (Entered: 04/20/2012)
61 RESPONSE in Opposition re: 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings. Of Defendants Intervenors'. Document filed by Georgina Kleege, Georgina Kleege, National Federation of the Blind, Blair Seidlitz, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler, Courtney Wheeler. (Goldstein, Daniel) (Entered: 04/20/2012)
62 MOTION for Leave to File Brief Amici Curiae. Document filed by American Library Association, Association of College and Research Libraries, Association of Research Libraries.(Band, Jonathan) (Entered: 04/20/2012)
63 BRIEF Amici Curiae in Opposition of Plaintiffs' Motion for Partial Judgment on the Pleadings. Document filed by American Library Association, Association of College and Research Libraries, Association of Research Libraries.(Band, Jonathan) (Entered: 04/20/2012)
64 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Library Association, Association of College and Research Libraries, Association of Research Libraries.(Band, Jonathan) (Entered: 04/20/2012)
65 MEMORANDUM OF LAW in Opposition re: 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings.. Document filed by Hathitrust. (Potter, Robert) (Entered: 04/20/2012)
CASHIERS OFFICE REMARK on 59 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 04/11/2012, Receipt Number 1035078. (jd) (Entered: 04/24/2012)
66 ENDORSED LETTER addressed to Judge Harold Baer Jr. from Edward H. Rosenthal dated 5/1/12 re: Counsel for the plaintiffs requests permission for the plaintiffs to file a 15−page reply brief in connection with plaintiffs' motion for partial judgment on the pleadings. ENDORSEMENT: So ordered. (Signed by Judge Harold Baer on 5/7/2012) (mro) (Entered: 05/07/2012)
67 REPLY MEMORANDUM OF LAW in Support re: 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 05/11/2012)
68 ENDORSED LETTER addressed to Judge Harold Baer from Joseph Petersen dated 5/10/2012 re: Discovery dispute and to request direction from the Court on scheduling as it relates to the parties' filing of summary judgment motions. ENDORSEMENT: This problem should have been brought to my attention earlier and certainly not on the eve of the discovery cutoff and I trust it will not happen again. (1) l'd like a list of all depositions−name and role and schedule, (2) the three who are "too busy" will appear in NY wit hin the next ten (10) days at their convenience and I'd like a note from Mr. Salamanca's doctor as to his ability or lack thereof to participate at his bedside or wherever in an hour (1) of questions and answers. (Signed by Judge Harold Baer on 5/14/2012) (cd) (Entered:

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05/17/2012
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05/14/2012)
Minute Entry for proceedings held before Judge Harold Baer: Oral Argument held on 5/17/2012 re: 62 MOTION for Leave to File Brief Amici Curiae. filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings. filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Pat Cummins, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society. (js) (Entered: 06/05/2012)
69 TRANSCRIPT of Proceedings re: MOTIONS held on 5/17/2012 before Judge Harold Baer. Court Reporter/Transcriber: William Richards, (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 6/22/2012. Redacted Transcript Deadline set for 7/2/2012. Release of Transcript Restriction set for 8/30/2012.(McGuirk, Kelly) (Entered: 05/29/2012)
70 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a MOTION proceeding held on 5/17/12 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: 05/29/2012)
71 ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Edward H. Rosenthal dated 5/29/12 re: Counsel for the plaintiffs requests that the last day for fully briefed motions be served and filed be extended for one week to 7/27/12. Counsel proposes the following schedule: moving papers by 6/29; opposition by 7/20 and reply by 7/27. ENDORSEMENT: Fine. ( Motions due by 6/29/2012., Responses due by 7/20/2012, Replies due by 7/27/2012.) (Signed by Judge Harold Baer on 6/6/2012) (mro) Modified on 6/7/2012 (mro). (Entered: 06/06/2012)
72 ORDER granting 62 Motion for Leave to File Document. It is hereby ORDERED that the unopposed Motion for Leave to File Brief Amici Curiae filed by the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries is GRANTED. The Clerk of Court is directed to close the motion and remove it from my docket. (Signed by Judge Harold Baer on 6/18/2012) (lmb) (Entered: 06/19/2012)
73 ENDORSED LETTER addressed to Judge Harold Baer Jr. from Edward R. Rosenthal dated 6/28/12 re: Counsel writes on behalf of the parties to request that they be permitted to serve redacted versions of their papers and to submit an unredacted set of the papers for filing under seal. The parties also request that they be permitted to serve a memorandum of law not longer than thirty pages. ENDORSEMENT: 30 pages is OK no further extensions by any party redacted and unredacted versions will be submitted. (Signed by Judge Harold Baer on 6/28/2012) (mro) (Entered: 06/29/2012)
74 MOTION for Summary Judgment. Document filed by Georgina Kleege, National Federation of the Blind, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. Responses due by 7/20/2012(Goldstein, Daniel) (Entered: 06/29/2012)
75 MEMORANDUM OF LAW in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 06/29/2012)
76 RULE 56.1 STATEMENT. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 06/29/2012)

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77 DECLARATION of LAURA ABELSON in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Attachments: # 1 Exhibit A − CCB Depo, # 2 Exhibit B − Google Clancy, # 3 Exhibit C − interrogatories, # 4 Exhibit D − Kleege, # 5 Exhibit E − Seidlitz, # 6 Exhibit F − Wheeler)(Goldstein, Daniel) (Entered: 06/29/2012)
78 DECLARATION of DR. MARC MAURER in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 06/29/2012)
79 DECLARATION of GEORGE KERSCHER in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 06/29/2012)
80 DECLARATION of JAMES FRUCHTERMAN in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 06/29/2012)
81 MOTION for Summary Judgment. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada.(Rosenthal, Edward) (Entered: 06/29/2012)
82 DECLARATION of Paul Aiken in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D (part 1), # 5 Exhibit D (part 2), # 6 Exhibit D (part 3))(Rosenthal, Edward) (Entered: 06/29/2012)
83 DECLARATION of T.J. Stiles in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
84 DECLARATION of Trond Andreassen in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
85 DECLARATION of Owen Atkinson in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges

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Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
86 DECLARATION of Pat Cummings in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
87 DECLARATION of Kelly Duffin in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
88 DECLARATION of Francis Farley−Chevrier in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norman J. Pattiz, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
89 DECLARATION of Erik Grundstrom in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
90 DECLARATION of Louise Hedberg in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Fred Ruiz, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
91 DECLARATION of Jan Terje Helmli in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
92 DECLARATION of Isabel Howe in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat

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Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
93 DECLARATION of Isabel Howe in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Rosenthal, Edward) (Entered: 06/29/2012)
94 DECLARATION of Roxana Robinson in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
95 DECLARATION of Helge Ronning in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
96 DECLARATION of Andre Roy in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
97 DECLARATION of James Shapiro in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Sherry L. Lansing, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
98 DECLARATION of Daniele Simpson in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains

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Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
99 DECLARATION of Fay Weldon in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, S. Martin Taylor, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit A, # 2 Exhibit B (part 1), # 3 Exhibit B (part 2), # 4 Exhibit B (part 3))(Rosenthal, Edward) (Entered: 06/29/2012)
100 MOTION for Summary Judgment. Document filed by Hathitrust. Responses due by 7/20/2012(Petersen, Joseph) (Entered: 06/29/2012)
101 DECLARATION of John White in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rosenthal, Edward) (Entered: 06/29/2012)
102 DECLARATION of Stanley Katz in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
103 DECLARATION of Margret Leary in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
104 DECLARATION of Neil R. Smalheiser in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
105 MEMORANDUM OF LAW in Support re: 74 MOTION for Summary Judgment. CORRECTED. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 06/29/2012)
107 DECLARATION of Faith C. Hensrud in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
108 DECLARATION of Joel Waldfogel, Ph.D. in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
109 DECLARATION of Professor Daniel Gervais in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
110 DECLARATION of John Wilkin in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A (Part 1 of 2), # 2 Exhibit A (Part 2 of 2), # 3 Exhibit B−C)(Petersen, Joseph) (Entered: 06/29/2012)
111 AFFIRMATION of Joseph Petersen in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A−W)(Petersen, Joseph) (Entered: 06/29/2012)

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06/29/2012 06/29/2012 07/02/2012 07/02/2012

112 MEMORANDUM OF LAW in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
113 RULE 56.1 STATEMENT. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 06/29/2012)
114 DECLARATION of Edward H. Rosenthal (redacted) in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5 (Redacted), # 6 Exhibit 6 (Redacted), # 7 Exhibit 7 (Redacted), # 8 Exhibit 8 (Redacted), # 9 Exhibit 9 (Redacted), # 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, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80 (Redacted), # 81 Exhibit 81 (Redacted), # 82 Exhibit 82 (Redacted), # 83 Exhibit 83 (Redacted), # 84 Exhibit 84 (Redacted), # 85 Exhibit 85 (Redacted), # 86 Exhibit 86, # 87 Exhibit 87 (Redacted), # 88 Exhibit 88 (Redacted), # 89 Exhibit 89 (Redacted), # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92 (Redacted), # 93 Exhibit 93 (Redacted), # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102 (Part A), # 103 Exhibit 102 (Part B), # 104 Exhibit 103, # 105 Exhibit 104, # 106 Exhibit 105)(Rosenthal, Edward) (Entered: 06/29/2012)
115 MEMORANDUM OF LAW in Support re: 81 MOTION for Summary Judgment. (redacted). Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
116 RULE 56.1 STATEMENT. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 06/29/2012)
117 DECLARATION of George Kerscher in Support re: 74 MOTION for Summary Judgment.. Document filed by National Federation of the Blind. (Attachments: # 1 Exhibit Exhiit A to Declaration of George Kerscher)(Bernstein, Robert) (Entered: 07/02/2012)
118 DECLARATION of James Fruchterman in Support re: 74 MOTION for Summary Judgment.. Document filed by National Federation of the Blind. (Attachments: # 1 Exhibit Exhibit A − Curriculum Vitae of James Fruchterman)(Bernstein, Robert)

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07/03/2012 07/06/2012 07/06/2012 07/07/2012 07/07/2012 07/11/2012
07/11/2012
07/13/2012 07/19/2012 07/20/2012 07/20/2012

(Entered: 07/02/2012)
119 DECLARATION of Joel Waldfogel, Ph.D. (redacted) in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/03/2012)
120 MOTION to File Amicus Brief. Document filed by American Library Association, Association of College and Research Libraries, Association of Research Libraries.(Band, Jonathan) (Entered: 07/06/2012)
121 BRIEF re: 120 MOTION to File Amicus Brief. in Support of Defendant's Motion for Summary Judgment. Document filed by American Library Association, Association of College and Research Libraries, Association of Research Libraries.(Band, Jonathan) (Entered: 07/06/2012)
122 FIRST MOTION for Leave to File. Document filed by DIGITAL HUMANITIES AND LAW SCHOLARS.(Colman, Charles) (Entered: 07/07/2012)
123 FIRST MEMORANDUM OF LAW in Support re: 100 MOTION for Summary Judgment.. Document filed by DIGITAL HUMANITIES AND LAW SCHOLARS. (Colman, Charles) (Entered: 07/07/2012)
124 DECLARATION of Benjamin Edelman (redacted) (CORRECTED VERSION) in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/11/2012)
125 DECLARATION of Edward H. Rosenthal (redacted) (CORRECTED VERSION) in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, David Crane, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit 5 (redacted) (CORRECTED VERSION), # 2 Exhibit 6 (redacted) (CORRECTED VERSION), # 3 Exhibit 7 (redacted) (CORRECTED VERSION), # 4 Exhibit 8 (redacted) (CORRECTED VERSION), # 5 Exhibit 9 (redacted) (CORRECTED VERSION), # 6 Exhibit 10 (redacted0 (CORRECTED VERSION), # 7 Exhibit 80 (redacted) (CORRECTED), # 8 Exhibit 81 (redacted) (CORRECTED VERSION), # 9 Exhibit 82 (redacted) (CORRECTED VERSION), # 10 Exhibit 83 (redacted) (CORRECTED VERSION), # 11 Exhibit 84 (redacted) (CORRECTED VERSION), # 12 Exhibit 85 (redacted) (CORRECTED VERSION), # 13 Exhibit 87 (redacted) (CORRECTED VERSION), # 14 Exhibit 88 (redacted) (CORRECTED VERSION), # 15 Exhibit 89 (redacted) (CORRECTED VERSION), # 16 Exhibit 92 (redacted) (CORRECTED VERSION), # 17 Exhibit 93 (redacted) (CORRECTED VERSION))(Rosenthal, Edward) (Entered: 07/11/2012)
126 SEALED DOCUMENT placed in vault.(nm) (Entered: 07/13/2012)
127 ORDER: With the consent of all parties, that the Non−conforming documents be deleted and access thereto permanently removed. (Signed by Judge Harold Baer on 7/19/2012) (jar) (Entered: 07/19/2012)
128 RESPONSE in Opposition re: 81 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 07/20/2012)
129 DECLARATION of James Fruchterman in Opposition re: 81 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered:

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07/20/2012 07/20/2012
07/20/2012
07/20/2012 07/20/2012 07/20/2012
07/20/2012 07/20/2012 07/20/2012

07/20/2012)
130 COUNTER STATEMENT TO 116 Rule 56.1 Statement,,., RULE 56.1 STATEMENT. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 07/20/2012)
131 DECLARATION of Paul Aiken (Second) in Opposition re: 74 MOTION for Summary Judgment., 100 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/20/2012)
132 DECLARATION of Jeremy S. Goldman (redacted) in Opposition re: 100 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/20/2012)
133 COUNTER STATEMENT TO 113 Rule 56.1 Statement. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois. (Rosenthal, Edward) (Entered: 07/20/2012)
134 COUNTER STATEMENT TO 76 Rule 56.1 Statement. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/20/2012)
135 MEMORANDUM OF LAW in Opposition re: 74 MOTION for Summary Judgment., 100 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/20/2012)
136 DECLARATION of Bernt Hugenholtz in Opposition re: 81 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/20/2012)
137 DECLARATION of (REDACTED) Cory Snavely in Opposition re: 81 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/20/2012)
138 DECLARATION of (REDACTED) Joseph Petersen in Opposition re: 81 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/20/2012)

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07/20/2012 07/20/2012 07/25/2012 07/27/2012
07/27/2012
07/27/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012 08/03/2012
08/03/2012

139 COUNTER STATEMENT TO 116 Rule 56.1 Statement,,. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/20/2012)
140 MEMORANDUM OF LAW in Opposition re: 81 MOTION for Summary Judgment. (REDACTED). Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/20/2012)
141 SEALED DOCUMENT placed in vault.(mps) (Entered: 07/25/2012)
142 DECLARATION of Jeremy S. Goldman in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/27/2012)
143 REPLY MEMORANDUM OF LAW in Support re: 81 MOTION for Summary Judgment.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 07/27/2012)
144 DECLARATION of John Wilkin in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/27/2012)
145 DECLARATION of Joseph Petersen (redacted) in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/27/2012)
146 REPLY MEMORANDUM OF LAW in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 07/27/2012)
147 DECLARATION of James Fruchterman in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 07/27/2012)
148 DECLARATION of Fredric Schroeder in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 07/27/2012)
149 REPLY MEMORANDUM OF LAW in Support re: 74 MOTION for Summary Judgment.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 07/27/2012)
150 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Jessica P. Weber to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−7702049. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Georgina Kleege, Georgina Kleege, National Federation of the Blind, Blair Seidlitz, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler, Courtney Wheeler. (Attachments: # 1 Exhibit Certificate of Good Standing NY, # 2 Exhibit Certificate of Good Standing MD, # 3 Text of Proposed Order)(Weber, Jessica) Modified on 8/3/2012 (wb). (Entered: 08/03/2012)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 150 MOTION for Jessica P. Weber to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−7702049. Motion and supporting papers to be reviewed by Clerk's Office staff.. The Order has to Contain all the Attorney's Information. (wb) (Entered:

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08/03/2012 08/03/2012 08/06/2012
08/16/2012 08/22/2012 08/22/2012 09/28/2012 10/10/2012

08/03/2012)
151 MOTION for Jessica P. Weber to Appear Pro Hac Vice CORRECTED. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Georgina Kleege, Georgina Kleege, National Federation of the Blind, Blair Seidlitz, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler, Courtney Wheeler. (Attachments: # 1 Exhibit Certificate of Good Standing New York, # 2 Exhibit Certificate of Good Standing Maryland, # 3 Text of Proposed Order)(Weber, Jessica) (Entered: 08/03/2012)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 151 MOTION for Jessica P. Weber to Appear Pro Hac Vice CORRECTED. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/03/2012)
Minute Entry for proceedings held before Judge Harold Baer: Oral Argument held on 8/6/2012 re: 74 MOTION for Summary Judgment. filed by Courtney Wheeler, National Federation of the Blind, The National Federation of the Blind, Blair Seidlitz, Georgina Kleege, 120 MOTION to File Amicus Brief. filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 122 FIRST MOTION for Leave to File. filed by DIGITAL HUMANITIES AND LAW SCHOLARS, 81 MOTION for Summary Judgment. filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Pat Cummins, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society. (js) (Entered: 08/20/2012)
152 SEALED DOCUMENT placed in vault.(mps) (Entered: 08/16/2012)
153 TRANSCRIPT of Proceedings re: CONFERNCE held on 8/6/2012 before Judge Harold Baer. Court Reporter/Transcriber: Alena Lynch, (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 9/17/2012. Redacted Transcript Deadline set for 9/27/2012. Release of Transcript Restriction set for 11/26/2012.(McGuirk, Kelly) (Entered: 08/22/2012)
154 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNCE proceeding held on 8/6/12 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: 08/22/2012)
155 ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Jessica P. Weber dated 9/28/12 re: Counsel writes to request that the fee accompanying her motion for admission pro hac vice be applied to her petition for admission to the United States District Court for the Southern District of New York. ENDORSEMENT: Please apply the fee to Ms. Weber's petition for admission to the SDNY Court. (Signed by Judge Harold Baer on 9/28/2012) (mro) (Entered: 09/28/2012)
156 OPINION &ORDER # 102471re: 74 MOTION for Summary Judgment filed by Courtney Wheeler, National Federation of the Blind, The National Federation of the Blind, Blair Seidlitz, Georgina Kleege, 120 MOTION to File Amicus Brief filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 37 MOTION for Judgment on the Pleadings. filed by Hathitrust, 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Pat Cummins, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Danielle Simpson, Andre Roy,

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10/10/2012 10/12/2012
10/26/2012 10/26/2012 10/26/2012 10/26/2012 10/26/2012 11/01/2012 11/01/2012 11/01/2012

Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 122 FIRST MOTION for Leave to File filed by DIGITAL HUMANITIES AND LAW SCHOLARS, 81 MOTION for Summary Judgment filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Pat Cummins, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 100 MOTION for Summary Judgment filed by Hathitrust. I have considered the parties' remaining arguments and find them to be without merit. For the foregoing reasons, Plaintiffs' motions are DENIED. Defendants' motion for judgment on the pleadings is GRANTED in part and DENIED in part: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs' OWP claims are not ripe. Defendants' and Defendant Intervenors' motions for summary judgment are GRANTED: their participation in the MDP and the present application of the HDL are protected under fair use. The two unopposed motions for leave to file briefs as amici are GRANTED. The Clerk of the Court is instructed to close the seven open motions, close the case, and remove it from my docket. (Signed by Judge Harold Baer on 10/10/2012) (lmb) Modified on 10/16/2012 (ft). (Entered: 10/10/2012)
Transmission to Judgments and Orders Clerk. Transmitted re: 156 Memorandum &Opinion to the Judgments and Orders Clerk. (lmb) (Entered: 10/10/2012)
157 CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion and Order dated October 10, 2012, Plaintiffs' motions are denied; Defendants' motion for judgment on the pleadings is granted in part and denied in part: the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs' OWP claims are not ripe; Defendants and Defendant Intervenors' motions for summary judgment are granted: their participation in the MDP and the present application of the HDL are protected under fair use; and the two unopposed motions for leave to file briefs as amici are granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 10/12/12) (Attachments: # 1 NOTICE OF RIGHT TO APPEAL)(ml) (Entered: 10/12/2012)
158 MOTION for Attorney Fees. Document filed by Hathitrust.(Petersen, Joseph) (Entered: 10/26/2012)
159 MEMORANDUM OF LAW in Support re: 158 MOTION for Attorney Fees.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 10/26/2012)
160 DECLARATION of Roger L. Zissu in Support re: 158 MOTION for Attorney Fees.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 10/26/2012)
161 DECLARATION of Raymond J. Dowd in Support re: 158 MOTION for Attorney Fees.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 10/26/2012)
162 DECLARATION of Joseph Petersen in Support re: 158 MOTION for Attorney Fees.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A, # 2 Errata B, # 3 Exhibit C (Part 1 of 4), # 4 Exhibit C (Part 2 of 4), # 5 Exhibit C (Part 3 of 4), # 6 Exhibit C (Part 4 of 4))(Petersen, Joseph) (Entered: 10/26/2012)
163 MOTION for Attorney Fees of Defendant Intervenors. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler.(Goldstein, Daniel) (Entered: 11/01/2012)
164 MEMORANDUM OF LAW in Support re: 163 MOTION for Attorney Fees of Defendant Intervenors.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 11/01/2012)
165 DECLARATION of Daniel F. Goldstein in Support re: 163 MOTION for Attorney Fees of Defendant Intervenors.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Attachments: # 1

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11/08/2012 11/08/2012
11/08/2012 11/08/2012

Exhibit A, # 2 Exhibit B−1, # 3 Exhibit B−2, # 4 Exhibit B−3, # 5 Exhibit B−4, # 6 Exhibit B−5, # 7 Exhibit B−6, # 8 Exhibit B−7, # 9 Exhibit B−8, # 10 Exhibit B−9, # 11 Exhibit B−10, # 12 Exhibit B−11, # 13 Exhibit B−12)(Goldstein, Daniel) (Entered: 11/01/2012)
166 ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Edward H. Rosenthal dated 11/6/2012 re: Counsel for plaintiff writes that the parties have agreed, subject to the Court's approval, that plaintiiffs' opposition to the motion will be served on or before November 20, 2012 and any reply by defendants will be filed on or before December 6, 2012. ENDORSEMENT: granted.., ( Replies due by 12/6/2012.) (Signed by Judge Harold Baer on 11/7/2012) (pl) (Entered: 11/08/2012)
167 NOTICE OF APPEAL from 157 Clerk's Judgment,,, 156 Memorandum &Opinion,,,,,,,,,,. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. Filing fee $ 455.00, receipt number 0208−7961302. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Rosenthal, Edward) (Entered: 11/08/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 167 Notice of Appeal,,. (nd) (Entered: 11/08/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 125 Declaration in Support of Motion,,,,, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, David Crane, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 59 MOTION for Jonathan Band to Appear Pro Hac Vice. filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 42 Order on Motion to Appear Pro Hac Vice, 12 Order on Motion to Appear Pro Hac Vice, 93 Declaration in Support of Motion,, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 92 Declaration in Support of Motion,, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 62 MOTION for Leave to File Brief Amici Curiae. filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 110 Declaration in Support of Motion filed by Hathitrust, 91 Declaration in Support of Motion,, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 50 Memorandum of Law in Opposition to Motion,, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Pat Cummins, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 57 of 66
Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society, 10 Order on Motion to Appear Pro Hac Vice, 5 MOTION for Alex S. Fonoroff to Appear Pro Hac Vice. filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, David Crane, Sherry L. Lansing, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, George Kieffer, Norman J. Pattiz, Denise Ilitch, Olivia P. Maynard, Hathitrust, Andrew C. Richner, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 118 Declaration in Support of Motion filed by National Federation of the Blind, 52 Declaration in Support of Motion,, filed by Hathitrust, 77 Declaration in Support of Motion, filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 117 Declaration in Support of Motion filed by National Federation of the Blind, 70 Notice of Filing Transcript, 137 Declaration in Opposition to Motion filed by Hathitrust, 132 Declaration in Opposition to Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 74 MOTION for Summary Judgment. filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, National Federation of the Blind, 167 Notice of Appeal,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 138 Declaration in Opposition to Motion filed by Hathitrust, 131 Declaration in Opposition to Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 102 Declaration in Support of Motion filed by Hathitrust, 55 Memorandum of Law in Support of Motion,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 128 Response in Opposition to Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 160 Declaration in Support of Motion filed by Hathitrust, 164 Memorandum of Law in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 39 Declaration in Support of Motion filed by Hathitrust, 19 Stipulation and Order,, 64 Rule 7.1 Corporate Disclosure Statement filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries,

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 58 of 66
124 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 53 Notice of Change of Address filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 78 Declaration in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 135 Memorandum of Law in Opposition to Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 84 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 85 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 80 Declaration in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 99 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, S. Martin Taylor, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 37 MOTION for Judgment on the Pleadings. filed by Hathitrust, 2 Rule 7.1 Corporate Disclosure Statement, filed by Pat Cummins, Fay Weldon, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Roxana Robinson, T.J. Stiles, James Shapiro, Andre Roy, The Australian Society Of Authors Limited, The Authors Guild, Inc., 38 Memorandum of Law in Support of Motion filed by Hathitrust, 166 Endorsed Letter, Set Deadlines,, 26 Declaration in Support of Motion, filed by National Federation of the Blind, 36 MOTION for Declaratory Judgment. filed by Hathitrust, 49 Declaration in Opposition to Motion,,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund,

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 59 of 66
The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 24 MOTION to Intervene As Defendants. filed by Courtney Wheeler, Georgina Kleege, Blair Seidlitz, National Federation of the Blind, 18 Order on Motion to Appear Pro Hac Vice, 58 Answer to Amended Complaint, filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 140 Memorandum of Law in Opposition to Motion filed by Hathitrust, 122 FIRST MOTION for Leave to File. filed by DIGITAL HUMANITIES AND LAW SCHOLARS, 86 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 7 MOTION for Allison Scott Roach to Appear Pro Hac Vice. filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 82 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 15 Notice of Appearance,,, filed by Cora J Griffin, Mark J. Bradley, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, MaryEllen Kiley Bishop, Fred Ruiz, Michael J Falbo, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, 83 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 20 Scheduling Order, 30 MOTION for Daniel F. Goldstein to Appear Pro Hac Vice. filed by Courtney Wheeler, Georgina Kleege, Blair Seidlitz, National Federation of the Blind, 113 Rule 56.1 Statement filed by Hathitrust, 144 Declaration in Support of Motion filed by Hathitrust, 123 Memorandum of Law in Support of Motion filed by DIGITAL HUMANITIES AND LAW SCHOLARS, 104 Declaration in Support of Motion filed by Hathitrust, 71 Endorsed Letter, Set Deadlines,,,, 98 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 60 of 66
Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 111 Affirmation in Support of Motion filed by Hathitrust, 44 Declaration in Support of Motion filed by Hathitrust, 100 MOTION for Summary Judgment. filed by Hathitrust, 103 Declaration in Support of Motion filed by Hathitrust, 95 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 134 Counter Statement to Rule 56.1,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 45 Endorsed Letter,,, 33 Stipulation and Order,,, 114 Declaration in Support of Motion,,,,,,,,,,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 148 Declaration in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 101 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 155 Endorsed Letter, 142 Declaration in Support of Motion,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 48 Order on Motion to Intervene, 121 Brief, filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 43 Memorandum of Law in Support of Motion filed by Hathitrust, 14 Notice of Appearance filed by Cornell University, 75 Memorandum of Law in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 68 Endorsed Letter,,, 3 Notice of Case Assignment/Reassignment, 8 MOTION for Joseph M. Beck to Appear Pro Hac Vice. filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 61 of 66
Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 147 Declaration in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 31 MOTION to Substitute Party. Old Party: New Party: STIPULATION AND ORDER TO SUBSTIUTE PARTIES. filed by Hathitrust, 108 Declaration in Support of Motion filed by Hathitrust, 133 Counter Statement to Rule 56.1,, filed by Pat Cummins, Pat Cummings, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 47 Protective Order, 57 Stipulation and Order, Set Motion and RRDeadlines/Hearings,,,, 61 Response in Opposition to Motion, filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, National Federation of the Blind, 1 Complaint,, filed by Pat Cummins, Fay Weldon, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Roxana Robinson, T.J. Stiles, James Shapiro, Andre Roy, The Australian Society Of Authors Limited, The Authors Guild, Inc., 119 Declaration in Support of Motion filed by Hathitrust, 23 Answer to Amended Complaint,,,, filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 94 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 35 MOTION for Judgment on the Pleadings. filed by Hathitrust, 136 Declaration in Opposition to Motion filed by Hathitrust, 22 Scheduling Order,, 29 MOTION for Laura G. Abelson to Appear Pro Hac Vice. filed by Courtney Wheeler, Georgina Kleege, Blair Seidlitz, National Federation of the Blind, 88 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Norman J. Pattiz, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 69 Transcript,, 13 Stipulation and Order, Set Deadlines, 25 Memorandum of Law in Support of Motion filed by Georgina Kleege, 129 Declaration in Opposition to Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 151 MOTION for Jessica P. Weber to Appear Pro Hac Vice CORRECTED. Motion and supporting papers to be reviewed by Clerk's Office staff. filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, National Federation of the Blind, 90 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fred Ruiz, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 62 of 66
Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 149 Reply Memorandum of Law in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 40 Order on Motion to Appear Pro Hac Vice, 112 Memorandum of Law in Support of Motion filed by Hathitrust, 115 Memorandum of Law in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., Cashiers Remark, 161 Declaration in Support of Motion filed by Hathitrust, 120 MOTION to File Amicus Brief. filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 76 Rule 56.1 Statement filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 154 Notice of Filing Transcript, 105 Memorandum of Law in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 60 Order on Motion to Appear Pro Hac Vice,, 97 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, Sherry L. Lansing, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 6 MOTION for W. Andrew Pequignot to Appear Pro Hac Vice. filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Angelo Loukakis, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 56 Notice of Appearance filed by Hathitrust, 9 Order on Motion to Appear Pro Hac Vice, 16 MOTION for Ronald L. Raider to Appear Pro Hac Vice. filed by Cora J Griffin, Mark J. Bradley, David G. Walsh, Jose F. Vazquez, Monica Lozano, Andrea Fischer Newman, Leslie Tang Schilling, The Regents Of The University Of Michigan, Michael J. Spector, Jeffrey Bartell, Cornell University, Bonnie Reiss, Philip N. Eskew, Jr., Alfredo Mireles, Jr., Hadi Makarechian, Richard C. Blum, S. Martin Taylor, Bruce D. Varner, MaryEllen Kiley Bishop, S. Mark Tyler, Fred Ruiz, Michael J Falbo, Charlene Zettel, Derica W. Rice, Judith V. Crain, Patrick A. Shoulders, Troy Sherven, Charles Pruitt, Bruce Cole, William R. Cast, Russell Gould, Paul Wachter, Odessa Johnson, William H. Strong, Laurence B. Deitch, William De La Pena, Tony Evers, The Trustees Of Indiana University, Sherry L. Lansing, David Crane, The Board Of Regents Of The University Of Wisconsin System, Julia Donovan Darlow, Norman J. Pattiz, George Kieffer, Denise Ilitch, Olivia P. Maynard, Andrew C. Richner, Hathitrust, Brent Smith, Katherine Pointer, Katherine E. White, John Drew, Eddie Island, Thomas E. Reilly, Jr., George M. Marcus, Edmund Manydeeds, The Regents of the University of California, 54 MOTION for Judgment on the Pleadings Motion for Partial Judgment on the Pleadings. filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 41 Order

Case: 1:11-cv-6351 As of: 11/04/2016 11:52 AM EDT 63 of 66
on Motion to Appear Pro Hac Vice, 11 Order on Motion to Appear Pro Hac Vice, 107 Declaration in Support of Motion filed by Hathitrust, 73 Endorsed Letter,, 157 Clerk's Judgment,,, 28 MOTION for Peter Jaszi to Appear Pro Hac Vice. filed by Courtney Wheeler, Georgina Kleege, Blair Seidlitz, National Federation of the Blind, 158 MOTION for Attorney Fees. filed by Hathitrust, 139 Counter Statement to Rule 56.1 filed by Hathitrust, 96 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 159 Memorandum of Law in Support of Motion filed by Hathitrust, 81 MOTION for Summary Judgment. filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 109 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 4 Amended Complaint,,,,,,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 87 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 79 Declaration in Support of Motion filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 65 Memorandum of Law in Opposition to Motion filed by Hathitrust, 46 Stipulation and Order, Set Deadlines,,,,,, 130 Counter Statement to Rule 56.1, Rule 56.1 Statement filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 67 Reply Memorandum of Law in Support of Motion,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 51 Reply Memorandum of Law in Support of Motion filed by Hathitrust, 162 Declaration in Support of Motion, filed by Hathitrust, 66 Endorsed Letter, 145 Declaration in Support of Motion filed by Hathitrust, 127 Order, 89 Declaration in Support of Motion,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 21 Scheduling Order,, 143 Reply Memorandum of Law in Support of Motion,, filed by Pat Cummins, Fay Weldon, Pat Cummings, the

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11/20/2012
11/20/2012 11/20/2012
11/20/2012 12/06/2012

Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Jack R. Salamanca, T.J. Stiles, James Shapiro, Danielle Simpson, Andre Roy, Helge Ronning, Erik Grundstrom, The Authors Guild, Inc., 72 Order on Motion for Leave to File Document, 165 Declaration in Support of Motion,, filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 156 Memorandum &Opinion,,,,,,,,,, 163 MOTION for Attorney Fees of Defendant Intervenors. filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, 153 Transcript,, 150 MOTION for Jessica P. Weber to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−7702049. Motion and supporting papers to be reviewed by Clerk's Office staff. filed by Courtney Wheeler, Georgina Kleege, The National Federation of the Blind, Blair Seidlitz, National Federation of the Blind, 146 Reply Memorandum of Law in Support of Motion filed by Hathitrust, 63 Brief, filed by American Library Association, Association of Research Libraries, Association of College and Research Libraries, 116 Rule 56.1 Statement,, filed by Fay Weldon, Pat Cummings, the Writers' Union of Canada, Daniele Simpson, Union Des Ecrivaines Et Des Ecrivains Quebecois, Angelo Loukakis, Authors' Licensing and Collecting Society, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Sveriges Forfattarforbund, Jack R. Salamanca, T.J. Stiles, James Shapiro, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Erik Grundstrom, The Authors Guild, Inc., 32 Rule 7.1 Corporate Disclosure Statement filed by Cornell University, 27 MOTION to Intervene As Defendants. filed by National Federation of the Blind were transmitted to the U.S. Court of Appeals. (nd) (Entered: 11/08/2012)
168 ENDORSED LETTER addressed to Judge Harold Baer from Edward H. Rosenthal dated 11/16/2012 re: We are writing with the consent of counsel for Defendant−Intervenors National Federation of the Blind, et al. with respect to the briefing schedule for NFB's motion for costs and attorneys fees. The parties have agreed, subject to the Court's approval, that Plaintiffs' opposition to the motion will be served on or before 11/20/2012 and any reply by Defendants will be filed on or before 12/6/2012. This would result in both Defendants' and the NFB's motions for costs and attorneys' fees being on the same schedule and fully briefed by 12/6/2012. ENDORSEMENT: Same schedule seem appropriate − granted. (Signed by Judge Harold Baer on 11/20/2012) (mt) (Entered: 11/20/2012)
Set/Reset Deadlines: Opposition to motion due by 11/20/2012. Reply by defendants due by 12/6/2012. (mt) (Entered: 11/20/2012)
169 DECLARATION of Edward H. Rosenthal in Opposition re: 158 MOTION for Attorney Fees., 163 MOTION for Attorney Fees of Defendant Intervenors.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rosenthal, Edward) (Entered: 11/20/2012)
170 MEMORANDUM OF LAW in Opposition re: 158 MOTION for Attorney Fees., 163 MOTION for Attorney Fees of Defendant Intervenors.. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Fay Weldon, the Writers' Union of Canada. (Rosenthal, Edward) (Entered: 11/20/2012)
171 REPLY MEMORANDUM OF LAW in Support re: 163 MOTION for Attorney Fees of Defendant Intervenors.. Document filed by Georgina Kleege, Blair Seidlitz, The National Federation of the Blind, Courtney Wheeler. (Goldstein, Daniel) (Entered: 12/06/2012)

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12/06/2012 02/15/2013
06/10/2014
07/01/2014
08/06/2014 09/16/2014 09/29/2014

172 REPLY MEMORANDUM OF LAW in Support re: 158 MOTION for Attorney Fees.. Document filed by Hathitrust. (Petersen, Joseph) (Entered: 12/06/2012)
173 MEMORANDUM ORDER denying 158 Motion for Attorney Fees; denying 163 Motion for Attorney Fees. On October 10, 2012, I granted the defendants' ("Libraries") and the defendant−intervenors' ("NFB") motions for summary judgment and held, among other things, that their participation in the Mass Digitization Project and the present application of the HathiTrust Digital Library are protected under fair use. See Authors Guild, Inc. v. HathiTrust, No. 11 Civ. 6351,2012 WL 4808939, at *15 (S.D.N.Y. Oct. 10, 2012). Familiarity with that Opinion and Order is assumed. The Libraries and NFB now move for costs and attorneys' fees under Rule 54(d) of the Federal Rules of Civil Procedure and the Copyright Act, 17 U.S.C. § 505. The motions for costs and attorneys' fees are denied. The Clerk of Court is instructed to close the open motions. (Signed by Judge Harold Baer on 2/14/2013) (mro) Modified on 2/19/2013 (mro). (Entered: 02/15/2013)
174 TRUE COPY ORDER of USCA as to 167 Notice of Appeal, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society USCA Case Number 12−4547. The judgment of the district court is AFFIRMED, in part, insofar as the district court concluded that certain plaintiffsappellants lack associational standing; that the doctrine of fair use allows defendantsappellees to create a fulltext searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities; and that claims predicated upon the Orphan Works Project are not ripe for adjudication. We VACATE the judgment, in part, insofar as it rests on the district courts holding related to the claim of infringement predicated upon defendantsappellees preservation of copyrighted works, and we REMAND for further proceedings consistent with this opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 6/10/2014. (tp) (Entered: 06/10/2014)
175 MANDATE of USCA (Certified Copy) as to 167 Notice of Appeal,, filed by Norsk Faglitteraer Forfatter0OG Oversetterforening, Fay Weldon, Roxana Robinson, Sveriges Forfattarforbund, The Authors League Fund, Inc, Pat Cummings, the Writers' Union of Canada, Jack R. Salamanca, T.J. Stiles, Daniele Simpson, James Shapiro, Union Des Ecrivaines Et Des Ecrivains Quebecois, Andre Roy, Helge Ronning, The Australian Society Of Authors Limited, Angelo Loukakis, Erik Grundstrom, The Authors Guild, Inc., Authors' Licensing and Collecting Society USCA Case Number 12−4547. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED in part, VACATED in part and REMANDED for further proceedings in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 07/01/2014. (Attachments: # 1 Opinion)(nd) (Entered: 07/01/2014)
NOTICE OF CASE REASSIGNMENT to Judge Naomi Reice Buchwald. Judge Harold Baer is no longer assigned to the case. (pgu) (Entered: 08/06/2014)
176 LETTER addressed to Judge Naomi Reice Buchwald from Edward H. Rosenthal dated September 16, 2014 re: Response to September 9, 2014 Letter from Hon. Buchwald. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon, the Writers' Union of Canada.(Rosenthal, Edward) (Entered: 09/16/2014)
177 LETTER addressed to Judge Naomi Reice Buchwald from Joseph Petersen dated 9/29/2014 re: Response to Mr. Rosenthals September 16, 2014 letter to the Court on behalf of Plaintiffs. Document filed by Hathitrust.(Petersen, Joseph) (Entered:

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09/30/2014
10/08/2014 12/03/2014 01/05/2015 01/06/2015

09/29/2014)
178 LETTER addressed to Judge Naomi Reice Buchwald from Edward H. Rosenthal dated September 30, 2014 re: Response to Court's letter dated September 9, 2014. Document filed by Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, Daniele Simpson, T.J. Stiles, Sveriges Forfattarforbund, The Australian Society Of Authors Limited, The Authors Guild, Inc., The Authors League Fund, Inc, Union Des Ecrivaines Et Des Ecrivains Quebecois, the Writers' Union of Canada.(Rosenthal, Edward) (Entered: 09/30/2014)
179 ORDER. Counsel are directed to appear for a conference with the Court, on October 30, 2014, at 3:30 P.M., at the United States Court House, 500 Pearl Street, New York, New York, in Courtroom 21A. IT IS SO ORDERED. (Conference set for 10/30/2014 at 03:30 PM in Courtroom 21A, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 10/7/2014) Copies Mailed By Chambers. (rjm) (Entered: 10/08/2014)
180 STIPULATION: NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, and respectfully requested, by and between counsel for the parties, that the court conference on Defendants' anticipated motion for summary judgment on the remanded issue be adjourned until January 5, 2015 at 3 p.m. ( Status Conference set for 1/5/2015 at 03:00 PM before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 12/3/2014) (mro) Modified on 12/5/2014 (mro). (Entered: 12/04/2014)
181 ORDER. The conference scheduled to be held this date at 3:00 P.M. is hereby adjourned without date. (Signed by Judge Naomi Reice Buchwald on 1/5/2015) (rjm) (Entered: 01/05/2015)
182 STIPULATION: IT IS HEREBY STIPULATED AND AGREED, by the parties, as follows: 1. Defendants hereby represent that the libraries at the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University (the "Libraries") have, to the best of Defendants' knowledge, only made a "replacement of a copy" (as that term is used in section 108(c) of the Copyright Act) from the HathiTrust Digital Library where: (i) the original copy that was being replaced was damaged, deteriorating, lost, or stolen; and (ii) it was determined, after a reasonable effort, that an unused replacement could not be obtained at a fair price; 2. Defendants hereby agree for a period of five (5) years from the date of this Stipulation to provide written notice to the Remaining Plaintiffs as soon as reasonable in the event the Libraries dispense with either of the practices, (i) or (ii), described in the previous clause (1), with such notice being sent by overnight delivery service to the undersigned counsel for the Remaining Plaintiffs and to the Authors Guild, which, although not a Remaining Plaintiff in this Action, will accept notice via its Executive Director, The Authors Guild, 31 East 32nd Street, 7th Floor, New York, NY 10016; and 3. Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, the Remanded Claim is hereby dismissed with prejudice, with each party to bear its own attorneys' fees and costs. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 1/6/2015) (ajs) (Entered: 01/07/2015)