Category Archives: Article 01

S 01

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DEFINITIONS

As used in this Amended Settlement Agreement and in other agreements that refer to the definitions in this Amended Settlement Agreement, the following terms are defined as set forthbelow. Additional terms are defined elsewhere in this Amended Settlement Agreement.

Also posted in Settlement | Comments closed

S 01.001

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Access Uses” means uses that may display Protected material from a Book or Insert to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display, Front Matter Display or Preview Uses. Institutional Subscriptions, Consumer Purchase and the Public Access Service are the only Access Uses authorized as of the Effective Date.

Also posted in Section 1.1, Settlement | Comments closed

S 01.002

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Accommodated Service” has the meaning set forth in Section 7.2(g) (Accommodated Service).

Also posted in Section 1.2, Settlement | Comments closed

S 01.003

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Action” means The Authors Guild, Inc., et al. v. Google Inc., Case No.05 CV 8136 (S.D.N.Y.).

Also posted in Section 1.3, Settlement | Comments closed

S 01.004

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Additional Contemplated Rightsholder Services Provider ” has the meaning set forth in Section 3.7 (Contemplated Rightsholder Services).

Also posted in Section 1.4, Settlement | Comments closed

S 01.005

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Adjunct Product” has the meaning set forth in Section 4.1(a)(ix) (Adjunct Products).

Also posted in Section 1.5, Settlement | Comments closed

S 01.006

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Administrative Costs” means the reasonable costs of (a) preparing and providing notice to the Settlement Class pursuant to the Article XII ( Class Notice Program) or as otherwise ordered by the Court; (b) setting up and operating the Settlement Administration Program and the Registry; and (c) any escrow fees paid to the Depository Bank and payments to an independent third party for services and expenses in connection with administration of the Settlement Fund, including the preparation and mailing of tax forms and tax returns.

Also posted in Section 1.6, Settlement | Comments closed

S 01.007

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Advertising Uses” has the meaning set forth in Section 3.14 (Advertising Uses).

Also posted in Section 1.7, Settlement | Comments closed

S 01.008

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Affiliate” of an entity means any legally recognizable entity that directly or indirectly Controls, is Controlled by, or is under common Control with such first entity, where “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies, whether through the ownership of voting shares, by contract, or otherwise, for so long as such Control exists.

Also posted in Section 1.8, Settlement | Comments closed

S 01.009

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Affiliate Program” has the meaning set forth in Section 4.5(b)(v) (Sale of Consumer Purchases through Affiliate Programs and Resellers).

Also posted in Section 1.9, Settlement | Comments closed

S 01.010

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Alternative Accommodated Service Provider” has the meaning set forth in Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider).

Also posted in Section 1.10, Settlement | Comments closed

S 01.011

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Amended Settlement Agreement” means this agreement and all of its attachments, as each may be amended from time to time pursuant to Section 17.27 (Amendments).

Also posted in Section 1.11, Settlement | Comments closed

S 01.012

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“Amended Settlement Agreement Date” means the date set forth at the end of this Amended Settlement Agreement.

Also posted in Section 1.12, Settlement | Comments closed

S 01.012

One response to “S 01.012”

  1. Gillian Spraggs says:

    The Authors Guild guidelines on eligibility for membership state: ‘Book authors must be published by an established American publisher.’ Huge numbers of foreign authors whose rights would be affected by the settlement (if it is ratified) are not only not members of the Authors Guild; because they have never been published in the US, they are not even eligible to belong to it. I understand (from listening to Pamela Samuelson’s lecture ‘Reflections on the Google Booksearch Settlement’) that before the settlement agreement can be finally ratified by the court, the judge must be satisfied that the plaintiffs are fully representative of the settlement class. Surely this fact by itself makes it clear that they are not, and cannot be.

Associational Plaintiffs” means The Authors Guild, Inc. and the Association of American Publishers, Inc.

Also posted in Section 1.12, Settlement | Comments closed

S 01.013

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“Amended Settlement Class” means all Persons that, as of January 5, 2009, have a Copyright Interest in one or more Books or Inserts. All Amended Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Amended Settlement Class are Google, the members of Amended Settlement Agreement Google’s Board of Directors and its executive officers, and the departments, agencies and instrumentalities of the United States Government, and the Court.

Also posted in Section 1.13, Settlement | Comments closed

S 01.013

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Audited Party” has the meaning set forth in Section 8.2(c)(i) (Audited Parties).

Also posted in Section 1.13, Settlement | Comments closed

S 01.014

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Arbitrator” has the meaning set forth in Section 9.3(a) (AAA Arbitration).

Also posted in Section 1.11, Settlement | Comments closed

S 01.014

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Author Sub-Class” means members of the Amended Settlement Class who are authors, and their heirs, successors and assigns, and any other members of the Amended Settlement Class who are not members of the Publisher Sub-Class.

Also posted in Section 1.14, Settlement | Comments closed

S 01.015

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Author-Publisher Procedures” means the document attached hereto as Attachment A (Procedures Governing Author Sub-Class and Publisher Sub-Class Under the Amended Settlement Agreement).

Also posted in Section 1.15, Settlement | Comments closed

S 01.016

9 responses to “S 01.016”

  1. ehasbrouck says:

    “a set of written or printed sheets of paper bound together in hard copy form” is far form the common-language meaning of “book”. In the absence of any definition or qualification of “bound” to exclude e.g. saddle-stitching (stapling) as a mode of binding, this definition would include almost all periodicals, even though the notice gives no clue of that, and one reading the notice would assume that only books and not magazines were included. And even if a saddle-stitched collection of sheets is deemed not to be “bound”, there is no meaningful distinction with respect to the mode of binding between magazines such as e.g. National Geographic (clearly a “book” under the settlement) and typical paperback books.

  2. I wondered for a while whether my undergraduate thesis qualified. I printed it out on acid-free paper, then inserted the pages in a clamshell binder. The university then took that copy, indexed it, and stuck it on a shelf somewhere deep deep in their offsite compact storage. “Book?”

    Fortunately for my sanity, I remembered that I hadn’t registered the copyright in it, and thus it fails prong (a) of the test here.

    As to your question, perhaps there’s no meaningful distinction between the paperback and National Geographic in terms of binding, but doesn’t this clause take care of that problem by specifically excluding “periodicals?”

  3. ehasbrouck says:

    “doesn’t this clause take care of that problem by specifically excluding “periodicals?””

    Maybe for National Geographic, but in general no, not as long as (1) the default is that anything “bound” is a “book” (including pamphlets and “ephemera” and handwritten manuscripts and other bound collections of papers that wouldn’t fit any definition of periodical) unless it can be shown to be a periodical, and (b) the definition of periodical is overly vageue and overly narrow.

  4. Gillian Spraggs says:

    “Fortunately for my sanity, I remembered that I hadn’t registered the copyright in it”

    This would not rescue any of us outside the US.

  5. One of the more neglected statements relating to the settlement, the letter of objection from the Spectrum Literary Agency (representing the Heinlein estate and others) , suggests that Google is attempting “to redefine copyright, in that their literature defines in-copyright work as that registered with the copyright office”. So your undergraduate thesis may not be safe from Google’s scanners after all.

  6. From the Objection by D.C. Comics: ‘Google has not made any commitment to refrain from adopting the same “copy first and negotiate later” approach for works deemed outside the scope of the proposed SA (e.g., Periodicals, unregistered works, works registered after the Notice Commencement Date).’ (p. 9 n.9)

  7. Elizabeth Townsend Gard says:

    How are they determining what counts as a “U.S. work”? This seems an unworkable definition. All works published in the U.S.? All works published by U.S. citizens? How has this been defined?

  8. The definition comes from 17 U.S.C. 101, where it depends both on the timing of publication and the domicile of the authors. It’s complex, and not always easy to check, but that’s a wart in U.S. copyright law. The settlement merely inherits that administrative difficulty.

  9. SCanzoneri says:

    It appears to me that under this definition a book with no text, such as a children’s book where the story is told entirely by illustrations, is covered by the settlement.

    However, in the revised settlement agreement children’s book illustrations have been removed from the definition of inserts. So, if a children’s book is written by one person and illustrated by another person, the illustrations are not covered by the agreement.

    What I want to know, at this point, is whether Google is agreeing to exclude from Google Books any copyrighted material not included in the settlement agreement; or is Google going to scan and display this material, and leave it up to the copyright holders to sue?

    There are a lot of books that are pretty much useless without the pictorial works that are excluded from the definition of insert. Clearly this is true of many picture books, where the story is told through the interaction of the words and illustrations; but it is also true of many works for adults. Without illustrations books on architecture and art will be of little use to readers; as will medical texts; how-to books; books on computer programs, graphic design, and photography.

    It seems to me that it is important to determine whether Google is actually going to keep subscribers to Google Books from seeing this material. If so, the “Great Google Library” will be much less useful to many subscribers and thus, less lucrative for both Google and for many rights-holders whose writing is included in the library.

    Also, doesn’t this mean that some class members (e.g., novelists) are likely to benefit far more from the settlement than other class members (e.g., picture book authors) because subscribers will not want to pay for the books that are useless without their pictorial materials ? Can the court approve a settlement where the terms of the settlement agreement will result in some class members benefiting more than others when there is no difference in the alleged damage to different groups of class members? If this was a something like a case against an airline for wrongfully adding a charge to tickets, it would be reasonable to give more money to class members who made more flights; but in this case, haven’t the plaintiffs alleged that all the class members were damaged in the same way? So how can they agree to a settlement that benefits one group of class members more than another group?

Book” means a written or printed work that (a) if a “United States work,” as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was as of January 5, 2009 (a) had been published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is (b) was subject to a Copyright Interest, and (c) (1) if a “United States work,” as defined in 17 U.S.C. § 101, was registered with the United States Copyright Office and (2) if not a United States work, either (x) was registered with the United States Copyright Office, or (y) had a place of publication in Canada, the United Kingdom or Australia, as evidenced by information printed in or on a hard copy of the work. Relevant information printed in or on a hard copy of the work may include, for example, a statement that the book was “Published in [Canada] or [the UK] or [Australia],” or the location or address of the publisher in one of those three countries. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than thirty-fivetwenty percent (3520%) of the pages of text (not including tables of contents, indices, blank pages, title pages, copyright pages and verso pages) contain more than fiftytwenty percent (5020%) music notation and, with or without lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, or (v) Government Works, or (vi) calendars. References in this Settlement Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.

Also posted in Section 1.16, Settlement | Comments closed

S 01.017

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Book Annotation” means user-generated text that is both (a) associated with the content on the page of a Book and (b) displayed on or over any web page on which a page of a Book appears.

Also posted in Section 1.17, Settlement | Comments closed

S 01.018

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Books Database ” has the meaning set forth in Section 3.1(b)(ii) (Books Database).

Also posted in Section 1.18, Settlement | Comments closed

S 01.019

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Business Day” means any day other than Saturday, Sunday, New Year’s Day, the observance of the Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day and any other day appointed as a federal or New York state holiday.

Also posted in Section 1.19, Settlement | Comments closed

S 01.020

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Cash Payment” has the meaning set forth in Section 5.1(a) (Cash Payments).

Also posted in Section 1.20, Settlement | Comments closed

S 01.021

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Charter” means the certificate of incorporation and bylaws of the Registry.

Also posted in Section 1.21, Settlement | Comments closed

S 01.022

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Claim” has the meaning set forth in Section 10.1(a) (Claim).

Also posted in Section 1.22, Settlement | Comments closed

S 01.023

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Claim Form” has the meaning set forth in Section 13.1 (Registration and Completing Claims).

Also posted in Section 1.23, Settlement | Comments closed

S 01.024

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Claimant” has the meaning set forth in Section 13.1 (Registration and Completing Claims).

Also posted in Section 1.24, Settlement | Comments closed

S 01.025

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Class Counsel” means the firms of Boni & Zack LLC, Milberg LLP, and Kohn, Swift & Graf, PC, as counsel for the Author Sub-Class, and the firm of Debevoise & Plimpton LLP, as counsel for the Publisher Sub-Class.

Also posted in Section 1.25, Settlement | Comments closed

S 01.026

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Class Notice Program” means the class notice program described in Article XII (Class Notice Program).

Also posted in Section 1.26, Settlement | Comments closed

S 01.027

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Collection” means the Books held by a Fully Participating Library or aCooperating Library that have been Digitized or are targeted for Digitization pursuant to a Digitization Agreement between Google and such Fully Participating Library or such Cooperating Library, which Books may be some or all of such Fully Participating Library’s or such Cooperating Library’s holdings.

Also posted in Section 1.27, Settlement | Comments closed

S 01.028

One response to “S 01.028”

  1. ehasbrouck says:

    The use of the singular “the Rightsholder” is clearly inappropriate here, since the definition of “Rightsholder” is based on that of “Settlement Class”, which in turn is based on “Copyright Interest” “including joint ownership”. This reflects both an erroneous assumption that rights are unitary and a failure to provide for situations where rights are divided and/or non-exclusive. (I suspect this reflects the legacy of print publishers’ typical false claim to hold all rights, when in fact electronic rights are often retained by worters.) It is, at best, ambiguous whether a work is considered “Commerically Avaailable” (with major implications that distinction would result in under the settlement) if one of the several Rightsholders is offering it for sale, but another is not. This is one of several ways the settlement would intrude improperly on publisher-author relations, susstituing the terms of the settlement for the terms of pre-existing publisher-author contracts.

Commercially Available” means, with respect to a Book, that theRightsholder of such Book, or such Rightsholder’s designated agent, is, at the time in question, offering the Book (other than as derived from a Library Scan) for sale new, from sellers anywhere in the world, through one or more then-customary channels of trade into purchases within the United States., Canada, the United Kingdom or Australia.

Also posted in Section 1.28, Settlement | Comments closed

S 01.029

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Competent Authority” means an individual who is employed in one of the professional occupations that is qualified to diagnose Print Disabilities under the federal law and regulations that govern the National Library Service for the Blind and Physically Handicapped or is licensed or otherwise certified or authorized under applicable state law or regulations to diagnose the existence of a Print Disability pursuant to standard and generally accepted methods of clinical evaluation.

Also posted in Section 1.29, Settlement | Comments closed

S 01.030

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Confidential Information ” has the meaning set forth in Section 15.1 (Confidential Information).

Also posted in Section 1.30, Settlement | Comments closed

S 01.031

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Consumer Price Index ” has the meaning set forth in Section 8.2(c)(iii) (Adjustment to Audit Costs).

Also posted in Section 1.31, Settlement | Comments closed

S 01.032

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Consumer Purchase” and “Consumer Purchases” mean a service provided by Google that allows a user, for a fee, to access and view Online the full contents of a Display Book, as specified in and subject to Section 4.2 (Consumer Purchases).

Also posted in Section 1.32, Settlement | Comments closed

S 01.033

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Consumer Subscription” has the meaning set forth in Section 4.7(d) (Consumer Subscription Models).

Also posted in Section 1.33, Settlement | Comments closed

S 01.034

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Contemplated Rightsholder Services” means Consumer Purchases and Institutional Subscriptions.

Also posted in Section 1.34, Settlement | Comments closed

S 01.035

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Continuous Preview” has the meaning set forth in Section 4.3(c)(iii) (Continuous Preview).

Also posted in Section 1.35, Settlement | Comments closed

S 01.036

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Cooperating Library” means any library physically located in the UnitedStates and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry), (b) provides Books to Google for Digitization but agrees that Google will not provide to such library a Digital Copy of such Books unless otherwise authorized by the Rightsholder, (c) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by Google to such library or that such library receives from Google in the future, and (d) enters into a Library-Registry(Cooperating) Agreement.

Also posted in Section 1.36, Settlement | Comments closed

S 01.037

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Copyright Act” means the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq.

Also posted in Section 1.37, Settlement | Comments closed

S 01.038

5 responses to “S 01.038”

  1. ehasbrouck says:

    This appears to imply that if nobody has an exclusive interest or exclusive licnse — for example, if the publisher-author contract provides that both the author and the publisher have nonexclusive rights to license electronic copying — than nobody has a “Copyright Interest” for purposes of the settlement. Why this definition? And what happens in such a case?

  2. All copyright interests start off being “exclusive” in the author (or the employer, in the case of a work made for hire). They can be transferred via “exclusive” licenses. Any “nonexclusive” licenses leave the interest where it was. Thus, copyright law subscribes to a kind of law of conservation of interests; they can be moved around, but not destroyed. If the contract gives both publisher and author a “nonexclusive” right to to license electronic copying, then the author is the owner for purposes of this section (since she started off with the interest and never transferred it via “exclusive” license).

  3. ehasbrouck says:

    “If the contract gives both publisher and author a “nonexclusive” right to to license electronic copying, then the author is the owner for purposes of this section (since she started off with the interest and never transferred it via “exclusive” license).”

    I assume that also implies the reverse: If the copyright was registered in the name of the publisher (routine for e.g. academic works), then the publisher is the sole party with a “copyright interest” as defined in the settlement, with sole right to control inclusion or use of the book, even if the publisher-author contract explicitly gave the author nonexclusive e-rights (and perhaps nonexclusive print re-use rights as well).

    So a party who in fact has an interest (economic and otherwise) and contractual rights in a work, might not have an “interest” or any right of control of the use of that work under the settlement.

    (I don’t know if we should attach any significance to the fact that this is probably most common for books from academic publishers (“copyright by the president and fellows of harvard…”) and to the role of academic libraries in the book-scanning.)

  4. If the copyright was registered in the name of the publisher, that typically means that the author has already transferred all her interests to the publisher.

  5. ehasbrouck says:

    Typically, no — most contracts (other than work for hire) assign some rights, often nonexclusive, to the author, even when copyright is registered in the name of the publisher. Yes, absent any other contractual provisions, registration in the name of the publisher would connote exclusive assignment of all rights, but there is usually a more complex division, and often sharing, of rights under a book contract.

Copyright Interest” means (a) ownership (including joint ownership) of a United States copyright interest or (b) an exclusive license of a United States copyright interest, in each case only if and to the extent the interest is implicated by a use that is authorized or for which compensation could be payable under this Settlement Agreement.

Also posted in Section 1.38, Settlement | Comments closed

S 01.039

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Coupling Requirement” has the meaning set forth in Section 3.5(b)(iii) (Coupling Requirement).

Also posted in Section 1.39, Settlement | Comments closed

S 01.040

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Court” means the U.S. District Court for the Southern District of New York.

Also posted in Section 1.40, Settlement | Comments closed

S 01.041

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Decision” has the meaning set forth in Section 9.7 (Decision).

Also posted in Section 1.41, Settlement | Comments closed

S 01.042

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Depository Bank” means Citizens Bank.

Also posted in Section 1.42, Settlement | Comments closed

S 01.043

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Designated Representative” means a Person designated from time to time by the Fully Participating Libraries and the Cooperating Libraries pursuant to Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement and Attachment 1 to Exhibit C of the Library-Registry (Cooperating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) to convey to Google and/or the Registry, as applicable, instructions, decisions and positions of the Fully Participating Libraries and the Cooperating Libraries, or only the Fully Participating Libraries, as the case may be, on matters to which Section 7.4(a) (Designated Representative and Security Representatives) of this Amended Settlement Agreement refers.

Also posted in Section 1.43, Settlement | Comments closed

S 01.044

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“Creative Commons License” means a Creative Commons license or similar contractual permission for use that is published by the Creative Commons Corporation at http://www.creativecommons.org (or successor website).

Also posted in Definitions, Section 1.44, Settlement | Comments closed

S 01.044

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Digital Copy” of a Book or Insert means a set (or portion thereof) of electronic files created by or for Google or provided to Google59) in connection with [GBS](nylssites.wpengine.com/thepublicindex/archives/category/settlement/s-1/s-1-60, including the image files of the individual pages of the Book or Insert along with text (currently generated from OCR technology), coordinate information for the text, information about the ordering of pages along with page-level metadata such as page number and other similar information, regardless of the means or technology used to prepare such copy, whether now known or hereafter developed, and any digital copy of such set of electronic files.

Also posted in Section 1.44, Settlement | Comments closed

S 01.045

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Digitization Agreement” means an agreement between Google and a library to Digitize works held by that library, as such agreement may be amended from time to time.

Also posted in Section 1.45, Settlement | Comments closed

S 01.046

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Digitize” means to convert a work from a hard copy (not including microform) format into an electronic representation, using any means and any technology, whether now known or hereafter developed, including making necessary technical adaptations to achieve such conversion (but not including adapting or altering the content of such written work). “Digitization,” “Digitizing” and “Digitized” have corresponding meanings.

Also posted in Section 1.46, Settlement | Comments closed

S 01.047

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Display Books” means Books for which one or more Display Uses are authorized pursuant to this Amended Settlement Agreement.

Also posted in Section 1.47, Settlement | Comments closed

S 01.048

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Display Uses” means the following: Snippet Display, Front Matter Display, Access Uses and Preview Uses.

Also posted in Section 1.48, Settlement | Comments closed

S 01.049

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Effective Date” means the first date upon which each and all of the following events shall have occurred: (a) the Final Approval Date has occurred; (b) the Court has entered the Final Judgment and Order of Dismissal with prejudice as to Google against Plaintiffs and all Rightsholders; and (c) the time for any appeal from the Final Judgment and Order of Dismissal in the Action and the Court’s approval of this Amended Settlement Agreement has expired, or, if appealed, the Final Judgment and Order of Dismissal has been affirmed in its entirety by the court of last resort to which any such appeal has been taken and such affirmance has become no longer subject to further appeal or review. Neither Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into consideration in calculating the abovestated time periods.

Also posted in Section 1.49, Settlement | Comments closed

S 01.050

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Entire Insert” means an Insert that is an entire work, including forewords, afterwords, introductions, entire works included in anthologies, and entire poems, short stories, song lyrics or essays.

Also posted in Section 1.50, Settlement | Comments closed

S 01.051

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Expression” means either (a) Protected expression, which, in the case of text, means no fewer than three (3) contiguous words, or (b) any contiguous set of ten (10) or more words from a Book or Insert, not counting expression that is not Protected.

Also posted in Section 1.51, Settlement | Comments closed

S 01.052

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Fiction” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).

Also posted in Section 1.52, Settlement | Comments closed

S 01.053

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Final Approval Date” means the date the Court has certified the Amended Settlement Class and approved this Amended Settlement Agreement in all respects, pursuant to Rule 23 of the Federal Rules of Civil Procedure.

Also posted in Section 1.53, Settlement | Comments closed

S 01.054

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Final Fairness Hearing” has the meaning set forth in Article XIV (Final Fairness Hearing).

Also posted in Section 1.54, Settlement | Comments closed

S 01.055

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Final Settlement Deposit” has the meaning set forth in Section 5.3(b) (Final Settlement Deposit).

Also posted in Section 1.55, Settlement | Comments closed

S 01.056

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Fixed Preview” has the meaning set forth in Section 4.3(b)(iii) (Fixed Preview).

Also posted in Section 1.56, Settlement | Comments closed

S 01.057

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Front Matter Display” means the display to users of Google Products and Services of one or more of the title page, copyright page, table of contents, other pages that appear prior to the table of contents at the front of the Book, and indexes of a Book.

Also posted in Section 1.57, Settlement | Comments closed

S 01.058

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Fully Participating Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry and (b) enters into a Library-Registry (Fully Participating) Agreement.

Also posted in Section 1.58, Settlement | Comments closed

S 01.059

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Google” means Google Inc. and its Affiliates.

Also posted in Section 1.59, Settlement | Comments closed

S 01.060

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Google Book Search,” or “GBS,” means the program(s) pursuant to which Google, having Digitized works obtained pursuant to the Google Partner Program, the GLP or other means authorized by the Book’s Rightsholder or the Registry (or having obtained works in Digitized form through such programs or other means authorized by the Book’s Rightsholder or the Registry), transmits Online (a) information about such works and (b) portions of, and in some cases all of, the Digitized works, whatever such program(s) may be called by Google from time to time.

Also posted in Section 1.60, Settlement | Comments closed

S 01.061

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Google Library Project” or the “GLP” means the program(s) pursuant to which Google obtains Books and other works from libraries or other sources (including through Books drives, from Rightsholders directly or elsewhere, but not including the Google Partner Program, for the purposes of Digitizing them (if not obtained in Digitizing form) and including them in GBS, whatever such program(s) may be called by Google from time to time.

Also posted in Section 1.61, Settlement | Comments closed

S 01.062

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Google Partner Program” means the program(s) pursuant to which Persons who have Copyright Interests in works contract with Google (other than by operation of this Amended Settlement Agreement to grant to Google the right to include such works in GBS, whatever such program(s) may be called by Google from time to time.

Also posted in Section 1.62, Settlement | Comments closed

S 01.063

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Google Products and Services” means any and all products and services offered to the public by Google directly or indirectly through third parties from time to time, now or in the future, whereby Google makes information accessible to a user Online, using any means and any technology, whether now known or hereafterdeveloped. Google Products and Services include GBS.

Also posted in Section 1.63, Settlement | Comments closed

S 01.064

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Government Works” means written or printed works covered by Section 105 of the Copyright Act or state law equivalents thereto.

Also posted in Section 1.64, Settlement | Comments closed

S 01.065

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Gross Revenues” has the meaning set forth in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models).

Also posted in Section 1.65, Settlement | Comments closed

S 01.066

Comments are closed.

Higher Education Institution” means an Institution of Higher Education, as defined by the Carnegie Classifications of Institutions of Higher Education from time to time or, if and when the Carnegie Foundation for the Classification of Teaching is no longer classifying colleges and universities in the United States, as such term or its successor term is defined by any successor classification system used to classify colleges and universities in the United States.

Also posted in Section 1.66, Settlement | Comments closed

S 01.067

Comments are closed.

Host Site” means an institution authorized under this Amended Settlement Agreement to host the Research Corpus pursuant to the requirements of Section 7.2(d)(ii) (Host Sites).

Also posted in Section 1.67, Settlement | Comments closed

S 01.068

Comments are closed.

Host Site-Registry Agreement ” has the meaning set forth in Section7.2(d)(ii) (Host Sites).

Also posted in Section 1.68, Settlement | Comments closed

S 01.069

Comments are closed.

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

Also posted in Section 1.69, Settlement | Comments closed

S 01.070

Comments are closed.

Inconsequential Breach” means a breach that (a) is not the result of reckless, willful or intentional misconduct by Google, a Host Site or a Fully Participating Library, (b) does not lead to, or present an immediate risk of, any Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, (c) does not represent an extensive or systematic failure to comply with the Security Standard or the applicable then-current Security Implementation Plan and (d) when identified, is promptly corrected or cured.

Also posted in Section 1.70, Settlement | Comments closed

S 01.071

Comments are closed.

Initial Settlement Deposit” has the meaning set forth in Section 5.3(a) (Initial Settlement Deposit).

Also posted in Section 1.71, Settlement | Comments closed

S 01.072

3 responses to “S 01.072”

  1. SCanzoneri says:

    A problem with this section is that the term “children’s Book” is not defined elsewhere in the Agreement. Because this section says that pictorial works such as photographs and illustrations are not “inserts” unless they are children’s Book illustrations, the lack of a definition of “children’s book” could cause confusion in the administration of the settlement.

    One gets the feeling that the people who drafted the Agreement had traditional picture books in mind, but the range of illustrative material in children’s books today is very wide.

  2. The proposed definition suggested by four authors is:

    Children’s Book means any Book that is marketed to or read by or to children under 18 and/or used in elementary, middle, or secondary schools, including textbooks.

  3. SCanzoneri says:

    Mr. Grimmelmann, I am really impressed by how on top of the case you are. Actually, I’m one of the people advocating for this definition. (The idea came up after I prepared an article explaining the settlement to other members of the Children’s Book Guild of Washington DC.) I think I am also (cringe) the one responsible for missing a typo in it. The language should have a “be” where there is an “or” is , so the definition goes …. “marketed to be read by or to children” ….

    Another thing we are advocating is that Google give public school libraries Free Access Service licenses, as well as giving such licenses to public libraries. If the Agreement included a definition of “children’s Book”, Google could offer public school libraries a Children’s Public Access Service license that is limited to children’s books in the Institutional Subscription Base.

    From our own experiences, we know that many children — particularly disadvantaged children — do not get into public libraries. In addition, even if kids do go to a public library, even very liberal parents may not want the kids going into the Institutional Subscription Base. Anyone who spends time with middle school children can easily imagine a 12 year old finding pages from the Kama Sutra or The Joy of Sex, printing them out, showing them off on the playground, and creating all sorts of bother and embarrassment.

    We don’t have any idea whether our suggestions will get anywhere — either with the Court or with the parties. But for people who write & illustrate books for kids it is difficult to understand why the biggest library in history seems to be being built without a children’s section.

Insert” means the following content, if and to the extent such content is independently Protected by the Copyright Act and, if a “United States work” as defined in 17 U.S.C. § 101, is covered by a registration with the United States Copyright Office as of the Notice Commencement Date,January 5, 2009, either as a stand-alone work or as part of another, registered work from which it was excerpted, and is either (a) contained in a Book if there is no Person who has a Copyright Interest in such content andas well as a Copyright Interest in such Book’s Principal Work, (b) contained in a Public Domain Book, or (c) contained in a Government Work that, on or before the Notice Commencement Date,January 5, 2009 was published or distributed to the public or made available for public access: (i) text, such as forewords,afterwords, prologues, epilogues, essays, poems, quotations, letters, song lyrics, or excerpts from other Books, Periodicals or other works; and(ii) children’s Book illustrations; (iii) musical notation (i.e., notes on a staff or tablature); and (iv) tables, charts and graphs. The term “Insert” does not include (1) pictorial works, such as photographs, illustrations (other than children’s Book illustrations), maps or , paintings, or music notation (i.e., notes on a staff or tablature)or (2) works that are in, or as they become in, the public domain under the Copyright Act in the United States.

Also posted in Section 1.72, Settlement | Comments closed

S 01.073

Comments are closed.

Institutional Consortium” means a group of libraries, companies, institutions or other entities located within the United States that is a member of the International Coalition of Library Consortia with the exception of Online Computer Library Center (OCLC) – affiliated networks.

Also posted in Section 1.73, Settlement | Comments closed

S 01.074

Comments are closed.

Institutional Subscription” means any service of a limited duration provided by Google to an institution for a fee that allows Online access to and viewing of the full contents of the Institutional Subscription Database, as specified in and subject to Section 4.1 (Institutional Subscriptions).

Also posted in Section 1.74, Settlement | Comments closed

S 01.075

Comments are closed.

Institutional Subscription Database” has the meaning set forth in Section 4.1(a)(v) (Versions of Institutional Subscriptions).

Also posted in Section 1.75, Settlement | Comments closed

S 01.076

Comments are closed.

ISBN” means International Standard Book Number or, if and when ISBNs are no longer being issued, the number issued pursuant to any successor system used internationally to uniquely identify books and books-like products.

Also posted in Section 1.76, Settlement | Comments closed

S 01.077

Comments are closed.

Library Building” means a building physically located in the United States that, in whole or in part, is used by a Public Library and the part so used is predominantly used for the storage of, and access to, such Public Library library books or library services.

Also posted in Section 1.77, Settlement | Comments closed

S 01.078

Comments are closed.

Library Digital Copy” or “LDC” means the set (or portion thereof) of all Digital Copies of Books in a Fully Participating Library’s Collection, which Digital Copies are made by copying the Library Scan (or are otherwise made pursuant to Section 7.2(a) (Making of Library Digital Copies)), and which Google provides to the Fully Participating Library.

Also posted in Section 1.78, Settlement | Comments closed

S 01.079

Comments are closed.

Library Link” means a link placed on pages in Google Book Search dedicated to a single Library Work that directs a user to existing Online sources, which, free of charge to the user (and with no out-of-pocket payments by Google to third-party providers of such sources), assists such user in finding that Library Work in a library.

Also posted in Section 1.79, Settlement | Comments closed

S 01.080

Comments are closed.

Library-Registry Agreement” means an agreement substantially similar in form to one of the agreements attached hereto as Attachment B (Form of Library- Registry Agreements) between the Registry and a Fully Participating Library, Cooperating Library or Public Domain Library. The Library-Registry (Fully Participating) Agreement attached hereto as Attachment B-1 is for Fully Participating Libraries. The Library-Registry (Cooperating) Agreement attached hereto as Attachment B-2 is for Cooperating Libraries. The Library-Registry (Public Domain) Agreement attached hereto as Attachment B-3 is for Public Domain Libraries.

Also posted in Section 1.80, Settlement | Comments closed

S 01.081

Comments are closed.

Library Scan” means the Digital Copy of a Library Work Digitized by or for Google or by or for a Fully Participating Library or a Cooperating Library and received by Google, and all Digital Copies of such Digital Copy.

Also posted in Section 1.81, Settlement | Comments closed

S 01.082

Comments are closed.

Library Work” means a Book that a Fully Participating Library or a Cooperating Library makes available to Google, either in hard copy (not including microform) format to be Digitized, or in a form Digitized by or for such Fully Participating Library or Cooperating Library, for the Google Library Project.

Also posted in Section 1.82, Settlement | Comments closed

S 01.083

Comments are closed.

Limited Subscription” means an Institutional Subscription offered to a library that allows the subscribing library access only to the Books Digitized from that library, or only to the Books held by that library.

Also posted in Section 1.83, Settlement | Comments closed

S 01.084

Comments are closed.

List Price” means the then-current price for Institutional Subscriptions and Consumer Purchases determined in accordance with Sections 4.1 (Institutional Subscriptions) and 4.2 (Consumer Purchases), respectively.

Also posted in Section 1.84, Settlement | Comments closed

S 01.085

Comments are closed.

Metadata” means data that describes other data (e.g., a library catalog of publications and the author, title, publisher, ISBN, and date of publication of the publications in the catalog are all types of Metadata).

Also posted in Section 1.85, Settlement | Comments closed

S 01.086

Comments are closed.

Net Advertising Revenues” means, subject to Section 4.5(b) (Discounting, Special Offers and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google for Advertising Uses displayed to U.S. users, less ten percent (10%) for Google’s operating costs.

Also posted in Section 1.86, Settlement | Comments closed

S 01.087

Comments are closed.

Net Purchase Revenues” means, subject to Section 4.5(b) (Discounting, Special Offers and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google from subscribers or purchasers within the U.S. from all Revenue Models other than Advertising Uses, less ten percent (10%) for Google’s operating costs.

Also posted in Section 1.87, Settlement | Comments closed

S 01.088

Comments are closed.

No Display Books” are Books for which no Display Uses are authorized pursuant to this Amended Settlement Agreement.

Also posted in Section 1.88, Settlement | Comments closed

S 01.089

Comments are closed.

No Preview” has the meaning set forth in Section 4.3(b)(ii) (No Preview).

Also posted in Section 1.89, Settlement | Comments closed

S 01.090

Comments are closed.

Non-Consumptive Research” means research in which computational analysis is performed on one or more Books, but not research in which a researcher reads or displays substantial portions of a Book to understand the intellectual content presented within the Book. Categories of Non-Consumptive Research include:

Also posted in Section 1.90, Settlement | Comments closed

S 01.090.1

Comments are closed.

(a) Image Analysis and Text Extraction – Computational analysis of the Digitized image artifact to either improve the image (e.g., de-skewing) or extracting textual or structural information from the image (e.g., OCR).

Also posted in Section 1.90, Section 1.90(a), Settlement | Comments closed

S 01.090.2

Comments are closed.

(b) Textual Analysis and Information Extraction – Automated techniques designed to extract information to understand or develop relationships among or within Books or, more generally, in the body of literature contained within the Research Corpus. This category includes tasks such as concordance development, collocation extraction, citation extraction, automated classification, entity extraction, and natural language processing.

Also posted in Section 1.90, Section 1.90(b), Settlement | Comments closed

S 01.090.3

Comments are closed.

(c) Linguistic Analysis – Research that performs linguistic analysis over the Research Corpus to understand language, linguistic use, semantics and syntax as they evolve over time and across different genres or other classifications of Books.

Also posted in Section 1.90, Section 1.90(c), Settlement | Comments closed

S 01.090.4

Comments are closed.

(d) Automated Translation – Research on techniques for translating works from one language to another.

Also posted in Section 1.90, Section 1.90(d), Settlement | Comments closed

S 01.090.5

Comments are closed.

(e) Indexing and Search – Research on different techniques for indexing and search of textual content.

Also posted in Section 1.90, Section 1.90(e), Settlement | Comments closed

S 01.091

Comments are closed.

Non-Display Uses” means uses that do not display Expression from Digital Copies of Books or Inserts to the public. By way of example, display of bibliographic information, full-text indexing without display of Expression (such as listing the number or location of search matches), geographic indexing of Books, algorithmic listings of key terms for chapters of Books, and internal research and development using Digital Copies are all Non-Display Uses.

Also posted in Section 1.91, Settlement | Comments closed

S 01.092

Comments are closed.

Not Counted Library Work” means any Library Work with respect to the Library Scan of which Google has reasonable quality, legal, or technical concerns that are not solely editorial-based concerns.

Also posted in Section 1.92, Settlement | Comments closed

S 01.093

Comments are closed.

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

Also posted in Section 1.93, Settlement | Comments closed

S 01.094

Comments are closed.

Notice Commencement Date” means the first date of the Class Notice Program, as agreed between Plaintiffs and Google and approved by the Court.January 5, 2009.

Also posted in Section 1.94, Settlement | Comments closed

S 01.095

Comments are closed.

OCR” means optical character recognition.

Also posted in Section 1.95, Settlement | Comments closed

S 01.096

Comments are closed.

Online” means over the Internet or other data or communication network, with or without caching, through a browser or other computer program used for accessing sites or information on a network.

Also posted in Section 1.96, Settlement | Comments closed

S 01.097

Comments are closed.

Online Book Page” means any page in Google Products and Services dedicated to a single Book, including any Preview Use page, any Snippet Display page, any page of a Book displayed in Google Products and Services, and search results pages resulting from a search within a single Book. Any general search results page in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be a page dedicated to a single Book, even if a single Book is the sole search result of a given search on the search results page.

Also posted in Section 1.97, Settlement | Comments closed

S 01.098

Comments are closed.

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

Also posted in Section 1.98, Settlement | Comments closed

S 01.099

Comments are closed.

Other Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that has signed a Digitization Agreement with Google, but has not entered into a Library-Registry Agreement.

Also posted in Section 1.99, Settlement | Comments closed

S 01.100

Comments are closed.

Partial Insert” means an Insert other than an Entire Insert.

Also posted in Section 1.100, Settlement | Comments closed

S 01.101

Comments are closed.

Also posted in Section 1.101, Settlement | Comments closed

S 01.102

5 responses to “S 01.102”

  1. ehasbrouck says:

    Many magazines and other serials are irregularly published, lack specific intent of the publisher to continue indefinitely or any evidence of such intent, even if it might exist (the most common intent of a commercial publisher, of course, is to continue publication not indefinitely but as long as it promises to be profitable), deliberately have distinctive designs and themes for each issue (especially art and deisgn publications), or have a primary purpose other than, “to transmit information” (is art as a purpose considered “transmission of information”? ), any of which would cause them to be considered “books” for purposes of the settlement.

  2. The periodicity requirement would seem to leave many zines outside the definition of “periodical,” along with many more formal publications. Timothy McSweeney’s Quarterly Concern has a stated frequency that hasn’t always matched its actual frequency (“Late Winter 2000”) and is supposed only to run for fifty-six issues. The boundary cases here are going to be hard, no matter what definition you use.

  3. Elizabeth Townsend Gard says:

    This is a distinctly different definition than under the 1909 Act and the Compendium, and will add to confusion or revision of law in a pretty significant way. It is both broader (time period) and narrower (periodicals include many more kinds of works under the 1909 Copyright Act.)

  4. Interesting. Has anyone asked the parties why the definition diverges?

  5. ‘Comic book’ — this might be termed the DC Comics amendment.

    I detect signs of hasty revision: it’s a rare comic book ‘whose primary purpose is to transmit information’, unless you are defining information so broadly that the clause becomes useless as a qualifier.

Periodical” means a newspaper, magazine, comic book, or journal and any other publication (a) that is published at a stated frequency with the intent to continue publication indefinitely; (b) whose continuity shows from issue to issue (e.g., by serialization of articles or by successive issues carrying the same style, format, theme, or subject matter); (c) whose primary purpose is to transmit information; (d) whose content consists of original or reprinted articles on one topic or many topics, listings, photographs, illustrations, graphs, a combination of advertising and nonadvertising matter, comic strips, legal notices, editorial material, cartoons, or other subject matter; and (e) for which the primary distribution of each issue is made before that of each succeeding issue.; including any book form compilation of any of the foregoing.

Also posted in Section 1.102, Settlement | Comments closed

S 01.103

Comments are closed.

Person” means a natural person and any corporation, partnership, limited liability company, association, whether incorporated or not, and any other entity organized under [United States]http://www.thepublicindex.org/archives/category/settlement/s-1/s-1-160) federal or state law, or under foreign law.

Also posted in Section 1.103, Settlement | Comments closed

S 01.104

Comments are closed.

Also posted in Section 1.104, Settlement | Comments closed

S 01.105

Comments are closed.

Plan of Allocation” means the Plan of Allocation attached hereto as Attachment C (Plan of Allocation).

Also posted in Section 1.105, Settlement | Comments closed

S 01.106

Comments are closed.

Preview Uses” means uses that may display Protected material from a Book to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display or Front Matter Display, as specified in and subject to Section 4.3 (Preview Uses).

Also posted in Section 1.106, Settlement | Comments closed

S 01.107

Comments are closed.

Price Change Cut Off Date” has the meaning set forth in Section 4.1(a)(viii)(2) (Registry Proposed Adjustments).

Also posted in Section 1.107, Settlement | Comments closed

S 01.108

Comments are closed.

Pricing Algorithm” has the meaning set forth in Section 4.2(b)(i)(2) (Settlement Controlled Price).

Also posted in Section 1.108, Settlement | Comments closed

S 01.109

Comments are closed.

Pricing Bin” has the meaning set forth in Section 4.2(c)(i) (Pricing Bins).

Also posted in Section 1.109, Settlement | Comments closed

S 01.110

Comments are closed.

Pricing Strategy ” has the meaning set forth in Section 4.1(a)(vi) (Pricing Strategy).

Also posted in Section 1.110, Settlement | Comments closed

S 01.111

Comments are closed.

Principal Work” means a Book’s principal written work. A Principal Work can be a collective work, such as a collection of short stories or plays. A Book contains only one Principal Work but may contain other text, such as a foreword, afterword and annotations. A foreign language translation or an abridged version of a Principal Work is a different Principal Work. Two (2) or more Books that contain the same Principal Work but that each contains different or additional Protected Expression are considered to be different Books. By way of example, two (2) Books that have the same Principal Work (e.g., The Old Man and the SeaTo Kill a Mockingbird) but have different forewords or additional annotations (e.g., the Hueber VerlagJ.B. Lippincott and the ScribnerHarper Collins editions) are different Books under this Amended Settlement Agreement. A hard cover Book and a soft cover Book may have the same Principal Work, but are considered different Books under this Amended Settlement Agreement (even if they contain no additional matter) if the hard cover Book and the soft cover Book have different ISBNs.

Also posted in Section 1.111, Settlement | Comments closed

S 01.112

Comments are closed.

Print Disability” means any condition in which a user is unable to read or use standard printed material due to blindness, visual disability, physical limitations, organic dysfunction, or dyslexia.

Also posted in Section 1.112, Settlement | Comments closed

S 01.113

Comments are closed.

Prohibited Access” means reproduction or display by a Fully Participating Library or Host Site of any Digital Copy of a Book that is prohibited by the applicable Library-Registry Agreement or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.

Also posted in Section 1.113, Settlement | Comments closed

S 01.114

Comments are closed.

Protected,” when used in connection with “works,” “material,” “Expression,” or “content” means works, material, Expression or content as to which a Person has a Copyright Interest under Section 106 of the Copyright Act, without giving effect to Sections 107 through 122 of the Copyright Act.

Also posted in Section 1.114, Settlement | Comments closed

S 01.115

Comments are closed.

Public Access Service” means a service provided by Google to each Public Library and each not-for-profit Higher Education Institution that allows users to search and view the entire then-current Institutional Subscription Database, as specifiedin and subject to Section 4.8 (Public Access Service).

Also posted in Section 1.115, Settlement | Comments closed

S 01.116

Comments are closed.

Public Domain Book” means a written or printed work that would be a “Book” but for the work being in the public domain under the Copyright Act in the United States, without regard to whether such work contains an Insert; provided, however, that, if the work is a “United States work” as defined in 17 U.S.C. § 101, it need not have been registered with the United States Copyright Office to be considered to be a Public Domain Book.

Also posted in Section 1.116, Settlement | Comments closed

S 01.117

Comments are closed.

Public Domain Funds” has the meaning set forth in Section 6.3(b) (Public Domain Funds).

Also posted in Section 1.117, Settlement | Comments closed

S 01.118

Comments are closed.

Public Domain Library” means a library physically located in the United States and organized as or within a not-for-profit or government entity that (a) will not provide materials to Google for Digitization when it knows that those materials are Books, (b) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by [Google](http://www.thepublicindex.org/archives/category/settlement/s-1/s-1-59( to such library or that such library receives from Google in the future, and (c) enters into a Library-Registry (Public Domain) Agreement.

Also posted in Section 1.118, Settlement | Comments closed

S 01.119

Comments are closed.

Public Library” means a library that (a) is accessible by the public, (b) is, or is part of, a not-for-profit or government-funded institution other than a not-for-profit or government-funded institution that is classified under the Carnegie Classification of Institutions of Higher Education, and (c) allows patrons to take books and other materials off the premises but may also have non-circulating reference collections or provide other library services; however, “Public Library” does not include any library primarily funded or managed by the federal government or an agency thereof.

Also posted in Section 1.119, Settlement | Comments closed

S 01.120

Comments are closed.

Publisher Sub-Class” means members of the Amended Settlement Class that are (a) companies that publish books, and their exclusive licensees, successors and assignees, and (b) companies that publish Periodicals and have a Copyright Interest in one or more Inserts, and their exclusive licensees, successors, and assignees.

Also posted in Section 1.120, Settlement | Comments closed

S 01.121

Comments are closed.

Qualified User” means a Person who (a) wishes to conduct Non- Consumptive Research, (b) is (i) affiliated with a Fully Participating Library or a Cooperating Library or (ii) a suitably qualified individual (1) who has the resources to perform such Non-Consumptive Research, (2) who has an affiliation described below, (3) who is pre-registered by a Fully Participating Library or a Cooperating Library (i.e., registered prior to conducting Non-Consumptive Research), and (4) for whose use of the Research Corpus such Fully Participating Library or Cooperating Library takes responsibility, and (c) is bound by an agreement described in Section 7.2(d)(xi)(2) (Research Agenda). A for-profit entity may only be a “Qualified User” if both the Registry and Google give their prior written consent. Except as set forth in the preceding sentence, a Qualified User must have an affiliation with one of the following:

Also posted in Section 1.121, Settlement | Comments closed

S 01.121.1

Comments are closed.

(a) an accredited United States two (2)- or four (4)-year college or university;

Also posted in Section 1.121, Section 1.121(a), Settlement | Comments closed

S 01.121.2

Comments are closed.

(b) a United States not-for-profit research organization, such as a museum, observatory or research lab;

Also posted in Section 1.121, Section 1.121(b), Settlement | Comments closed

S 01.121.3

Comments are closed.

(c) a United States governmental agency (federal, state or local); or

Also posted in Section 1.121, Section 1.121(c), Settlement | Comments closed

S 01.121.4

Comments are closed.

(d) to the extent that an individual does not come within clauses (a) through (c) above in this Section 1.1211.123 (Qualified User), an individual may become a “Qualified User” by demonstrating to a Fully Participating Library or a Cooperating Library that he or she (directly or through the entities with which he or she is affiliated) has the necessary capability and resources to conduct Non-Consumptive Research, provided that such individual (or the entities with which he or she is affiliated) may be required by the Registry to enter into other terms and conditions with respect to such Non-Consumptive Research and the commercial exploitation of any of the results thereof consistent with the restrictions set forth in this Amended Settlement Agreement.

Also posted in Section 1.121, Section 1.121(d), Settlement | Comments closed

S 01.122

2 responses to “S 01.122”

  1. james says:

    “Registered” does not have its usual meaning in copyright law: “registered with the Copyright Office.”

  2. James Grimmelman says:

    But note that “Rightsholder” requires “registered with the Copyright Office” for United States works (though not for foreign ones).

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

Also posted in Section 1.122, Settlement | Comments closed

S 01.123

Comments are closed.

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

Also posted in Section 1.123, Settlement | Comments closed

S 01.124

Comments are closed.

Removed” means, with respect to a Book that is removed pursuant to Section 3.5(a) (Right to Remove) and subject to Section 3.5(b)(vi) (Continuing Obligations), that Digital Copies of such Book are not accessible (including through the Research Corpus), other than on back-up tapes or other electronic back-up storage media. ,“Remove” and “Removal” have corresponding meanings.

Also posted in Section 1.124, Settlement | Comments closed

S 01.125

3 responses to “S 01.125”

  1. Charles Petit, a US lawyer, has suggested on his site Scrivener’s Error that these plaintiffs fail tests both of typicality and commonality of interests when considered as representatives of the settlement sub-class ‘author’. (I believe I am summarizing his remarks accurately.) Following on from his comments, I note that three are writers of popular non-fiction, one is a children’s author, and one is a poet and literary critic. Petit gives a longish list of categories of author not represented among the group. I note additionally that every one of the five plaintiffs was born in the USA, works in the USA, and has published mainly or exclusively in the USA. There is no representative here of authors from outside the USA, though the ‘settlement class’ comprehends a very large number of non-US authors.

  2. The plaintiffs, if pressed, would likely argue that having the Authors Guild and AAP in the room expanded the range of authors and publishers represented. One’s view of that claim likely depends on one’s view of the AG and AAP.

    Also, the current draft of our amicus brief questions the adequacy of the named plaintiffs as representatives of the subclass of orphan works owners.

  3. Gillian Spraggs says:

    The plaintiffs, if pressed, would likely argue that having the Authors Guild and AAP in the room expanded the range of authors and publishers represented.

    I have commented here on the fact that only authors who have been published ‘by an established American publisher’ are eligible for membership of the Authors Guild: this excludes the very large numbers of foreign authors, myself included, who have never published a book in the USA, yet who find ourselves made members of the settlement class.

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

Also posted in Section 1.125, Settlement | Comments closed

S 01.126

Comments are closed.

Also posted in Section 1.126, Settlement | Comments closed

S 01.127

Comments are closed.

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

Also posted in Section 1.127, Settlement | Comments closed

S 01.128

Comments are closed.

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

Also posted in Section 1.128, Settlement | Comments closed

S 01.129

Comments are closed.

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

Also posted in Section 1.129, Settlement | Comments closed

S 01.130

Comments are closed.

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

Also posted in Section 1.130, Settlement | Comments closed

S 01.131

Comments are closed.

Revenue ModelModels” means Institutional Subscriptions, Consumer Purchases,Advertising Uses, Public Access Service and any other revenue models agreed between the Registry and Google pursuant to Section 4.7 ( (NewAdditional Revenue Models).

Also posted in Section 1.131, Settlement | Comments closed

S 01.132

Comments are closed.

Rightsholder” means a member of the Amended Settlement Class who does not opt out of the Settlement by the Supplemental Opt-Out Deadline.

Also posted in Section 1.132, Settlement | Comments closed

S 01.133

Comments are closed.

Rightsholder Releasors” has the meaning set forth in Section 10.1(m) (Rightsholder Releasors).

Also posted in Section 1.133, Settlement | Comments closed

S 01.134

Comments are closed.

Security Implementation Plan” means an implementation plan describingthe processes and procedures that Google, a Fully Participating Library, or a Host Site, as the case may be, will employ in order to comply with the Security Standard.

Also posted in Section 1.134, Settlement | Comments closed

S 01.135

Comments are closed.

Security Representatives” has the meaning set forth in Section 8.2(b) (Changes to Security Standard).

Also posted in Section 1.135, Settlement | Comments closed

S 01.136

Comments are closed.

Security Standard” means the security standard set forth in Attachment D (Security Standard).

Also posted in Section 1.136, Settlement | Comments closed

S 01.137

Comments are closed.

Settlement” means the settlement of the Action as set forth in this Settlement Agreement.

Also posted in Section 1.137, Settlement | Comments closed

S 01.138

Comments are closed.

Settlement Administration Program” means the Settlement administration program described in Article XIII (Settlement Administration Program).

Also posted in Section 1.138, Settlement | Comments closed

S 01.139

Comments are closed.

Settlement Administrator” means Rust Consulting, Inc.

Also posted in Section 1.139, Settlement | Comments closed

S 01.140

Comments are closed.

Settlement Agreement” means this agreement and all of its attachments, as each may be amended from time to time pursuant to Section 17.27 (Amendments). “Settlement Agreement” means the original Settlement Agreement and all of its attachments, as filed with the Court on October 28, 2008.

Also posted in Section 1.140, Settlement | Comments closed

S 01.141

Comments are closed.

Settlement Agreement Date” means the date set forth at the end of this Settlement Agreement.

Also posted in Section 1.141, Settlement | Comments closed

S 01.142

Comments are closed.

Settlement Class ” means all Persons that, as of the Notice Commencement Date, have a Copyright Interest in one or more Books or Inserts. All Settlement Class members are either members of the Author Sub-Class or the Publisher Sub-Class, or both. Excluded from the Settlement Class are Google, the members of Google’s Board of Directors and its executive officers.

Also posted in Section 1.142, Settlement | Comments closed

S 01.143

Comments are closed.

Settlement Controlled Price” has the meaning set forth in Section 4.2(b)(i)(2) (Settlement Controlled Price).

Also posted in Section 1.143, Settlement | Comments closed

S 01.144

Comments are closed.

Settlement Discussions Confidentiality Agreement ” means the Settlement Discussions Confidentiality Agreement dated August 18, 2006 between Google andcertain representatives of Plaintiffs.

Also posted in Section 1.144, Settlement | Comments closed

S 01.145

Comments are closed.

Settlement Fund ” means the Initial Settlement Deposit, the Final Settlement Deposit and the Supplemental Deposit, and all interest accrued thereon. The Settlement Fund will be held and administered in an account at the Depository Bank.

Also posted in Section 1.145, Settlement | Comments closed

S 01.146

Comments are closed.

Settlement Website” has the meaning set forth in Article XII (Class Notice Program).

Also posted in Section 1.146, Settlement | Comments closed

S 01.147

Comments are closed.

Snippet Display” means uses that display to users of Google Products and Services up to three (3) “snippets” (each snippet being about three (3) to four (4) lines of text) per search term per user.

Also posted in Section 1.147, Settlement | Comments closed

S 01.148

Comments are closed.

Standard Preview” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).

Also posted in Section 1.148, Settlement | Comments closed

S 01.149

Comments are closed.

Specified Price” has the meaning set forth in Section 4.2(b)(i)(1) (Specified Price).

Also posted in Section 1.149, Settlement | Comments closed

S 01.150

Comments are closed.

Standard Revenue Split for Advertising” has the meaning set forth in Section 4.5(a)(ii) (Net Advertising Revenues).

Also posted in Section 1.150, Settlement | Comments closed

S 01.151

Comments are closed.

Standard Revenue Split for Purchases” has the meaning set forth in Section 4.5(a)(iii) (Net Purchase Revenues).

Also posted in Section 1.151, Settlement | Comments closed

S 01.152

Comments are closed.

Summary Notice” has the meaning set forth in Article XII (Class Notice Program).

Also posted in Section 1.152, Settlement | Comments closed

S 01.152

Comments are closed.

“Standard Revenue Splits” has the meaning set forth in Section 4.5(a)(iii) (Agreed Revenue Splits).

Also posted in Section 1.152, Settlement | Comments closed

S 01.153

Comments are closed.

Supplemental Deposit” has the meaning set forth in Section 5.3(c) (Supplemental Deposit).

Also posted in Section 1.153, Settlement | Comments closed

S 01.154

Comments are closed.

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

Also posted in Section 1.154, Settlement | Comments closed

S 01.155

Comments are closed.

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

Also posted in Section 1.155, Settlement | Comments closed

S 01.155

Comments are closed.

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

Also posted in Section 1.155, Settlement | Comments closed

S 01.156

Comments are closed.

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

Also posted in Section 1.156, Settlement | Comments closed

S 01.156

Comments are closed.

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

Also posted in Section 1.156, Settlement, Uncategorized | Comments closed

S 01.157

Comments are closed.

Unclaimed Funds – Non-Subscription Works Fiduciary” has the meaning set forth in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models). 6.2(b) (Organizational Structure).

Also posted in Section 1.157, Settlement | Comments closed

S 01.158

Comments are closed.

Unclaimed Funds – Subscription” has the meaning set forth in Section 6.3(a)(ii) (Unclaimed Funds-Subscription Revenue Models).

Also posted in Section 1.158, Settlement | Comments closed

S 01.159

Comments are closed.

Unclaimed Fundsmeans has the meaning set forth in Section 6.3(a)(Unclaimed Funds – Non-Subscription and Unclaimed Funds – Subscription).

Also posted in Section 1.159, Settlement | Comments closed

S 01.160

Comments are closed.

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

Also posted in Section 1.160, Settlement | Comments closed