Category Archives: Article 10

S 10

Comments are closed.

Article 10 – Releases

Also posted in Settlement | Comments closed

S 10.1

Comments are closed.

Definitions.

Also posted in Section 10.1, Settlement | Comments closed

S 10.1.01

Comments are closed.

(a) “Claim” means any claim (including any claim relating to any right, contract, obligation, debt, dues, sum of money, or attorneys’ fees), action, cause of action, proceeding, adjustment, execution, offset, judgment, suit, accounting, reckoning, bond, bill, trespass, damage, demand (whether written or oral), liability, controversy, expense, and loss whatsoever, whether arising in law or in equity, based on United States federal, state, territorial or common law, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, existing now or arising in the future.

Also posted in Section 10.1, Section 10.1(a), Settlement | Comments closed

S 10.1.02

Comments are closed.

(b) “Cooperating Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademarkinfringement, or moral rights violation) against each Cooperating Library Releasee that arises out of, with respect to Books and Inserts held by such Cooperating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Cooperating Library Releasee’s provision of Books and Inserts (or Books and Inserts in a form Digitized by such Cooperating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Cooperating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or permitted by the applicable Library-Registry (Cooperating) Agreement, as if the Cooperating Library had been a Cooperating Library at the time of such use, and (v) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Cooperating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this AmendedSettlement Agreement or such Library-Registry (Cooperating) Agreement.

Also posted in Section 10.1, Section 10.1(b), Settlement | Comments closed

S 10.1.03

Comments are closed.

(c) “Cooperating Library Releasees” means each Cooperating Library and all of such Cooperating Library’s past, present, and future parents, predecessors,subsidiaries, affiliates, and divisions, all of its and their respective contractors, andlicensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, students, members, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Section 10.1, Section 10.1(c), Settlement | Comments closed

S 10.1.04

Comments are closed.

(d) “Fully Participating Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Fully Participating Library Releasee that arises out of, with respect to Books and Inserts held by such Fully Participating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Fully Participating Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’suse in Google Products and Services, (iii) such Fully Participating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry (Fully Participating) Agreement, as if the Fully Participating Library had been a Fully Participating Library at the time of such use, and (v) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after theEffective Date, any act or omission authorized by this AmendedSettlement Agreement or the Library-Registry (Fully Participating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry (Fully Participating) Agreement.

Also posted in Section 10.1, Section 10.1(d), Settlement | Comments closed

S 10.1.05

Comments are closed.

(e) “Fully Participating Library Releasees” means each Fully Participating Library and all of such Fully Participating Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, students, members, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Section 10.1, Section 10.1(e), Settlement | Comments closed

S 10.1.06

Comments are closed.

(f) “Google Released Claims” means each and every Claim of everyRightsholder that has been or could have been asserted in the Action against any Google Releasee (including all Claims of copyright infringement, trademark infringement, or moral rights violation) that arises out of: (A) any of the following actions taken on or before the Effective Date, (i) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s, Public Domain Library Releasee’s or Other Library Releasee’s provision of Books and Inserts (or the provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Library Releasee or Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of Books and Inserts for Google’s use in Google Products and Services other than such uses that are based on authorizations granted to Google under separateagreements entered into directly with the Rightsholder, (iii) the distribution to each Fully Participating Library, Cooperating Library and Public Domain Library of Digital Copies of Books and Inserts held by such library, (iv) any use by a Fully Participating Library, a Cooperating Library or a Public Domain Library of such Digital Copies, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry Agreement, as if such Fully Participating Library, Cooperating Library or Public Domain Library had been a Fully Participating Library, Cooperating Library or Public Domain Library at the time of such use, and (v) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s or Public Domain Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after theEffective Date, any act or omission authorized by this Amended Settlement Agreement, or a Library-Registry Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry Agreement; and (C) on or before sixty (60) days after the Settlement Agreement Date,December 27, 2008 the distribution to each Other Library of Digital Copies of Books and Inserts held by such library.

Also posted in Section 10.1, Section 10.1(f), Settlement | Comments closed

S 10.1.07

Comments are closed.

(g) “Google Releasees” means Google and all of its past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, owners, partners, governors, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives, provided, however, that the Google Releasees do not include any library or any other Person providing a Book or Insert to Google for purposes of Digitization by Google or providing Books and Inserts to Google in a Digitized form, except to the extent such library acts as a contractor to Google as contemplated by Section 3.1 (Digitization, Identification and Use of Books).

Also posted in Section 10.1, Section 10.1(g), Settlement | Comments closed

S 10.1.08

Comments are closed.

(h) “Other Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Other Library Releasee that arises out of, with respect to Books and Inserts held by such Other Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Other Library Releasee’s provision of such Books and Inserts (or Books and Inserts in a form Digitized by such Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, and (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Insertsfor use in Google Products and Services; and (B) on or before sixty (60) days after the Settlement Agreement Date,December 27, 2008 such Other Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts (but, for purposes of clarification, not such Other Library Releasee’s use of such Digital Copies).

Also posted in Section 10.1, Section 10.1(h), Settlement | Comments closed

S 10.1.09

Comments are closed.

(i) “Other Library Releasees” means each Other Library, and all of such Other Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, members, students, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Section 10.1, Section 10.1(i), Settlement | Comments closed

S 10.1.10

Comments are closed.

(j) “Public Domain Library Released Claims” means each and every Claim ofevery Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Public Domain Library Releasee that arises out of, with respect to Books and Inserts held by such Public Domain Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Public Domain Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Public Domain Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products andServices, (iii) such Public Domain Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, and (iv) such Public Domain Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Public Domain) Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this AmendedSettlement Agreement or such Library-Registry(Public Domain) Agreement.

Also posted in Section 10.1, Section 10.1(j), Settlement | Comments closed

S 10.1.11

Comments are closed.

(k) “Public Domain Library Releasees” means each Public Domain Libraryand all of such Public Domain Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, members, students, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Section 10.1, Section 10.1(k), Settlement | Comments closed

S 10.1.12

Comments are closed.

(l) “Releases” means the releases set forth in Section 10.2 (Releases) by all of the Rightsholder Releasors and by all of the Google Releasees.

Also posted in Section 10.1, Section 10.1(l), Settlement | Comments closed

S 10.1.13

Comments are closed.

(m) “Rightsholder Releasors” means Plaintiffs, any and all Rightsholders, and each Plaintiff’s and Rightsholder’s heirs, executors, administrators, beneficiaries, predecessors, successors, assigns, employees, and agents, any person claiming by or through any Rightsholder and any Person representing any or all Plaintiffs and/or Rightsholders.

Also posted in Section 10.1, Section 10.1(m), Settlement | Comments closed

S 10.1.14

Comments are closed.

(n) Scope of Release. Where, in this Article X (Releases), Claims are released, such release includes the reproduction, distribution, transmission, display, and preparation of derivative works of such Books or Inserts undertaken for the purpose of, and only to the extent reasonably required for, making the released use, by whatever means and technology.

Also posted in Section 10.1, Section 10.1(n), Settlement | Comments closed

S 10.2

Comments are closed.

Releases.

Also posted in Section 10.2, Settlement | Comments closed

S 10.2.1

Comments are closed.

(a) Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees. Without further action by anyone, as of the Effective Date, the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged (i) the Google Released Claims against each and every one of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (ii) the Fully Participating Library Released Claims against each and every one of the Fully Participating Library Releasees, (iii) the Cooperating Library Released Claims) against each and every one of the Cooperating Library Releasees, (iv)the Public Domain Library Released Claims against each and every one of the Public Domain Library Releasees, (v) the Other Library Released Claims) against each and every one of the Other Library Releasees, provided that no Other Library Released Claims) are released, relinquished, settled or discharged against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, (vi) all Claims against the Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees, Class Counsel and Plaintiffs that relate in any way to the commencement, prosecution, defense or settlement of the Action or to the negotiation or execution of the original Settlement Agreement orthis Amended Settlement Agreement,or theLibrary-Registry Agreements or the Supplemental Agreement Regarding Right toTerminate, and (vii) any and all Claims for attorneys’ fees, costs or disbursements incurred by Class Counsel or other counsel representing Plaintiffs in connection with or related in any manner to the Action, the settlement of the Action, including the negotiation and execution of this the original Settlement Agreement, this Amended Settlement Agreement,or the Author-Publisher Procedures, the Library-Registry Agreements or the Supplemental Agreement Regarding Right to Terminate, or the administration of the Action provided that in the case of this clause (vii) Google meets its payment obligations under Section 5.5 (Attorneys’ Fees).

Also posted in Section 10.2, Section 10.2(a), Settlement | Comments closed

S 10.2.2

Comments are closed.

(b) Limitations on Releases. The Releases are subject to the following: (i) nothing in this Amended Settlement Agreement releases or adversely affects any Claims of any Amended Settlement Class members who opted out of the original Settlement Agreement by September 4, 2009 or who opt out of the Amended Settlement by the Opt-Out Deadline, (ii) no [Claims]theAgreement between the Amended Settlement Agreement Date and the Supplemental (http://www.thepublicindex.org/archives/category/settlement/s-10/s-10-1/s-10-1-a) are released with respect to any Digitization or any other form of copying or use of Books or Inserts outside the United States (e.g., making a copy of, or using, a Book in Finland), (iii) no Claims are released with respect to any acts or omissions after the Settlement Agreement DateOctober 28, 2008 that, if occurring after the Effective Date, would not beauthorized by this Amended Settlement Agreement, (iv) no Claims are released with respect to breaches of this Amended Settlement Agreement after the Effective Date, and (v) no Claims are released with respect to any acts of copying, transmission or distribution of a Book or Insert that Google undertakes in response to a search or other request of a user outside of the United States that results in displaying parts or all of such Book or Insert in such user’s jurisdiction, except if such display is lawful in such jurisdiction or Google has the appropriate permission for such display in such jurisdiction. Google agrees that, in asserting or responding to any legal claim outside the United States for copyright infringement arising from any use of Books or Inserts outside the United States, it will not in any way assert, including by way of defense, that, based on the fact that this AmendedSettlement Agreement or the Final Judgment and Order of Dismissal authorizes, or releases Claims relating to, the making of copies or uses of Books and Inserts in the United States, either applicable non-United States law or a Rightsholder authorized such use of Books or Inserts outside the United States.

Also posted in Section 10.2, Section 10.2(b), Settlement | Comments closed

S 10.2.3

Comments are closed.

(c) Effect of Dismissal. The Final Judgment and Order of Dismissal shall have the effect of a dismissal with prejudice of all Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims and Other Library Released Claims as though each Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Releasee and Other Library Releasee had been named a defendant in the Action, and the Final Judgment and Order of Dismissal shall bar all such Fully Participating Library Released Claims, Cooperating Library Released Claims), Public Domain Library Released Claims and Other Library Released Claims) by any Rightsholder Releasor, provided that the Final Judgment and Order of Dismissal shall have no such effect with respect to, and shall not bar, any Other LibraryReleased Claims against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy.

Also posted in Section 10.2, Section 10.2(c), Settlement | Comments closed

S 10.2.4

Comments are closed.

(d) Bar Order. The Final Judgment and Order of Dismissal shall forever bar (a) all Rightsholder Releasors from instituting, maintaining, prosecuting, assigning or collecting on any and all (i) Claims against any Google Releasee, Fully Participating Library Releasee, Cooperating Library Releasee, and Public Domain Library Releasee that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or to the negotiation or execution of thisthe original Settlement Agreement, or this Amended Settlement Agreement or the Library-Registry Agreements, (ii) Google Released Claims against any of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (iii) Fully Participating Library Released Claims against any of the Fully Participating Library Releasees, (iv) the Cooperating Library Released Claims) against any of the Cooperating Library Releasees, (v) the Public Domain Library Released Claims against any of the Public Domain LibraryReleasees, and (vi) Other Library Released Claims) against any of the Other Library Releasees, provided that no Rightsholder Releasor is barred from instituting, maintaining, prosecuting, assigning or collecting on any Other Library Released Claim against an Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, including without limitation, by participating in, or recovering as a result of, any class or representative action, whether under United States federal or state law, in which any such Google Released Claims, Fully Participating Library Released Claims, Cooperating Library Released Claims), Public Domain Library Released Claims, or Other Library Released Claims) have been or may be brought, and (b) all Google Releasees, all Cooperating Library Releasees, all Fully Participating Library Releasees, all Public Domain Library Releasees and all Other Library Releasees from instituting, maintaining, prosecuting, assigning or collecting on, any and all Claims against any Rightsholder Releasor or Class Counsel that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or the negotiation and execution of thisthe original Settlement Agreement, or this Amended Settlement Agreement or the Library-Registry Agreements.

Also posted in Section 10.2, Section 10.2(d), Settlement | Comments closed

S 10.2.5

Comments are closed.

(e) Release of Rightsholder Releasors and Class Counsel. Without further action by anyone, as of the Effective Date, each of the Google Releasees, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation and execution of this Settlement Agreement.

Also posted in Section 10.2, Section 10.2(e), Settlement | Comments closed

S 10.2.6

Comments are closed.

(f) Mutual Releases by Insert/Book Rightsholder Releasors. Without further action by anyone, as of the Effective Date, each of the Google Releasees, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation and execution of this Settlement Agreement. Without further action by anyone, as of the Effective Date, each of the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged Claims arising out of the inclusion, removal or exclusion of a Book or an Insert in or from Google Products and Services by (i) any Rightsholder Releasor that has a Copyright Interest in an Insert against each and every Rightsholder Releasor that has a Copyright Interest in a Book that contains such Insert and (ii) any Rightsholder Releasor that has a Copyright Interest in a Book against each and every Rightsholder Releasor that has a Copyright Interest in an Insert contained in such Book.

Also posted in Section 10.2, Section 10.2(f), Settlement | Comments closed

S 10.2.7

Comments are closed.

(g) Waiver of Section 1542. With respect to any and all of the Releases, upon the Effective Date and without further action, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, all Rightsholder Releasors and Google Releasees shall be deemed to have, and by operation of the Final Judgment and Order of Dismissal shall have, fully, finally, and forever expressly waived and relinquished, to the fullest extent permitted by law, any and all provisions, rights, and benefits of Section 1542 of the California Civil Code and any and all provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation orprinciple of common law that is similar, comparable, equivalent or identical to Section 1542 of the California Civil Code, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Each Rightsholder Releasor and Google Releasee may hereafter discover factsother than or different from those that he, she, or it knows or believes to be true withrespect to the Claims released by the Releases, but, notwithstanding Section 1542 and any similar provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation or common law principle, each such Person hereby expressly waives and fully, finally, and forever settles and releases, upon the Effective Date, any known or unknown, suspected or unsuspected, contingent or non-contingent Claim that isreleased by the Releases, without regard to the subsequent discovery or existence of such different or additional facts.

Also posted in Section 10.2, Section 10.2(g), Settlement | Comments closed

S 10.2.8

Comments are closed.

(h) Foreign Claims. No Rightsholder releases any Claim for the reproduction, distribution, transmission, display, adaptation or preparation of derivative works of any Book or Insert in any jurisdiction outside the United States.

Also posted in Section 10.2, Section 10.2(h), Settlement | Comments closed