Category Archives: Article 9

Dispute Resolution

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Article 9 – Dispute Resolution

Also posted in Settlement | Comments closed

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Arbitration of Disputes and Exceptions

Also posted in Section 9.1, Settlement | Comments closed

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(a) General Rules. Unless otherwise set forth in this Section 9.1 (Arbitration of Disputes and Exceptions), all disputes between and among Google, Rightsholders, Claimants, the Registry and Participating Libraries arising out of this Amended Settlement Agreement, and disputes pursuant to Section 13.2(d) (Claims) for Content that is Neither a Book nor an Insert), shall be subject to this Article IX (Dispute Resolution), including disputes involving Claimants and Rightsholders of Inserts; provided that disputes relating to Books between member(s) of the Author Sub-Class, on the one hand, and member(s) of the Publisher Sub-Class, on the other hand, shall be subject to this Article IX (Dispute Resolution) only to theextent provided, in the Author-Publisher Procedures, and disputes between and among members of the Publisher Sub-Class relating to Books shall not be subject to this Article IX (Dispute Resolution) unless otherwise agreed between such members.; and, provided further, that with respect to any dispute between or among Rightsholders and Claimants, the parties to such dispute may elect to resolve such dispute in court or by such other dispute resolution procedure as they may agree.

Also posted in Section 9.1, Settlement | Comments closed

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(b) Exceptions. This Article IX (Dispute Resolution) shall not apply to disputes regarding:

Also posted in Section 9.1, Section 9.1(b), Settlement | Comments closed

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(i) Breaches of this Amended Settlement Agreement that occur prior to the Effective Date;

Also posted in Section 9.1, Section 9.1(b)(i), Settlement | Comments closed

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(ii) Google’s obligation to provide Digital Copies to an Additional Contemplated Rightsholder Services Provider pursuant to Section 3.7(c) (Additional Contemplated Rightsholder Services Provider);

Also posted in Section 9.1, Section 9.1(b)(ii), Settlement | Comments closed

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(iii) Section 4.7 (NewAdditional/ Revenue Models);

Also posted in Section 9.1, Section 9.1(b)(iii), Settlement | Comments closed

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(iv) Section 7.2(a)(iv) (LimitationLimitations);

Also posted in Section 9.1, Section 9.1(b), Settlement | Comments closed

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(v) Google’s obligation not to make certain assertions in any proceeding outside the United States pursuant to the last sentence of Section 10.2(b) (Limitations on Releases); or

Also posted in Section 9.1, Section 9.1(b), Section 9.1(b)(v), Settlement | Comments closed

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(vi) Section 17.19 (Destruction).

Also posted in Section 9.1, Section 9.1(b), Section 9.1(b)(vi), Settlement | Comments closed

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Executive Escalation. With respect to all disputes subject to this Article IX (Dispute Resolution), Google, any Plaintiff, any Rightsholder, any Claimant, the Registry, any Fully Participating Library, any Cooperating Library, and/or any Host Site, as applicable, shall immediately submit such disputes to a contact provided by each party to the dispute (“Contact”) for resolution. For thirty (30) days after the submission, or such other period of time as the parties to the dispute may mutually agree (the “Resolution Period”), the Contacts shall meet in person or by telephone and attempt to resolve such dispute. The Contacts must be personnel who have the proper authorizations, from each of their respective parties, to resolve the dispute in a final and binding fashion. The Contact for Google is its General Counsel, or his or her designee. The Registry will appoint a Contact. Any party other than Google and the Registry that is subject to this Article IX (Dispute Resolution) must identify a Contact at the time that a dispute involving such party is first raised or within ten (10) Business Days of receiving notice of a dispute.

Also posted in Section 9.2 | Comments closed

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Arbitration

Also posted in Section 9.3, Settlement | Comments closed

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(a) AAA Arbitration. With respect to all disputes subject to this Article IX (Dispute Resolution) that have not been resolved within the Resolution Period, each of the parties to the dispute shall compile a specific list of the matters relating to the dispute to which it believes the parties to the dispute have not reached agreement, in each case setting forth its respective position in as succinct a manner as reasonably possible (collectively, the “Matters in Dispute”). The parties to the dispute shall, upon expiration of the Resolution Period, agree upon and appoint one or more arbitrators from the pool of potential arbitrators selected in accordance with Section 9.3(c) (Pool of Potential Arbitrators). The selected arbitrator(s) (the “Arbitrator”) shall decide the Matters in Dispute, and only the Matters in Dispute. If the disputing parties fail to select the Arbitrator within fifteen (15) days after the expiration of the Resolution Period, either party may immediately file a petition for arbitration before the American Arbitration Association (the “AAA”). The place of arbitration shall be New York, New York unless the parties to the dispute agree otherwise or unless a Rightsholder or Claimant who is party to a dispute requests that the arbitration be held by telephone or videoconference in order to save time, travel and other costs. If the AAA ceases to operate in New York, New York, then the Court shall, upon the consent of Google and the Registry, appoint another entity to administer the dispute resolution procedures. The arbitrators shall apply New York law to the merits of any dispute or claim, without reference to rules of conflict of law.

Also posted in Section 9.3, Section 9.3(a), Settlement | Comments closed

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(b) Arbitrator. The Arbitrator shall be drawn from a special pool of arbitrators who will be familiar with the area of the dispute (e.g., the publishing industry, security, the Internet) as well as this Amended Settlement Agreement.

Also posted in Section 9.3, Section 9.3(b), Settlement | Comments closed

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(c) Pool of Potential Arbitrators. Google and the Registry will create the pool of arbitrators in conjunction with the AAA; provided, however, that, for disputes involving any Fully Participating Library, Cooperating Library or Public Domain Library, the arbitrators need not be selected from such pool. The pool will be drawn from one or more of the following:

Also posted in Section 9.3, Section 9.3(c), Settlement | Comments closed

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(i) Current AAA arbitrators;

Also posted in Section 9.3, Section 9.3(c), Section 9.3(c)(i), Settlement | Comments closed

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(ii) Individuals recommended by Google and the Plaintiffs; and

Also posted in Section 9.3, Section 9.3(c), Section 9.3(c)(ii), Settlement | Comments closed

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(iii) Individuals identified through a search in conjunction with (or conducted by) AAA.

Also posted in Section 9.3, Section 9.3(c), Section 9.3(c)(iii), Settlement | Comments closed

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(d) Expedited Procedures. Except for disputes listed in Section 9.3(e) (Other Disputes), all disputes subject to this Article IX (Dispute Resolution) shall be arbitrated before a single Arbitrator under the Expedited Procedures of the AAA Commercial Arbitration Rules; provided, however, that a party may petition the Arbitrator for discovery, if reasonably necessary for resolution of the dispute and the parties may mutually agree on other procedures.

Also posted in Section 9.3(d), Settlement | Comments closed

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(e) Other Disputes. Any disputes arising under the following Sections shall be arbitrated under the AAA Commercial Arbitration Rules, unless the parties agree to the procedures set forth in Section 9.3(d) (Expedited Procedures), and the Arbitrator shall be a panel of three (3) arbitrators:

Also posted in Section 9.3(e), Settlement | Comments closed

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(i) Sections 3.7(a) (Obligation) and (b) (Failure to Provide Contemplated Rightsholder Services);

Also posted in Section 9.03(e)(i), Section 9.3(e), Settlement | Comments closed

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(ii) Section 3.8 (Effect of Other Agreements and Changes in Law);

Also posted in Section 9.03(e)(ii), Section 9.3(e), Settlement | Comments closed

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(iii) Section 4.1 (Institutional Subscriptions);

Also posted in Section 9.3(e), Section 9.3(e)(iii), Settlement | Comments closed

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(iv) Section 4.2 (Consumer Purchases);

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(iv), Settlement | Comments closed

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(v) Section 4.5(b) (Discounting, Special Offers and Subsidies);

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(v), Settlement | Comments closed

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(vi) Section 4.9 (Economic Terms Renegotiation);

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(vi), Settlement | Comments closed

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(vii) Section 6.3 (Unclaimed Funds and Public Domain Funds);

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(vii), Settlement | Comments closed

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(viii) Section 7.2 (Fully Participating Library Uses);

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(viii), Settlement | Comments closed

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(ix) Section 8.2 (Security Standard, Security Implementation Plan and Security Audits); and

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(viii), Settlement | Comments closed

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(x) Any breach of Article VIII (Security and Breach) related to a Security Implementation Plan or claims related to the security of Digital Copies of Books, the Research Corpus or any LDC.

Also posted in Section 9.3, Section 9.3(e), Section 9.3(e)(x), Settlement | Comments closed

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Notice to Rightsholders. The Registry will provide notice to Registered Rightsholders as required pursuant to Section 8.3(d) (Consolidation of Claims) and concerning the disputes identified in Sections 9.3(e)(i)-(vi) (Other Disputes).

Also posted in Section 9.4, Settlement | Comments closed

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Notice to Registry; Consolidation. Notice of all disputes subject to this Article IX (Dispute Resolution) will be provided to the Registry as well as AAA. If the Registry believes that multiple disputes raise common issues, the Registry may request the parties to consolidate them; however, certain disputes are subject to mandatory consolidation pursuant to Section 7.2(f)(i) (Fully Participating Libraries), Section 7.2(f)(ii) (Cooperating Libraries) and Section 8.3(d) (Consolidation of Claims).

Also posted in Section 9.5, Settlement | Comments closed

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Precedential Effect. The AAA or the Registry shall maintain a database of Decisions rendered pursuant to this Article IX (Dispute Resolution) for purposes of this Amended Settlement Agreement only. The Arbitrators may rely on or be guided by such precedent, as appropriate, but stare decisis will not apply. In any dispute between Google and the Registry and/or a Rightsholder subject to this Article IX (Dispute Resolution), however, no such party to such dispute shall seek to admit into evidence, or otherwise refer to, the fact that Google has entered into or concluded any negotiation or arbitration with a Participating Library.

Also posted in Section 9.6, Settlement | Comments closed

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Decision. The Arbitrator shall decide the Matters in Dispute by written opinion with clear and express language (the “Decision”). The Decision shall be final, binding and non appealable, and judgment on the Decision may be entered only in the Court. Upon receipt of the Decision, the parties shall immediately effect the resolution in accordance with the Decision.

Also posted in Section 9.7, Settlement | Comments closed

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Confidentiality. The entire contents of all papers and records related to the arbitration, and, except as provided in Section 8.3(d) (Consolidation of Claims) and Section 9.4 (Notice to Rightsholders) or as agreed by the parties to the arbitration, the fact of the arbitration, shall be deemed to be confidential information of the parties to the arbitration; provided, however, that (a) the Registry may be permitted to disclose the existence and costs of arbitrations to which it is a party in connection with required financial disclosures; and (b) all Registered Rightsholders and parties to an arbitration will have access to all Decisions; provided, further, (i) such Rightsholders and/or parties shall have executed an agreement obligating the Rightsholders and/or parties to use the Decisions only for the prosecution or defense of a claim and not to make the Decisions public; and (ii) names, other personally identifiable information and any confidential information will be redacted from the Decisions before the Decisions are made available to such Rightsholders and/or parties.

Also posted in Section 9.8, Settlement | Comments closed

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Fees and Costs. Any Arbitrator’s fees and any costs payable to the Arbitrator shall be shared equally by the parties to the arbitration, unless otherwise agreed under this Amended Settlement Agreement (including the Author-Publisher Procedures). Each party to the arbitration will bear his, her or its own legal fees and expenses, unless otherwise provided under this Amended Settlement Agreement.

Also posted in Section 9.9, Settlement | Comments closed

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Joinder. Joinder is permissible if required for complete resolution of claim.

Also posted in Section 9.10, Settlement | Comments closed

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Injunctive Relief. If a party would be prejudiced or irreparably harmed by delay (e.g., the party has need for emergency or temporary injunctive relief, which could be in the form of specific performance), a party has repeatedly, willfully or intentionally not complied with its obligations under this Amended Settlement Agreement, or a party is claiming a breach of Section 15.2 (Obligations), the party claiming a breach of this Amended Settlement Agreement may apply to any court of competent jurisdiction (or, if the dispute involves a Fully Participating Library, the Court) for a temporary restraining order, preliminary injunction, other interim or conservatory relief or injunctive relief, as necessary, without breach of this Article IX (Dispute Resolution) and without any abridgment of the powers of the Arbitrator, while simultaneously following the process set forth in Section 9.2 (Executive Escalation) and, if unsuccessful, the arbitration procedure set forth in this Article IX (Dispute Resolution).

Also posted in Section 9.11, Settlement | Comments closed

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Continuing Jurisdiction. This Article IX (Dispute Resolution) is subject to Section 17.23 (Court’s Continuing Jurisdiction).

Also posted in Section 9.12, Settlement | Comments closed