Category Archives: Attachment M

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SETTLEMENT AGREEMENT BETWEEN PUBLISHERS AND GOOGLE

This Settlement Agreement (the “Agreement”) is made as of October 28, 2008 by and among plaintiffs The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc. (collectively, the “Publishers”) and defendant Google Inc. (“Google”) (each, a “Party” and, collectively, the “Parties”).

WHEREAS, on or about October 19, 2005, the Publishers filed a complaint against Google for copyright infringement in the United States District Court for the Southern District of New York captioned The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (JES) (the “Action”) arising out of, inter alia, Google’s unauthorized reproduction of books in which the Publishers own copyright interests; and

WHEREAS, Google raised various defenses and denials in response to the allegations in the Action; and

WHEREAS, the Publishers also are named as representative plaintiffs in an amended class action complaint against Google for copyright infringement that is being filed contemporaneously herewith in the United States District Court for the Southern District of New York captioned The Authors Guild v. Google Inc., 05 Civ 8136 (JES) (the “Class Action”) and is brought on behalf of copyright owners in books reproduced by Google without authorization; and

WHEREAS, Google raised various defenses and denials in response to the allegations in the Class Action; and

WHEREAS, the Parties, and other plaintiffs in the Class Action, entered into a settlement agreement (the “Class Action Settlement”), which is being filed contemporaneously herewith in the United States District Court for the Southern District of New York, to settle the claims asserted in the Class Action; and

WHEREAS, in order to avoid the costs and uncertainties of litigation, the Parties desire to settle all claims asserted in the Action;

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the Parties agree as follows:

Posted in Attachment M | Comments closed

SM 01

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Google shall make a settlement payment to the Association of American Publishers, Inc. (the “AAP”) in the total amount of fifteen million five hundred thousand United States dollars (U.S. $15,500,000) (the “AAP Payment”), to settle the claims in the Action, to reimburse the AAP for attorneys’ fees and costs and to establish a fund to serve the interests of both publishers and authors. Within ten (10) business days after the Effective Date (as defined in the Class Action Settlement), Google shall make the AAP Payment by wire transfer to the AAP, as the AAP shall direct.

Also posted in Section M1, Settlement | Comments closed

SM 02

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None of the Publishers are entitled to any part of the AAP Payment and the AAP shall pay no part of the AAP Payment to any of the Publishers.

Also posted in Section M2, Settlement | Comments closed

SM 03

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The Publishers’ releases, as set forth in the Class Action Settlement, shall be effective on the Effective Date, provided that Google pays, and the AAP receives, the AAP Payment in accordance with the terms herein.

Also posted in Section M3, Settlement | Comments closed

SM 04

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Notwithstanding anything in this Agreement, the Publishers have and retain all rights that they have under the Class Action Settlement.

Also posted in Section M4, Settlement | Comments closed

SM 05

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The Parties shall file with the Court, within five (5) business days after the AAP’s receipt of the AAP Payment, a Stipulation and Order of Dismissal with Prejudice in the form attached hereto as Exhibit A.

Also posted in Section M5, Settlement | Comments closed

SM 06

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The Parties agree to keep confidential all information received by one Party from any other Party during the course of discovery in the Action, and shall make no disclosure thereof to any third party except as provided in this Agreement.

Also posted in Section M6, Settlement | Comments closed

SM 07

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This Agreement supersedes all previous arrangements or understandings, whether written or oral, and contains the entire agreement of the Parties with respect to the manner in which the Action will be dismissed.

Also posted in Section M7, Settlement | Comments closed

SM 08

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This Agreement may be modified, varied or otherwise amended only by a writing, of even or subsequent date hereto, signed by the Parties.

Also posted in Section M8, Settlement | Comments closed

SM 09

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This Agreement and the settlement incorporated herein is not and shall not be construed as an admission of liability by any Party.

Also posted in Section M9, Settlement | Comments closed

SM 10

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This Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against any Party.

Also posted in Section M10, Settlement | Comments closed

SM 11

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Each individual signing this Agreement warrants and represents that s/he is duly authorized to execute this Agreement on behalf of the Party for which s/he signs.

Also posted in Section M11, Settlement | Comments closed

SM 12

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The Parties agree that the Court shall retain jurisdiction over any dispute arising from or relating to this Agreement.

Also posted in Section M12, Settlement | Comments closed

SM 13

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This Agreement shall be governed by the laws of the State of New York, exclusive of its conflict of laws principles.

Also posted in Section M13, Settlement | Comments closed

SM 14

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This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement.

Also posted in Section M14, Settlement | Comments closed

SM 15

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Executed originals of this Agreement may be delivered by facsimile or by email. Faxed signatures or signatures transmitted by email shall be considered originals.

Also posted in Section M15, Settlement | Comments closed