Author Archives: woodfordesq

S 01.156

“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.

Posted in Article 01, Section 1.156, Settlement, Uncategorized | Comments closed

S 01.155

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

Posted in Article 01, Section 1.155, Settlement | Comments closed

S 01.152

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

Posted in Article 01, Section 1.152, Settlement | Comments closed

S 01.044

“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).

Posted in Article 01, Definitions, Section 1.44, Settlement | Comments closed

S 01.013

“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 […]

Posted in Article 01, Section 1.13, Settlement | Comments closed

S 01.012

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

Posted in Article 01, Section 1.12, Settlement | Comments closed

S 01.011

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).

Posted in Article 01, Section 1.11, Settlement | Comments closed

SL 08

The Court finds that (a) the Publisher Sub-Class is so numerous that joinder of all members is impracticable; (b) there are questions of law and fact common to the Publisher SubAttachment Class; (c) claims of the Publisher Sub-Class Representative Plaintiffs are typical of the claims of all members of the Publisher Sub-Class; (d) the Publisher […]

Posted in Attachment L, Section L8, Settlement | Comments closed

SL 07

The Court finds that (a) the Author Sub-Class is so numerous that joinder of all members is impracticable; (b) there are questions of law and fact common to the Author Sub- Class; (c) claims of the Author Sub-Class Representative Plaintiffs are typical of the claims of all members of the Author Sub-Class; (d) the Author […]

Posted in Attachment L, Section L7, Settlement | Comments closed

SL 05

The Settlement Agreement is approved as fair, reasonable, and adequate pursuant to Rule 23 of the Federal Rules of Civil Procedure and in the best interest of the Class and Sub- Classes, and the parties are directed to consummate the Settlement Agreement in accordance with its terms.

Posted in Attachment L, Section L5, Settlement | Comments closed

SL 04

The issues as to liability and remedies in the Action are issues as to which there are substantial grounds for difference of opinion, and the proposed settlement of the Action constitutes a resolution of those issues that is fair, reasonable and adequate to the members of the Class and Sub-Classes certified herein. Accordingly, it is […]

Posted in Attachment L, Section L4, Settlement | Comments closed

SL

[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL This matter is before the Court pursuant to the motion for final class certification and final approval of a proposed class action settlement of the above-captioned case (the “Action”) entered into between, on the one hand, Plaintiffs Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, and Herbert Mitgang […]

Posted in Attachment L, Settlement | Comments closed

SL 03

Notice of the proposed Settlement has been timely disseminated in accordance with the terms of the Preliminary Approval Order, which authorized such notice. Such notice is the best practicable notice to be provided under the circumstances and satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and applicable standards of due […]

Posted in Attachment L, Section L3, Settlement | Comments closed

SL 02

The Court preliminarily approved the Settlement Agreement by Order of _____________ (the “Preliminary Approval Order”).

Posted in Attachment L, Section L2, Settlement | Comments closed

SL 01

Unless otherwise specified, all defined terms herein shall have the same meaning as in the Settlement Agreement.

Posted in Attachment L, Section L1, Settlement | Comments closed

SL 06.3

Publisher Sub-Class Members of the 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.

Posted in Attachment L, Section L6, Section L6.3, Settlement | Comments closed

SL 06.2

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

Posted in Attachment L, Section L6, Section L6.2, Settlement | Comments closed

SL 06

The following Class (the “Settlement Class”) and two Subclasses, provisionally certified in the Preliminary Approval Order, are now finally certified for purposes of the Settlement only:

Posted in Attachment L, Section L6, Settlement | Comments closed

SL 06.1

Settlement Class All Persons that, as of January 5, 2009, 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 […]

Posted in Attachment L, Section L6, Section L6.1, Settlement | Comments closed

SM 15

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

Posted in Attachment M, Section M15, Settlement | Comments closed

SM 14

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

Posted in Attachment M, Section M14, Settlement | Comments closed

SM 13

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

Posted in Attachment M, Section M13, Settlement | Comments closed

SM 12

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

Posted in Attachment M, Section M12, Settlement | Comments closed

SM 11

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.

Posted in Attachment M, Section M11, Settlement | Comments closed

SM 10

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.

Posted in Attachment M, Section M10, Settlement | Comments closed

SM 09

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

Posted in Attachment M, Section M9, Settlement | Comments closed

SM 08

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

Posted in Attachment M, Section M8, Settlement | Comments closed

SM 07

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.

Posted in Attachment M, Section M7, Settlement | Comments closed

SM 06

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.

Posted in Attachment M, Section M6, Settlement | Comments closed

SM 05

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.

Posted in Attachment M, Section M5, Settlement | Comments closed

SM 04

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

Posted in Attachment M, Section M4, Settlement | Comments closed

SM 03

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.

Posted in Attachment M, Section M3, Settlement | Comments closed

SM 02

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.

Posted in Attachment M, Section M2, Settlement | Comments closed

SM 01

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 […]

Posted in Attachment M, Section M1, Settlement | Comments closed

SM

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, […]

Posted in Attachment M | Comments closed

SA 03

Classification of Books

Posted in Article A3, Attachment A, Settlement | Comments closed

SA

PROCEDURES GOVERNING AUTHOR SUB-CLASS AND PUBLISHER SUB-CLASS UNDER THE SETTLEMENT AGREEMENT

Posted in Attachment A, Settlement | Comments closed

SA 03.2

Tests for Determining Classification of Books. Either an Author (or the Author directors of the Board of Directors of the Registry) (other than for a work-for-hire Book) or a Publisher (or the Publisher directors of the Board of Directors Registry) (other than for a reverted or Author-Controlled (defined in Article IV) Book) can challenge the […]

Posted in Article A3, Attachment A, Section A3.2, Settlement | Comments closed

S 04.4

Advertising Revenue Model. Revenues generated from Advertising Uses will be allocated between Google and the Rightsholders in accordance with Section4.5(a)(ii) (Net Advertising Revenues).

Posted in Article 04, Section 4.4, Settlement | Comments closed

S 04.5.3

(c) Sales and Other Taxes. In all cases, Net Purchase Revenues and Net Advertising Revenues shall not include sales or other government charges or taxes. Google shall charge any applicable sales or other government charges or taxes in addition to the List Price or any other price authorized pursuant to this Amended Settlement Agreement.

Posted in Article 04, Section 4.5, Section 4.5(c), Settlement | Comments closed

S 04.5.2.7

(vii) Rightsholders’ Consumer Subscription Discount. If and at such time as a Consumer Subscription is available from Google pursuant to Section 4.7(dc) (Consumer Subscription Models), individual Rightsholders may, at the Registry’s discretion, be offered a discount off of the price for such Consumer Subscription, which discount is subject to the approval of Google and the […]

Posted in Article 04, Section 4.5, Section 4.5(b), Section 4.5(b)(vii), Settlement | Comments closed

S 04.5.2.6

(vi) Subsidies for Fully Participating Libraries and Cooperating Libraries. Google may subsidize the purchase of Institutional Subscriptions by Fully Participating Libraries and Cooperating Libraries and the amount paid to the Registry, on behalf of Rightsholder, will be as if no such subsidy had been provided.

Posted in Article 04, Section 4.5, Section 4.5(b), Section 4.5(b)(vi), Settlement | Comments closed

S 04.5.2.5

(v) Sale of Consumer Purchases through Affiliate Programs and Resellers.

Posted in Article 04, Section 4.5, Section 4.5(b), Section 4.5(b)(v), Settlement | Comments closed

S 04.5.2.4

(iv) Sales of Institutional Subscriptions through Institutional Consortia. Approved discounts, if any, that Google is authorized to offer to an Institutional Consortium or its members will be included as part of the Pricing Strategy. Additional discounts will require Registry approval. Unless otherwise agreed upon by the Registry, Google is only authorized to offer discounts to […]

Posted in Article 04, Section 4.5, Section 4.5(b), Section 4.5(b)(iv), Settlement | Comments closed

S 04.5.2.3

(iii) Use of Intermediaries for Institutional Subscription Sales Generally. Google may offer a discount of up to ten percent (10%) off the List Prices for Institutional Subscriptions for any Institutional Subscriptions sold through intermediaries.

Posted in Article 04, Section 4.5, Section 4.5(b), Section 4.5(b)(iii), Settlement | Comments closed

S 04.5.2.2

(ii) Consumer Purchases. The Registry may authorize Google to make special offers of Books available through Consumer Purchases at discounts of up to forty percent (40%) offreduced prices from the List Price Prices, subject to notification of such discountreduced price to the Registered Rightsholders (for his, her or its claimed Books) or the Unclaimed Works […]

Posted in Article 04, Section 4.5, Section 4.5(b), Section 4.5(b)(ii), Settlement | Comments closed

S 04.5.2.1

(i) Temporary Discounts. Google may providetemporary discounts off the List Prices

Posted in Article 04, Section 4.5(b), Section 4.5(b)(i), Settlement | Comments closed

S 04.5.2

(b) Discounting, Special Offers and Subsidies.

Posted in Article 04, Section 4.5, Section 4.5(b), Settlement | Comments closed

S 04.5.1.2

(ii) Net Advertising Revenues. Google shall pay to the Registry, on behalf of the Rightsholders, the Standard Revenue Split for Advertising. The“Standard Revenue Split for Advertising,” paid by Google to Rightsholders,through the Registry, is seventy percent (70%) of Net Advertising Revenues.

Posted in Article 04, Section 4.5, Section 4.5(a), Section 4.5(a)(ii), Settlement | Comments closed

S 04.5.1.1

(i) Net Purchase Revenues. Google shall pay to the Registry, onbehalf of the Rightsholders, the Standard Revenue Split for Purchases. The“Standard Revenue Split for Purchases,” paid by Google to Rightsholders, through the Registry, is seventy percent (70%) of Net Purchase Revenues.

Posted in Article 04, Section 4.5, Section 4.5(a), Section 4.5(a)(i), Settlement | Comments closed

S 04.5.1

(a) Obligation to Pay Revenue Share.

Posted in Article 04, Section 4.5, Section 4.5(a), Settlement | Comments closed

S 04.5

Standard Revenue Splits and Discounting.

Posted in Article 04, Section 4.5, Settlement | Comments closed

S 04.6.5

(e) Audit Rights.The Registry may, upon thirty (30) days’ prior notice and at its own expense, retain a nationally recognized independent and mutually-acceptable independent auditor (whose fees are not contingency based), under a duty of confidentiality to Google, to review and audit Google’s relevant records to confirm the payments due under Section 4.5 (Standard Revenue […]

Posted in Article 04, Section 4.6, Section 4.6(e), Settlement | Comments closed

S 04.6.4

(d) Taxes. Google and the Registry each agree to pay all applicable taxes or charges imposed on them by any government entity in connection with all matters contemplated by this Amended Settlement Agreement.

Posted in Article 04, Section 4.6, Section 4.6(d), Settlement | Comments closed

S 04.6.3

(c) Fraud. Neither Google, the Registry, nor Plaintiffs shall, nor shall each authorize or encourage any third party to, directly or indirectly purchase or otherwise obtain access to Books through any automated, deceptive, fraudulent or other invalid means, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent […]

Posted in Article 04, Section 4.6, Section 4.6(c), Settlement | Comments closed

S 04.6.2

(b) Exceptions. Notwithstanding the foregoing provisions of Section 4.5 (Standard Revenue Splits and Discounting) and this Section 4.6 (Payment Terms), Google shall not be required to pay the Registry for (i) any purchase of or access to Books through any fraudulent or invalid means, including the fraudulent use of credit cards or other means of […]

Posted in Article 04, Section 4.6, Section 4.6(b), Settlement | Comments closed

S 04.6.1

(a) Payment Terms. Google shall remit payment to the Registry under this Article IV (Economic Terms for Google’s Use of Books) within (i) sixty (60) days after the end of each calendar quarter for payments made with respect to Net Advertising Revenues and Net Purchase Revenues received by Google during the first full twelve (12) […]

Posted in Article 04, Section 4.6, Section 4.6(a), Settlement | Comments closed

S 04.6

Payment Terms.

Posted in Article 04, Section 4.6, Settlement | Comments closed

S 04.7.5

(e) Summaries, Abstracts and/or Compilations of Books. Google may not offer any new revenue models with respect to Books without authorization from the Registry or the Rightsholder. Subject to Section 4.5(a)(iii) (Agreed Revenue Splits), the revenue split for POD and File Download for a Book shall be the same as that for Consumer Purchase for […]

Posted in Article 04, Section 4.7, Section 4.7(e), Settlement | Comments closed

S 04.7.4

(c)(d) Consumer Subscription Models – An. This service would permit the purchase of individual version of anaccess to the Institutional Subscription Database or to a designated subset thereof (“Consumer Subscription”).

Posted in Article 04, Section 4.7, Section 4.7(d), Settlement | Comments closed

S 04.7.3

(c) PDF Download -Downloadable PDF versions of Books.

Posted in Article 04, Section 4.7, Section 4.7(c), Settlement | Comments closed

S 04.7.2

(b) Custom Publishing – Per-page pricing of Books, or portions thereof, for course materials, and other forms of custom publishing for the educational and professional markets.File Download. This service would permit purchasers of Consumer Purchase for a Book to download a copy of such Book in an appropriate file format such as PDF, EPUB or […]

Posted in Article 04, Section 4.7, Section 4.7(b), Settlement | Comments closed

S 04.7.1

(a) Print on Demand (“POD”) – POD copies of Books This service would permit purchasers to obtain a print copy of a non-Commercially Available Book distributed by third parties. A Book’s availability through such POD program would not, in and of itself, result in the Book being classified as Commercially Available.

Posted in Article 04, Section 4.7, Section 4.7(a), Settlement | Comments closed

S 04.7

NewAdditional (for unclaimed Books, the Unclaimed Works Fiduciary) Revenue Models. The Registry (for unclaimed Books, the Unclaimed Works Fiduciary and Google may, over time, agree to new revenue models, and discount programs (if any) for such revenue models, including agree to one or more of the following additional Revenue Models:

Posted in Article 04, Section 4.7, Settlement | Comments closed

S 04.8.2

(b) Commercial Public Access Service. The Registry and Google may agree to make a commercial public access service available to copy shops and other entities for an annual fee per concurrent user and a fee per printed page.

Posted in Article 04, Section 4.8, Section 4.8(b), Settlement | Comments closed

S 04.8.1.3

(iii) Additional Public Access Service. The Registry and Google may agree that Google may make available the Public Access Service to one or more Public Libraries or not-for-profit Higher Education Institutions either for free or for an annual fee, in addition to the Public Access Service provided under Section 4.8(a)(i) (Free Public Access Service).

Posted in Article 04, Section 4.8, Section 4.8(a), Section 4.8(a)(iii), Settlement | Comments closed

S 04.8.1.2

(ii) Printing. Google shall design the Public Access Service to enable users at a not-for-profit Higher Education Institution to print pages from Display Books for a per-page fee, and to enable users at a Public Library to print pages from Display Books for a per-page fee to the extent that such Public Library offers per-page […]

Posted in Article 04, Section 4.8, Section 4.8(a), Section 4.8(a)(ii), Settlement | Comments closed

S 04.8.1.1.3

(3) in the case of each Public Library, no more than one terminal per Library Building.; provided, however, that the Registry may authorize one or more additional terminals in any Library Building under such further conditions at it may establish, acting in its sole discretion and in furtherance of the interests of all Rightsholders.

Posted in Article 04, Section 4.8, Section 4.8(a), Section 4.8(a)(i), Section 4.8(a)(i)(3), Settlement | Comments closed

S 04.8.1.1.2

(2) in the case of not-for-profit Higher Education Institutions that qualify as Associate’s Colleges pursuant to the Carnegie Classification of Institutions of Higher Education, one computer terminal for every four thousand (4,000) Full-Time Equivalency (i.e., full-time equivalent students) at each such institution (which computer terminal may change from time to time); and

Posted in Article 04, Section 4.8, Section 4.8(a), Section 4.8(a)(i), Section 4.8(a)(i)(2), Settlement | Comments closed

S 04.8.1.1.1

(1) in the case of not-for-profit Higher Education Institutions that do not qualify as Associate’s Colleges pursuant to the Carnegie Classification of Institutions of Higher Education, one computer terminal for every ten thousand (10,000) Full-Time Equivalency (i.e., full-time equivalent students) at each such institution (which computer terminal may change from time to time);

Posted in Article 04, Section 4.8, Section 4.8(a), Section 4.8(a)(i), Section 4.8(a)(i)(1), Settlement | Comments closed

S 04.8.1.1

(i) Free Public Access Service. Google may provide the Public Access Service to each not-for-profit Higher Education Institution and Public Library that so requests at no charge (and without any payment to the Rightsholders, through the Registry or otherwise (other than as set forth in Section 4.8(a)(ii) (Printing)) as follows:

Posted in Article 04, Section 4.8, Section 4.8(a), Section 4.8(a)(i), Settlement | Comments closed

S 04.8.1

(a) Public Access Service.

Posted in Article 04, Section 4.8, Section 4.8(a), Settlement | Comments closed

S 04.8

Public Access Service.

Posted in Article 04, Section 4.8, Settlement | Comments closed

S 04.9

Economic Terms Renegotiation. Unless otherwise agreed by the Registry and Google, the economic terms pertaining to any newadditional Revenue Models agreed pursuant to Section 4.7 (NewAdditional Revenue Models) may, at the option of Google or the Registry, be renegotiated at the end of the three (3)-year period commencing with the Effective Date, and every four […]

Posted in Article 04, Section 4.9, Settlement | Comments closed

S 03.07.5.1

(i) Digital Copy of Excluded Books. Google will provide to the Registry a Digital Copy of any Book that Google excludes for editorial reasons. The Registry may, subject to Section 3.5 (Right to Remove and or Exclude) engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library […]

Posted in Article 03, Section 3.7, Section 3.7(e), Section 3.7(e)(i), Settlement | Comments closed

S 03.07.5

(e) Google’s Exclusion of Books. Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google’s right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google. Accordingly, […]

Posted in Article 03, Section 3.7, Section 3.7(e), Settlement | Comments closed

S 03.07.4

(d) Third-Party Required Library Services Provider. If Google provides a Digital Copy of the Library Scans to a Third-Party Required Library Services Provider under Section 7.2(e) (Required Library Services Requirement), then the Contemplated Rightsholder Services may also be provided by the Third-Party Required Library Services Provider in addition to the Required Library Services, and Google […]

Posted in Article 03, Section 3.7, Section 3.7(d), Settlement | Comments closed

S 03.07.3

(c) Additional Contemplated Rightsholder Services Provider. In addition, if (i) Google fails to implement both of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year […]

Posted in Article 03, Section 3.7, Section 3.7(c), Settlement | Comments closed

S 03.07.2

(b) Failure to Provide Contemplated Rightsholder Services. If (i) Google fails to implement either of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, and does not implement comparable replacement monetization opportunities […]

Posted in Article 03, Section 3.7, Section 3.7(b), Settlement | Comments closed

S 03.05.3.2.5

(5) In any disputes between an Initial Authorizing Rightsholder and a Notifying Rightsholder over which of them has the right to authorize Google to exploit a Book in the Other Google Program or in the Revenue Models, Google will not be named as a party or brought into the dispute in any manner and will […]

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(5), Settlement | Comments closed

S 03.05.3.2.4

(4) If the Initial Authorizing Rightsholder responds to a Transfer Request by filing a notice of objection with the Registry, then Google shall not include such Book in the Revenue Models and shall stop displaying such Book in the Other Google Program while the Notifying Rightsholder and the Initial Authorizing Rightsholder resolve the dispute. Google […]

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(4), Settlement | Comments closed

S 03.05.3.2.3

(3) If the Initial Authorizing Rightsholder fails to respond within thirty (30) days, then, if the request satisfies the requirements set forth in the Author-Publisher Procedures, Google shall take down such Book or transfer such Book into the Revenue Models, as specified in the request. If Google transfers such Book into the Revenue Models, such […]

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(3), Settlement | Comments closed

S 03.05.3.2.2

(2) If the Initial Authorizing Rightsholder fails to respond within thirty (30) days, then, if the request satisfies the requirements set forth in the Author-Publisher Procedures, Google shall take down such Book or transfer such Book into the Revenue Models, as specified in the request. If Google transfers such Book into the Revenue Models, such […]

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(2), Settlement | Comments closed

S 03.05.3.2.1

(1) If Google receives a Take Down Request or a Transfer Request from the Registry, Google shall send a copy to the Initial Authorizing Rightsholder.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(1), Settlement | Comments closed

S 03.05.3.2

(ii) Procedures. The following procedures will apply to each Book classified as In-Print under the Author-Publisher Procedures (except for Educational Books) that is the subject of a contract between an author and a publisher regarding publication of such Book executed prior to 1992 and that has not been amended thereafter to expressly grant or retain […]

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Settlement | Comments closed

S 03.05.3.1.7

(7) “Transfer Request” means a request, in the form of notice attached as Exhibit A to the Author-Publisher Procedures, to transfer a Book from an Other Google Program to one or more Display Uses in one or more of the Revenue Models.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(7), Settlement | Comments closed

S 03.05.3.1.6

(6) “Take Down Request” means a request, in the form of notice attached as Exhibit A to the Author-Publisher Procedures, that Google remove a Book from an Other Google Program.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(6), Settlement | Comments closed

S 03.05.3.1.5

(5) “Other Google Program” means a Google program other than, but similar to, the Revenue Models, including the Google Partner Program.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(5), Settlement | Comments closed

S 03.05.3.1.4

(4) “Notifying Rightsholder” means a Rightsholder who has a good faith belief that Google is exploiting a Book in an Other Google Program without the necessary authorization from such Rightsholder.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(4), Settlement | Comments closed

S 03.05.3.1.3

(3) “Initial Authorizing Rightsholder” means the Person who had given Google permission to use a Book that is the subject of a Take Down Request or a Transfer Request.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(3), Settlement | Comments closed

S 03.05.3.1.2

(2) “Educational Books” means Books that, when published, were intended primarily for sale to educational markets (i.e., K-12, higher education, continuing education, vocational, professional, self-study, and similar educational markets) for use in educational programs.

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(2), Settlement | Comments closed

S 03.05.3.1.1

(1) “Counter-Notice” means a request, in the form of notice or-Publisher Procedures, that states, under penalty of perjury, that the Initial Authorizing Rightsholder has the good faith belief that he, she or it has rights in a Book that is the subject of a Take Down Request or a Transfer Request necessary to authorize Google […]

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(1), Settlement | Comments closed

S 03.05.3.1

(i) Definitions. As used in this Section 3.5(c) (Take-Down or Transfer Requests), the following terms have the following meanings:

Posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Settlement | Comments closed

S 03.05.2.7

(vii) Government Works and Public Domain Works. If a Rightsholder of an Insert in a Government Work or a Public Domain Book (not an Insert in a Book) directs Google to exclude its Insert from Display Uses, Google may elect to reject such direction. In the event of such a rejection, such Rightsholder may, notwithstanding […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(vii), Settlement | Comments closed

S 03.05.2.6

(vi) Continuing Obligations. If Google is authorized to make a Display Use of a Book and, subsequent to such authorization, a Rightsholder Removes such Book or excludes such Book or an Insert contained therein, Google shall cease such Display Use except that Google may make such Display Use of such Book or Insert to the […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(vi), Settlement | Comments closed

S 03.05.2.5

(v) Waiver of Coupling Requirement. Google and the Registry may, with the consent of a Fully Participating Library or a Cooperating Library, agree to waive the Coupling Requirement as to Library Works of which such Fully Participating Library or Cooperating Library is the source and for which Google uses a Library Scan for Display Uses; […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(v), Settlement | Comments closed

S 03.05.2.4

(iv) Mistakes and the Coupling Requirement. IIf, as of the Notice Commencement Date, a Library Work for which Google uses a Library Scan for Consumer Purchase or any new additional Revenue Model that may be developed pursuant to Section 4.7 (New Additional Revenue Models) (except for any new additional Revenue Model in which access to […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(iv), Settlement | Comments closed

S 03.05.2.3

(iii) Coupling Requirement. Notwithstanding Section 3.5(b)(i) (Right to Exclude), if the Rightsholder of any Library Work authorizes Consumer Purchase or any new additional Revenue Model that may be developed pursuant to Section 4.7 (New Additional Revenue Models) (except for any new additional Revenue Model in which access to the Library Scan of that Library Work […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(iii), Settlement | Comments closed

S 03.05.2.2

(ii) Challenging Insert Exclusion Requests. The Rightsholder of a Book that contains an Insert that the Rightsholder of the Insert has directed be excluded may challenge such direction under law or contract rights, and any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution). In addition, if (a) the Rightsholder of […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(ii), Settlement | Comments closed

S 03.05.2.1.1

(1) Exclusion from Library Digital Copy. Notwithstanding Section 3.5(b)(i) (Right to Exclude), no Rightsholder may direct that his, her or its Book or Insert be excluded from any Library Digital Copy provided, however, that, in the case of a Book, a Rightsholder of the Book may request Removal of such Book pursuant to Section 3.5(a) […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(i), Section 3.5(b)(i)(1), Settlement | Comments closed

S 03.05.2.1

(i) Right to Exclude. Any Rightsholder of a Book at any time maydirect Google or the Registry to exclude his, her or its Book, or any portion thereof, from any one or more, or all, Display Uses, Revenue Models or the Book Annotation sharing feature under Section 3.10(c)(ii) (Hyperlinks and Book Annotations), and any Rightsholder […]

Posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(i), Settlement | Comments closed

S 03.05.1.3

(iii) Limitations on Right to Remove. The right to Remove under Section 3.5(a)(i) (Right to Remove) is limited to requests made within twenty-seven (27) months from the Notice Commencement Date on or before April 5, 2011 for Removal as described in Section 1.126(a) (Removed) or after April 5, 2011 but on or before March 9, […]

Posted in Article 03, Section 3.5, Section 3.5(a), Section 3.5(a)(iii), Settlement | Comments closed

S 03.05.1.2

(ii) Back-up Storage. Google and Fully Participating Libraries may maintain Books on back-up tapes or on any other back-up storage media subject to compliance with the Security Standard. If any back-up tape or other back-up storage media containing such Book is restored, then any Book that has been Removed pursuant to Section 3.5(a)(i) (Right to […]

Posted in Article 03, Section 3.5, Section 3.5(a), Section 3.5(a)(ii), Settlement | Comments closed

S 03.05.1.1

(i) Right to Remove. A Rightsholder of a Book may direct that his, her or its Book not be Digitized, or if already Digitized, that the Book be Removed. If a Book has not yet been Digitized when Google receives a Removal request for that Book, Google will use reasonable efforts not to Digitize that […]

Posted in Article 03, Section 3.5, Section 3.5(a), Section 3.5(a)(i), Settlement | Comments closed

S 03.05.3

(c) Take-Down or Transfer Requests.

Posted in Article 03, Section 3.5, Section 3.5(c), Settlement | Comments closed

S 03.05.2

(b) Right to Exclude from Display Uses and Revenue Models.

Posted in Article 03, Section 3.5, Section 3.5(b), Settlement | Comments closed

S 03.05.1

(a) Right to Remove.

Posted in Article 03, Section 3.5, Section 3.5(a), Settlement | Comments closed

S 03.05

Right to Remove or Exclude.

Posted in Article 03, Section 3.5, Settlement | Comments closed

S 03.04.2

(b) Change to Display. Rightsholders of Books may, pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a No Display Book to a Display Book, or to include any or all of their No Display Books in one or more of the Display Uses, in which […]

Posted in Article 03, Section 3.4, Section 3.4(b), Settlement | Comments closed

S 03.04.1

(a) Non-Display Uses. Subject to Section 3.5 (Right to Remove or Exclude), Google may make Non-Display Uses of all No Display Books.

Posted in Article 03, Section 3.4, Section 3.4(a), Settlement | Comments closed

S 03.04

No Display Books.

Posted in Article 03, Section 3.4, Settlement | Comments closed

S 06.5.3

(c) Survival. Google’s rights to have access to data about a Book or Insert will survive the expiration of the term of the U.S. copyright in such Book or Insert and, to the extent that Google requires access to data after the expiration of the terms of all U.S. copyrights in all Books and Inserts, […]

Posted in Article 06, Section 6.5, Section 6.5(c), Settlement | Comments closed

S 06.5.2

(b) Data for Fully Participating Libraries. provide Google with access to such Registry data, including all updates, as are reasonably necessary for Fully Participating Libraries to perform their obligations under their respective Library-Registry (Fully Participating) Agreements. Google may provide to the Fully Participating Libraries such Registry data, including all updates, as are reasonably necessary for […]

Posted in Article 06, Section 6.5, Section 6.5(b), Settlement | Comments closed

S 06.5.1

(a) Data for Google. The Registry will provide Google with access to such Registry data, including all updates, as are reasonably necessary for Google to perform its obligations under this Amended Settlement Agreement.

Posted in Article 06, Section 6.5, Section 6.5(a), Settlement | Comments closed

S 06.5

Google’s Rights to Registry Data.

Posted in Article 06, Section 6.5, Settlement | Comments closed

S 05.3.8

(h) Google Rights and Obligations. Google shall not have any responsibility to make any filings relating to the Settlement Fund, and Google shall have no responsibility to pay taxes, including interest and penalties due thereon, on interest earned by the Settlement Fund. In the event the Settlement is not approved by the Court or is […]

Posted in Article 05, Section 5.3, Section 5.3(h), Settlement | Comments closed

S 05.3.7

(g) Payment of Administrative Costs. Prior to the Effective Date, disbursements may be made from the Initial Settlement Deposit, or any additional funds that may have been paid pursuant to Section 5.3(a) (Initial Settlement Deposit), for reasonable expenses actually incurred in paying Administrative Costs, in a total amount not to exceed twelve million United States […]

Posted in Article 05, Section 5.3, Section 5.3(g), Settlement | Comments closed

S 05.3.6

(f) Investment. Until such time after the Effective Date as the Settlement Fund is distributed to Rightsholders consistent with the terms of this Amended Settlement Agreement and as otherwise ordered by the Court, the Settlement Fund shall be invested and reinvested by Class Counsel in United States Treasury Bills, Notes or other obligations of the […]

Posted in Article 05, Section 5.3, Section 5.3(f), Settlement | Comments closed

S 05.3.5

(e) Designation. The Settlement Fund is intended as, and shall be, a separate escrow fund of moneys held at Depository Bank and shall qualify as a “qualified settlement fund” within the meaning of Treasury Regulation Section 1.468B-1. Class Counsel or its designee shall be the “administrator” of the Settlement Fund within the meaning of Treasury […]

Posted in Article 05, Section 5.3, Section 5.3(e), Settlement | Comments closed

S 05.3.4

(d) Limitation of Use. Except as otherwise provided in this Amended Settlement Agreement, no disbursement or other use of any portion of the Settlement Fund shall be made without approval of the Court.

Posted in Article 05, Section 5.3, Section 5.3(d), Settlement | Comments closed

S 05.3.3

(c) Supplemental Deposit. In the event Google is required to make additional sentence of Section 5.1(b) (Funding of Cash Payments), Google shall deposit in the Settlement Fund an amount sufficient to fund the additional Cash Payments (“Supplemental Deposit”) by wire transfer to the Depository Bank, within ten (10) Business Days after the later of (i) […]

Posted in Article 05, Section 5.3, Section 5.3(c), Settlement | Comments closed

S 05.3.2

(b) Final Settlement Deposit. No later than ten (10) Business Days after the Effective Date, Google shall deposit the amount of sixty-seven million five hundred thousand United States dollars (U.S. $67.5 million) (the “Final Settlement Deposit”), less any funds in addition to the Initial Settlement Deposit that may have been paid pursuant to Section 5.3(a) […]

Posted in Article 05, Section 5.3, Section 5.3(b), Settlement | Comments closed

S 05.3.1

(a) Initial Settlement Deposit. No later than ten (10) Business Days after the Settlement Agreement Date, Google shall deposit the amount of Google deposited twelve million United States dollars (U.S. $12 million) (the “Initial Settlement Deposit”) on November 10, 2008 into an interest bearing escrow account by wire transfer to the Depository Bank. The Initial […]

Posted in Article 05, Section 5.3, Section 5.3(a), Settlement | Comments closed

S 05.3

Timing of Payments under Sections 5.1 and 5.2.

Posted in Article 05, Section 5.3, Settlement | Comments closed

S 05.2

Payment For Registry, Notice and Claims Administration. In addition to the Cash Payments provided for in Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized), Google has paid or shall pay into the Settlement Fund thirty-four million five hundred thousand United States dollars (U.S. $34.5 million), as set forth in […]

Posted in Article 05, Section 5.2, Settlement | Comments closed

S 05.1

Cash Payment to Class Members Whose Books and Inserts Have Been Digitized.

Posted in Article 05, Section 5.1, Settlement | Comments closed