Category Archives: Agreement UM 4.4

L UM 04.4

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Rights to U of M Digital Copy. Neither U of M nor Google shall hold any license or other rights to the Available Content that is Digitized (i.e., to the materials underlying the Digitization process), except where U of M otherwise holds such rights. As between Google and U of M, and subject to the provisions in this Section 4, U of M shall hold all rights, title, and interest to the U of M Digital Copy.

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L UM 04.4.01

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Use of U of M Digital Copy on U of M Website. U of M shall have the right to use the U of M Digital Copy, in whole or in part at U of M’s sole discretion, as part of services offered on U of M’s website. U of M shall implement technological measures (e.g., through use of the robots.txt protocol) to restrict automated access to any portion of the U of M Digital Copy or the portions of the U of M website on which any portion o ft he U of M Digital Copy is available. U of M shall also make reasonable efforts (including but not limited to restrictions placed in Terms of Use for the U of M website) to prevent third parties from (a) downloading or otherwise obtaining any portion of the U of M Digital Copy for commercial purposes, (b) redistributing any portions of the U of M Digital Copy, or (c) automated and systematic downloading from its website image files from the U of M Digital Copy. U of M shall restrict access to the U of M Digital Copy to those persons having a need to access such materials d and shall also cooperate in good faith with Google to mutually develop methods and systems for ensuring that the substantial portions of the U of M Digital Copy are not downloaded form the services offered on U of M’s website or otherwise disseminated to the public at large. The parties acknowledge that U of M may host more than one U of M website and agree that this Section 4.4.1 applies to each such website, provided that the domain for each such website is owned by U of M. This Section 4.4.1 shall not apply to the Settlement Digital Copy solely to the extent it conflicts with Section 4.4.3 or U of M’s Library-Registry (Fully Participating) Agreement.

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L UM 04.4.02

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Use of U of M Digital Copy in Cooperative Web Services. Except as set forth in Section 4.4.3 and the terms of U of M’s Library-Registry (Fully Participating) Agreement and this Section, and provided U of M has obtained all necessary permissions, rights, and licenses from third parties, U of M shall have the right to use the U of M Digital Copy, in whole or in part at U of M’s sole discretion, as part of web services offered in cooperation with partner academic libraries and/or partner public research libraries (such as the New York Public Library), including, without limitation, the institutions in the Association of Research Libraries, Digital Library Federation and similar organizations. Such services may include, without limitation, indexes and finding tools, as well as the reproduction and display of the U of M Digital Copy, to the extent not otherwise prohibited by this Agreement and U of M’s Library-Registry (Fully Participating) Agreement. Before U of M makes any such use that involves the distribution of one or more Digital Copies included within the U of M Digital Copy to any such library, such library must enter into a written agreement with Google, the form of which Google will provide to U of M. Such agreement will (a) prohibit such receiving library from redistributing such Digital Copies from the U of M Digital Copy to any third party, except that U of M may authorize such library to redistribute such Digital Copies as an agent and on behalf of U of M subject to the rights and restrictions set forth in this Agreement, provided U of M would have the right under this Agreement to make such redistribution directly, (b) limit the receiving library’s use of such Digital Copies from the U of M Digital Copy to the sole purpose of providing cooperative web services as set forth herein, which limitations on use shall in all events be at least as restrictive as those placed on U of M’s use of the U of M Digital Copy in this Agreement and, if applicable, the Library-Registry (Fully Participating) Agreement, and (c) require such receiving library (i) to use reasonable efforts to prevent third parties from bulk downloading substantial portions of such Digital Copies, and (ii) to implement technological measures (e.g., through use of the robots.txt protocol) to restrict automated access to any part of such entity’s website where substantial portions of such Digital Copies are available. U of M will have the right to approve those sections of the form of such agreement that grant any rights that materially differ from the rights granted to U of M with respect to the use of such portions of the U of M Digital Copy in the Agreement.

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L UM 04.4.03

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Provision and Use of Settlement Digital Copy. Effective as of the Effective Date, in addition to the terms of U of M’s Library-Registry (Fully Participating) Agreement, the following shall apply to U of M’s use of the Settlement Digital Copy:

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L UM 04.4.03.1

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(a) Removal. U of M agrees that if a Rightsholder directs that its Book be Removed pursuant to Section 3.5 of the Settlement Agreement and subject to certain limitations set forth therein, Google shall have no obligation to provide or make available to U of M a Digital Copy of such Book.

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L UM 04.4.03.2

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(b) Provision of Settlement Digital Copy. The U of M Digital Copy provided to U of M by Google may contain Books and Inserts contained in the Available Content that Google did not actually Digitize at U of M but has Digitized from another library. If either (i) Google has Digitized or received from U of M in Digitized form at least five (5) million works from the Available Content, or (ii)(A) Google has Digitized or received from U of M in Digitized form at least 3 million works from the Available Content, (B) U of M has made and is continuing to make all works in the Available Content accessible (or would have made such works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics) to Google at a reasonable rate (the “reasonableness” of the rate will take into account the number of works remaining in the Available Content that Google desires to Digitize, Google’s thencurrent ability to process such works and any operational issues or issues beyond the reasonable control of U of M that may result in variations in the rate or delays) unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (B) shall continue in the event Google begins to act in good faith in the performance of such obligation again), and (C) U of M is not then in an uncured material breach of this Agreement unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (C) shall continue in the event Google begins to act in good faith in the performance of such obligation again); then Google will be required to return Digital Copies of Books and Inserts to U of M that were Digitized, in whole or in part (which Digital Copies returned to U of M will be composites if Digitized in part at different libraries), at a different library if those Books or Inserts are contained within the Available Content and U of M (1) made the Books or Inserts available to Google for Digitization or (2) would have made such Books or Inserts available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics. U of M shall provide Google with data regarding the Available Content sufficient for Google to verify that a work Digitized at another library is included within the Available Content. Notwithstanding anything to the contrary set forth herein, Google shall not be obligated to include in-copyright content Digitized from libraries other than U of M that is not subject to the Settlement Agreement as part of any Digital Copy provided by Google to U of M.

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L UM 04.4.03.3

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(c) U of M as Hosting Fully Participating Library. In the event a Requesting Fully Participating Library authorizes U of M to store and host such Requesting Fully Participating Library’s Library Digital Copy pursuant to Section 7.2(b)(x) of the Settlement Agreement, then U of M may treat such Requesting Fully Participating Library’s Library Digital Copy in accordance with the terms applicable to the Settlement Digital Copy set forth herein with respect to U of M’s exercise of its rights under Section 7.2(b)(x) of the Settlement Agreement, notwithstanding any terms governing such Requesting Fully Participating Library’s Library Digital Copy set forth in such Requesting Fully Participating Library’s Digitization Agreement with Google that are more restrictive than or conflict with the terms governing U of M’s Settlement Digital Copy set forth herein. Google will apply the terms of Sections 4.4.5 (Redacted Information) and 4.4.6 (Technological Updates and Replacements) hereof to the Library Scans contained in each Requesting Fully Participating Library’s Library Digital Copy hosted by U of M pursuant to Section 7.2(b)(x) of the Settlement Agreement, notwithstanding any more restrictive term set forth in such Requesting Fully Participating Library’s Digitization Agreement with Google. U of M shall not be liable to Google for a Requesting Fully Participating Library’s breach of its Library-Registry (Fully Participating) Agreement or its Digitization Agreement with Google, except to the extent that an action or omission of U of M in breach of its contractual or legal obligations was a cause of such breach.

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L UM 04.4.04

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Provision and Use of Non-Settlement Digital Copy. This Section shall apply to that portion of the Non-Settlement Digital Copy that is in the public domain.

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L UM 04.4.04.1

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(a) Provision of Public Domain Works. The Non-Settlement Digital Copy provided to U of M by Google may contain Digital Copies of public domain works that Google did not actually Digitize at U of M but has Digitized from another library. If: either (i) Google has Digitized or received from U of M in Digitized form at least five (5) million works from the Available Content or (ii)(A) Google has Digitized or received from U of M in Digitized form at least 3 million works from the Available Content; (B) U of M has made and is continuing to make all works in the Available Content accessible (or would have made such works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics) to Google at a reasonable rate (the “reasonableness” of the rate will take into account the number of works remaining in the Available Content that Google desires to Digitize, Google’s then current ability to process such works and any operational issues or issues beyond the reasonable control of U of M that may result in variations in the rate or delays) unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (B) shall continue in the event Google begins to act in good faith in the performance of such obligation again); and (C) U of M is not then in an uncured material breach of this Agreement unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (C) shall continue in the event Google begins to act in good faith in the performance of such obligation again); then Google will be required to return Digital Copies of works that Google has determined to be in the public domain to U of M that were Digitized, in whole or in part (which Digital Copies returned to U of M will be composites if Digitized in part at different libraries), at a different library if those public domain works are contained within the Available Content and U of M either (1) made the public domain works available to Google for Digitization or (2) would have made such public domain works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics. U of M shall provide Google with data regarding the Available Content sufficient for Google to verify that a work Digitized at another library is included within the Available Content.

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L UM 04.4.04.2

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(b) Non-Profit Uses. Notwithstanding the restrictions set forth in Sections 4.4.1 and 4.4.2 of the Agreement, U of M may provide all or any portion of the Non-Settlement Digital Copy that is, at the time of such provision, a Digital Copy of a public domain work to (i) academic institutions or research or public libraries, or (ii) when requested by U of M and agreed upon in writing by Google, other not for-profit or government entities that are not providing search or hosting services substantially similar to those provided by Google, including but not limited to those services substantially similar to GBS (provided, however, that Google acknowledges and agrees that print-on-demand services are not substantially similar to any such services and U of M may provide such portions of the Non-Settlement Digital Copy to an entity set forth in this clause (ii) solely for such entity to provide print-on-demand services for U of M without Google’s consent), such agreement not to be unreasonably withheld or delayed (each entity in clauses (i) and (ii) being referred to as an “Additional Institution”), in each case for research, scholarly, or academic purposes, all of which must be non-commercial (unless otherwise agreed upon in writing by Google). Any Additional Institution must enter into a written agreement with Google prior to U of M providing any portion of the Non-Settlement Digital Copy to such Additional Institution, the form of which Google will provide to U of M. Such agreement will prohibit such Additional Institution from redistributing such portions of the Non-Settlement Digital Copy to other entities (beyond providing or making content available to scholars and other users for educational or research purposes), prohibit such Additional Institution from using such portions of the Non- Settlement Digital Copy to provide search or hosting services substantially similar to those provided by Google, including but not limited to those services substantially similar to GBS, and require such Additional Institution (A) to use reasonable efforts to prevent third parties from bulk downloading substantial portions of such Digital Copies of such works, and (B) to implement technological measures (e.g., through use of the robots.txt protocol) to restrict automated access to any part of such entity’s website where substantial portions of such Digital Copies are available. U of M will have the right to approve those sections of the form of such agreement that grant any rights that materially differ from the rights granted to U of M with respect to the use of such portions of the Non-Settlement Digital Copy in the Agreement.

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L UM 04.4.04.3

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(c) Lifting of Restrictions. Beginning on the date twenty (20) years following the Amendment Effective Date, notwithstanding the restrictions set forth in Sections 4.4.1 and 4.4.2 of the Agreement, U of M may provide all or any portion of the Non-Settlement Digital Copy that is, at the time of such provision, a Digital Copy of a public domain work to any entity so long as such entity is not providing search or hosting services substantially similar to those provided by Google, including but not limited to those services substantially similar to GBS (it being acknowledged by Google that print-on-demand services are not substantially similar to any such services) (each such entity being referred to as an “Additional Entity”). Any Additional Entity must enter into a written agreement with Google prior to U of M providing any portion of the Non-Settlement Digital Copy to such Additional Entity, the form of which Google will provide to U of M. Such agreement will prohibit such Additional Entity from redistributing such portions of the Non-Settlement Digital Copy to other entities (beyond providing or making content available to scholars and other users for non-commercial educational or research purposes), prohibit such Additional Entity from using such portions of the Non-Settlement Digital Copy to provide search or hosting services substantially similar to those provided by Google, including but not limited to those services substantially similar to GBS, and require such Additional Entity (A) to use reasonable efforts to prevent third parties from bulk downloading substantial portions of such Digital Copies of such works, and (B) to implement technological measures (e.g., through use of the robots.txt protocol) to restrict automated access to any part of such entity’s website where substantial portions of such Digital Copies are available. U of M will have the right to approve those sections of the form of such agreement that grant any rights that materially differ from the rights granted to U of M with respect to the use of such portions of the Non-Settlement Digital Copy in the Agreement.

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L UM 04.4.04.4

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(d) Failure to Provide Access. Beginning on the Amendment Effective Date, if Google fails to offer a free service to end users with respect to any work in the Non-Settlement Digital Copy that Google has determined to be in the public domain that enables end users to search, view and print the full text of that public domain work (unless the Digital Copy of such work is excluded by Google for quality, technical, or legal reasons) for (i) any period of six (6) contiguous months or (ii) any two (2) periods of ninety (90) contiguous days, which periods occur in any period of twenty-four (24) contiguous months, then all restrictions and requirements set forth in the Agreement (including without limitation Sections 4.4.1, 4.4.2, and this 4.4.4) regarding use or distribution of the Digital Copy of that public domain work for which Google failed to offer such services by U of M or by any recipient entity will terminate, provided U of M has provided written notice to Google of such failure and Google has not remedied such failure within thirty (30) days following Google’s receipt of such notice.

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L UM 04.4.04.5

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(e) No Restrictions. All restrictions and requirements set forth in the Agreement regarding use or distribution (whether by U of M or by any recipient entity) (including without limitation those set forth in Sections 4.4.1, 4.4.2 and this 4.4.4) of the works contained in the Non-Settlement Digital Copy that from time to time are in the public domain shall terminate on January 1, 2050; provided, however, that Google and U of M agree to evaluate business conditions in 2024 with respect to a possible earlier termination of such restrictions and requirements.

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L UM 04.4.04.6

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(f) Purpose. For clarity, U of M and Google acknowledge that none of the restrictions or requirements set forth in paragraphs (b) and (c) above was created for the purpose of hindering U of M or any recipient entity from providing public user access to the public domain works contained in the Non-Settlement Digital Copy. Rather, the purpose of the continuing restrictions and requirements above is to allow Google to protect the benefit of Google’s investment in light of the costs and resources related to Digitizing the Available Content.

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L UM 04.4.05

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Redacted Information. To the extent Google redacts any information (including without limitation any illustrations, photographs, or other images) from any Digital Copy provided to U of M, Google shall provide U of M information identifying each location within such Digital Copy containing redacted information, at the same time as Google makes the Digital Copy of the work (or improvements or updates thereto) available to U of M.

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L UM 04.4.06

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Technological Updates and Replacements. This paragraph shall be effective upon the Amendment Effective Date with respect to works in the public domain as of and after such date; this paragraph shall be effective upon the Effective Date with respect to all other works in the U of M Digital Copy. Within a reasonable period of time after Google Improves a Digital Copy of any such work, Google will provide or make available to U of M a copy of the Improved Digital Copy. In addition, Google will provide or make available to U of M a copy of the Improved Digital Copy for each such work each time a Digital Copy of that work is Improved by (i) any Fully Participating Library or Cooperating Library to the extent Google is so permitted under a contract with such Fully Participating Library or Cooperating Library and provided that such Fully Participating Library or Cooperating Library makes the Improved Digital Copy available to Google, (ii) any third party that Improves the quality of a Digital Copy of such work to be used in the Accommodated Services under the terms of a Library-Registry (Fully Participating) Agreement, Library-Registry (Cooperating) Agreement, and/or the Settlement Agreement, to the extent Google is so permitted under a contract with such third party and provided that such third party makes the Improved Digital Copy available to Google, or (iii) any third party to the extent Google is so permitted under a contract with such third party and provided that such third party makes the Improved Digital Copy available to Google. If U of M elects to download from Google a copy of the Improved Digital Copy of any such work, U of M may download only the most current version of such file made available to it by Google. Google will make the Improved Digital Copy available to U of M within a reasonable period of time after it is created by another party and provided to Google as contemplated by this Section. For purposes of this Section, the term “Improve” shall mean with respect to a Digital Copy, to make changes to a Digital Copy that materially improve the viewability of text or the fidelity of the work and shall not include changes made by Google to improve indexing, add content, or for other purposes (the resulting Digital Copy shall be an “Improved Digital Copy” and any such improvement shall be an “Improvement”). For example only, “Improve” shall include, without limitation: making improvements to a Digital Copy that make the text of a work easier to view by users with print disabilities and improvements to the Digital Copy from increased OCR accuracy. Notwithstanding anything to the contrary set forth herein, with respect to works contained in the Non-Settlement Digital Copy that Google has not determined to be in the public domain, Google shall be required to provide or make available Improved Digital Copies of such works (i) only if the improvement materially improves the usability or quality of Digital Copies for preservation (it being acknowledged that U of M has an interest in maintaining high quality Digital Copies for preservation) or (ii) otherwise upon request by U of M, and Google will not unreasonably withhold consent to such request provided that Google may withhold consent for legal or reasonable other reasons. In connection with the furnishing of such Improved Digital Copies, Google agrees from time to time to (x) use delivery methods to be mutually agreed upon between Google and U of M that are reasonably appropriate to timely delivery of the volume of content being delivered; (y) employ mutually agreed upon technologies that provide reasonably appropriate downloading and throughput speeds to U of M; and (z) make available servers (or use some other mutually agreed upon mechanism for delivery of data) that have reasonably appropriate capacity and rate of connectivity. Google will also provide U of M access to download a copy of the file for any Digitized work previously provided to U of M that has become lost, damaged, or destroyed within thirty (30) days of any request by U of M.

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L UM 04.4.06.1

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Technical Cooperation. Google will reasonably cooperate with U of M to establish mutually agreed communications and dispute resolution procedures with the goal that issues related to technical performance (including without limitation download issues) be addressed expeditiously.

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L UM 04.4.07

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Misclassifications. Google shall reasonably cooperate with U of M at U of M’s request to develop a process by which U of M may investigate and report to Google what U of M believes to be misclassifications of works as not being in the public domain, as well as a process by which Google will consider such reported misclassifications.

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L UM 04.4.08

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Institutional Subscription Terms and Subsidy.

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L UM 04.4.08.1

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(a) Discount. For a period of twenty-five (25) years from the date the full Institutional Subscription (whether such product is offered alone or in combination with other Google products) is first offered to Higher Education Institutions, Google shall provide a version of the Institutional Subscription product that is limited to all of the Books and Inserts contained in the Institutional Subscription Database to U of M without charge, provided: (i) U of M has made and is continuing to make all works in the Available Content accessible (or would have made such works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics) to Google at a reasonable rate (the “reasonableness” of the rate will take into account the number of works remaining in the Available Content that Google desires to Digitize, Google’s then-current ability to process such works and any operational issues or issues beyond the reasonable control of U of M that may result in variations in the rate or delays) unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (i) shall continue in the event Google begins to act in good faith in the performance of such obligation again); (ii) U of M is not then in an uncured material breach of this Agreement unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (ii) shall continue in the event Google begins to act in good faith in the performance of such obligation again); and (iii) U of M’s FTEs are less than 60,000. Following such twenty-five (25)-year period, or earlier if any condition in (i), (ii), or (iii) is not met, Google shall provide to U of M a yearly subsidy credited against the annual subscription price of a version of the Institutional Subscription product that is limited to all of the Books and Inserts contained in the Institutional Subscription Database (or, if such Institutional Subscription product is offered in combination with other Google products, the portion of the total annual subscription price attributable to the Institutional Subscription product that is limited to all of the Books and Inserts contained in the Institutional Subscription Database) up to the full annual subscription price of such version of the Institutional Subscription equal to the price of one FTE for every fifty (50) Library Works that (A) were Digitized by Google from the Available Content or provided by U of M to Google in Digitized form under this Agreement and (B) are included in the Institutional Subscription Database. In the event Google prices the annual subscription to such version of the Institutional Subscription other than on an FTE-basis, Google shall provide an equivalent subsidy to U of M credited against such annual subscription price. The percentage discount computed pursuant to this paragraph (a) is referred to herein as the “Applicable Discount;” for clarification, the Applicable Discount would be 100% during any period that the first sentence of this paragraph (a) applies and results in no charge to U of M. The subsidy for any Institutional Subscription term shall be calculated once per year on the date of commencement of the Institutional Subscription term and on each yearly anniversary thereof. If Google is offering a version of the full Institutional Subscription product that does not contain advertising to Higher Education Institutions, it shall make such version available to U of M pursuant to this paragraph.

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L UM 04.4.08.2

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(b) Non-Settlement Works.

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L UM 04.4.08.2.1

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(i) Discount. If Google offers a subscription product or service in the United States that allows Higher Education Institutions access to and viewing of the full text of individual in-copyright works not subject to the Settlement Agreement for such institutions’ users in the United States (whether such product is offered alone or in combination with the Institutional Subscription) (the “Non-Settlement Subscription”), and provided that either (a) Google has Digitized or received from U of M in Digitized form at least five (5) million works from the Available Content, or (b)(1) Google has Digitized or received from U of M in Digitized form at least 3 million works from the Available Content, (2) U of M has made and is continuing to make all works in the Available Content accessible (or would have made such works available for Digitization but did not do so due to their condition, size, binding tightness, or other physical characteristics) to Google at a reasonable rate (the “reasonableness” of the rate will take into account the number of works remaining in the Available Content that Google desires to Digitize, Google’s then-current ability to process such works and any operational issues or issues beyond the reasonable control of U of M that may result in variations in the rate or delays) unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (2) shall continue in the event Google begins to act in good faith in the performance of such obligation again), and (3) U of M is not then in an uncured material breach of this Agreement unless Google is not then acting in good faith in the performance of any material obligation under this Agreement (provided, however, that such condition in clause (3) shall continue in the event Google begins to act in good faith in the performance of such obligation again); then Google shall offer to U of M the right to subscribe to, at U of M’s option, (1) such Non-Settlement Subscription at an annual subscription price equal to the annual subscription price of such Non- Settlement Subscription (or, if the Non-Settlement Subscription is offered in combination with the Institutional Subscription, the portion of the total annual subscription price attributable to the Non-Settlement Subscription) less: the Applicable Discount computed under clause (a) above for the comparable period, times the annual subscription price of such Non-Settlement Subscription (or, if the Non-Settlement Subscription is offered in combination with the Institutional Subscription, the portion of the total annual subscription price attributable to the Non-Settlement Subscription), and times a percentage to be mutually agreed by Google and U of M that will be based upon the percentage value provided by the Non-Settlement Works relative to the entire content in the Non-Settlement Subscription and which percentage may not be greater than the percentage that the number of works in the Non-Settlement Subscription that are Non-Settlement Works represents of the total number of works in the Non-Settlement Subscription. (For purposes of the Section, a “Non-Settlement Work” shall mean an in-copyright work not subject to the Settlement Agreement that (i) is contained in the Available Content and (ii) either (A) is published on or before January 5, 2009 and was Digitized from the collection of any Participating Library (and such Digital Copy is used to provide access to such work within the Non-Settlement Subscription) or (B) is published after January 5, 2009 and was Digitized from the Available Content (and such Digital Copy is used to provide access to such work within the Non-Settlement Subscription)); or (2) access through such Non-Settlement Subscription solely to such portion of the works in such Non-Settlement Subscription that are works in the Available Content at an annual subscription price equal to the annual subscription price of such Non-Settlement Subscription (or, if the Non-Settlement Subscription is offered in combination with the Institutional Subscription, the portion of the total annual subscription price attributable to the Non-Settlement Subscription), times a percentage to be mutually agreed by Google and U of M that will be based upon the percentage value provided by the Non-Settlement Works relative to the entire content in the Non-Settlement Subscription and which percentage may not be greater than the percentage that the number of works in the Non-Settlement Subscription that are Non-Settlement Works represents of the total number of works in the Non-Settlement Subscription, and times: 100% minus the Applicable Discount computed under clause (a) above for the comparable period. If Google is offering a version of the full Non-Settlement Subscription that does not contain advertising to Higher Education Institutions, it shall make such version available to U of M pursuant to this paragraph.

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L UM 04.4.08.2.2

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(ii) Institutional Purchase. If Google offers a product or service that allows Higher Education Institutions to purchase for a fee Online access to and viewing of the full text of individual in-copyright works not subject to the Settlement Agreement for such institutions’ users in the United States (“Institutional Purchase”), for as long as Google is using a Digital Copy of any such work Digitized by Google from the Available Content or provided by U of M to Google in Digitized form to provide such Online access to such work within such Institutional Purchase and such work is not contained in the Non-Settlement Subscription, Google will provide U of M a yearly subsidy equal to the price of access to that work in the Institutional Purchase.

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(b), Agreement UM 4.4.8(b)(ii), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.2.3

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(iii) Foreign Uses. If Google, (A) to the extent authorized by the holder of relevant rights in a particular in-copyright work, includes such work in the Non-Settlement Subscription or uses such work in any other manner in which Protected content is displayed that generates any revenue to Google (other than any use in which such Protected content is provided to users free of charge), in either case in one or more countries other than the United States, and such holder has rights to authorize such uses both within the United States and in such other countries, and (B) such work set forth in (A) is a Non-Settlement Work, then Google will permit U of M, if a subscriber to the Non-Settlement Subscription (or the portion thereof comprising works in the Available Content) as provided in paragraph (i) and/or Institutional Purchase as provided in paragraph (ii), above, to have access to such work through the Non-Settlement Subscription and/or Institutional Purchase (as the case may be) for its users in such other countries (in addition to access for its United States users as contemplated by paragraphs (i) and (ii), above).

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(b), Agreement UM 4.4.8(b)(iii), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.3

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(c) Limited Subscription in Lieu of Discount. If at any time following the date Google or its licensee first makes the Institutional Subscription generally available to Higher Education Institutions, U of M chooses to forego the discount for the Institutional Subscription set forth in Paragraph (a) of this Section, then, for as long as Google or its licensee makes the Institutional Subscription generally available to Higher Education Institutions, Google will offer to U of M a limited subscription service allowing access to only those Books and Inserts contained in the Institutional Subscription Database for which Google or its licensee is using any portion of a Library Scan Digitized by Google from the Selected Content (or provided by U of M to Google) to make such Book or Insert available in the Institutional Subscription (the “Limited Subscription”). Google will offer the Limited Subscription to U of M without charge under terms materially similar to those under which it offers the Institutional Subscription to Higher Education Institutions.

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(c), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.4

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(d) Rightsholder Authorization. If, pursuant to authorization from a Rightsholder, Google or its licensee offers to users access to any portion of a Library Scan (other than where access is provided to users free of charge) of which U of M is the source prior to the Effective Date and the Book underlying such Library Scan is not Commercially Available, Google will require the applicable Rightsholder to authorize Google to provide U of M with access to such Library Scan without charge until the date Google makes the Institutional Subscription for Higher Education Institutions, or a beta product thereof, containing the Book on which such Library Scan is based available to U of M. Google shall provide U of M such access to such Library Scan pursuant to this paragraph and shall allow at least the uses and shall be subject to the restrictions set forth in Sections 4.1(d) through (f) of the Settlement Agreement.

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(d), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.5

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(e) Beta Product. Within six (6) months following the date Google or its licensee makes available a Consumer Purchase model or any other revenue model pursuant to the Settlement Agreement that allows access to any portion of any Library Scan of which U of M is the source (other than any model that allows access free of charge to the Book upon which such Library Scan is based), Google shall offer to U of M an Institutional Subscription beta product as authorized pursuant to Section 4.1(g) of the Settlement Agreement.

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(e), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.6

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(f) No Use If No Extension. In the event that:

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(f), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.6.1

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(1) Google does not make the Institutional Subscription offered to Higher Education Institutions generally available and in compliance with Section 7.2(e)(i)(2) of the Settlement Agreement within two (2) years following the date Google first made the Institutional Subscription beta product set forth in Section 4.1(g) of the Settlement Agreement available to any Fully Participating Library or Cooperating Library; and

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(f), Agreement UM 4.4.8(f)(1), Argreement UM, Library Agreement | Comments closed

L UM 04.4.08.6.2

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(2) (i) Google requests that the Registry extend the time of Google’s authorization to support an Institutional Subscription beta product for U of M pursuant to Section 4.1(g) of the Settlement Agreement, and the Registry does not grant such extension request; or (ii) Google makes no such extension request; then Google shall not use (or authorize any third party to use) any portion of a Library Scan of which U of M is a source as part of a Consumer Purchase or any other revenue model pursuant to the Settlement Agreement (other than any model that allows access free of charge to the Book upon which such Library Scan is based) if such Book is not Commercially Available (A) from the date two years following the date Google first made the Institutional Subscription beta product available to any Fully Participating Library or Cooperating Library, (B) until the earlier of (x) the date Google first makes the Institutional Subscription offered to Higher Education Institutions generally available and (y) the date the Registry grants any extension request from Google set forth in paragraph (2) and Google resumes providing the Institutional Subscription beta product, provided that Google will not thereafter cease to provide the Institutional Subscription beta product to U of M until such time as Google first makes the Institutional Subscription offered to Higher Education Institutions generally available.

Also posted in Agreement UM 4, Agreement UM 4.4.8, Agreement UM 4.4.8(f), Agreement UM 4.4.8(f)(2), Argreement UM, Library Agreement | Comments closed

L UM 04.4.09

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Consent to Distribution.

Also posted in Agreement UM 4, Agreement UM 4.4.9, Argreement UM, Library Agreement | Comments closed

L UM 04.4.09.1

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(a) Settlement Works. If (i) Google enters into an agreement with a Rightsholder (or if at the request of U of M, a Rightsholder offers to enter into an agreement with Google and Google declines) pursuant to which such Rightsholder, without charge to Google, grants (or at the request of U of M, offers to grant) Google the right to copy and distribute Digital Copies of a Book of such Rightsholder without charge to users (and the right to sublicense such rights) (provided such Rightsholder holds rights in the Book sufficient to grant Google all such rights), and (ii) a Digital Copy of such Book is contained in the U of M Digital Copy, then for as long as Google has (or for as long as such Rightsholder offered to grant) such rights to copy and distribute set forth in clause (i) and subject to the terms of the Library-Registry (Fully Participating) Agreement, applicable law and authorization from the Rightsholder, U of M may distribute the Digital Copy of such Book contained in the U of M Digital Copy in accordance with all the terms and conditions set forth in Section 4.4.4 of this Agreement that are applicable to U of M’s ability to distribute public domain works until such Book rises into the public domain.

Also posted in Agreement UM 4, Agreement UM 4.4.9, Agreement UM 4.4.9(a), Argreement UM, Library Agreement | Comments closed

L UM 04.4.09.2

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(b) Non-Settlement Works. If (i) Google enters into an agreement with the rightsholder of an in-copyright work not subject to the Settlement Agreement (or if at the request of U of M, the rightsholder offers to enter into an agreement with Google and Google declines) pursuant to which such rightsholder, without charge to Google, grants (or at the request of U of M, offers to grant) Google the right to copy and distribute Digital Copies of such work without charge to users (and the right to sublicense such rights) (provided such rightsholder holds rights in the work sufficient to grant Google all such rights), and (ii) a Digital Copy of such work is contained in the U of M Digital Copy, then for as long as Google has (or for as long as such rightsholder offered to grant) such rights to copy and distribute set forth in clause (i) and subject to applicable law and authorization from the rightsholder, U of M may distribute the Digital Copy of such work contained in the U of M Digital Copy in accordance with all the terms and conditions set forth in Section 4.4.4 of this Agreement that are applicable to U of M’s ability to distribute public domain works until such work rises into the public domain.

Also posted in Agreement UM 4, Agreement UM 4.4.9, Agreement UM 4.4.9(b), Argreement UM, Library Agreement | Comments closed

L UM 04.4.10

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Personal Uses. If (a) Google enters into an agreement with a rightsholder of an in copyright work not subject to the Settlement Agreement regarding the display of Protected content from such work and (b) pursuant to such agreement Google makes any use in a Non-Settlement Subscription service or a service similar to the Consumer Purchase service (other than any use whereby access is provided to users free of charge) of a Digital Copy of such work Digitized by Google from the Selected Content or provided to Google by U of M in Digitized form under this Agreement, then the terms of service, authorization or license for such service(s) shall not prohibit any personal, non-commercial uses of such work that would otherwise be permitted under the Copyright Act (or applicable foreign copyright law) without the need for express authorization from the rightsholder and would not be in violation of other applicable laws.

Also posted in Agreement UM 4, Agreement UM 4.4.10, Argreement UM, Library Agreement | Comments closed