Category Archives: Agreement UM 4.4.4

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Argreement UM, Library Agreement | Comments closed

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.4(a), Argreement UM, Library Agreement | Comments closed

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.4(b), Argreement UM, Library Agreement | Comments closed

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.4(c), Argreement UM, Library Agreement | Comments closed

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.4(d), Argreement UM, Library Agreement | Comments closed

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.4(e), Argreement UM, Library Agreement | Comments closed

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.

Also posted in Agreement UM 4, Agreement UM 4.4, Agreement UM 4.4.4(f), Argreement UM, Library Agreement | Comments closed