Category Archives: Article 01

DEFINITIONS

As used in this Amended Settlement Agreement and in other agreements that refer to the definitions in this Amended Settlement Agreement, the following terms are defined as set forthbelow. Additional terms are defined elsewhere in this Amended Settlement Agreement.

“Access Uses” means uses that may display Protected material from a Book or Insert to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display, Front Matter Display or Preview Uses. Institutional Subscriptions, Consumer Purchase and the Public Access Service are the only Access Uses authorized as of the Effective Date.

“Accommodated Service” has the meaning set forth in Section 7.2(g) (Accommodated Service).

“Action” means The Authors Guild, Inc., et al. v. Google Inc., Case No.05 CV 8136 (S.D.N.Y.).

“Additional Contemplated Rightsholder Services Provider ” has the meaning set forth in Section 3.7 (Contemplated Rightsholder Services).

“Adjunct Product” has the meaning set forth in Section 4.1(a)(ix) (Adjunct Products).

“Administrative Costs” means the reasonable costs of (a) preparing and providing notice to the Settlement Class pursuant to the Article XII ( Class Notice Program) or as otherwise ordered by the Court; (b) setting up and operating the Settlement Administration Program and the Registry; and (c) any escrow fees paid to the Depository Bank and payments to an independent third party for services and expenses in connection with administration of the Settlement Fund, including the preparation and mailing of tax forms and tax returns.

“Advertising Uses” has the meaning set forth in Section 3.14 (Advertising Uses).

“Affiliate” of an entity means any legally recognizable entity that directly or indirectly Controls, is Controlled by, or is under common Control with such first entity, where “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies, whether through the ownership of voting shares, by contract, or otherwise, for so long as such Control exists.

“Affiliate Program” has the meaning set forth in Section 4.5(b)(v) (Sale of Consumer Purchases through Affiliate Programs and Resellers).

“Alternative Accommodated Service Provider” has the meaning set forth in Section 7.2(g)(ii)(2) (Alternative Accommodated Service Provider).

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).

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

“Associational Plaintiffs” means The Authors Guild, Inc. and the Association of American Publishers, Inc.

“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 Google’s Board of Directors and its executive officers, and the departments, agencies and instrumentalities of the United States Government, and the Court.

“Audited Party” has the meaning set forth in Section 8.2(c)(i) (Audited Parties).

“Arbitrator” has the meaning set forth in Section 9.3(a) (AAA Arbitration).

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

“Author-Publisher Procedures” means the document attached hereto as Attachment A (Procedures Governing Author Sub-Class and Publisher Sub-Class Under the Amended Settlement Agreement).

“Book” means a written or printed work that (a) if a “United States work,” as defined in 17 U.S.C. § 101, has been registered with the United States Copyright Office as of the Notice Commencement Date, (b) on or before the Notice Commencement Date, was as of January 5, 2009 (a) had been published or distributed to the public or made available for public access as a set of written or printed sheets of paper bound together in hard copy form under the authorization of the work’s U.S. copyright owner, and (c) as of the Notice Commencement Date, is (b) was subject to a Copyright Interest, and (c) (1) if a “United States work,” as defined in 17 U.S.C. § 101, was registered with the United States Copyright Office and (2) if not a United States work, either (x) was registered with the United States Copyright Office, or (y) had a place of publication in Canada, the United Kingdom or Australia, as evidenced by information printed in or on a hard copy of the work. Relevant information printed in or on a hard copy of the work may include, for example, a statement that the book was “Published in [Canada] or [the UK] or [Australia],” or the location or address of the publisher in one of those three countries. The term “Book” does not include: (i) Periodicals, (ii) personal papers (e.g., unpublished diaries or bundles of notes or letters), (iii) written or printed works in which more than thirty-fivetwenty percent (3520%) of the pages of text (not including tables of contents, indices, blank pages, title pages, copyright pages and verso pages) contain more than fiftytwenty percent (5020%) music notation and, with or without lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature), (iv) written or printed works in, or as they become in, the public domain under the Copyright Act in the United States, or (v) Government Works, or (vi) calendars. References in this Settlement Agreement to a Book include all Inserts contained in the Book, except where this Settlement Agreement provides otherwise.

“Book Annotation” means user-generated text that is both (a) associated with the content on the page of a Book and (b) displayed on or over any web page on which a page of a Book appears.

“Books Database ” has the meaning set forth in Section 3.1(b)(ii) (Books Database).

“Business Day” means any day other than Saturday, Sunday, New Year’s Day, the observance of the Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day and any other day appointed as a federal or New York state holiday.

“Cash Payment” has the meaning set forth in Section 5.1(a) (Cash Payments).

“Charter” means the certificate of incorporation and bylaws of the Registry.

“Claim” has the meaning set forth in Section 10.1(a) (Claim).

“Claim Form” has the meaning set forth in Section 13.1 (Registration and Completing Claims).

“Claimant” has the meaning set forth in Section 13.1 (Registration and Completing Claims).

“Class Counsel” means the firms of Boni & Zack LLC, Milberg LLP, and Kohn, Swift & Graf, PC, as counsel for the Author Sub-Class, and the firm of Debevoise & Plimpton LLP, as counsel for the Publisher Sub-Class.

“Class Notice Program” means the class notice program described in Article XII (Class Notice Program).

“Collection” means the Books held by a Fully Participating Library or aCooperating Library that have been Digitized or are targeted for Digitization pursuant to a Digitization Agreement between Google and such Fully Participating Library or such Cooperating Library, which Books may be some or all of such Fully Participating Library’s or such Cooperating Library’s holdings.

“Commercially Available” means, with respect to a Book, that theRightsholder of such Book, or such Rightsholder’s designated agent, is, at the time in question, offering the Book (other than as derived from a Library Scan) for sale new, from sellers anywhere in the world, through one or more then-customary channels of trade into purchases within the United States., Canada, the United Kingdom or Australia.

“Competent Authority” means an individual who is employed in one of the professional occupations that is qualified to diagnose Print Disabilities under the federal law and regulations that govern the National Library Service for the Blind and Physically Handicapped or is licensed or otherwise certified or authorized under applicable state law or regulations to diagnose the existence of a Print Disability pursuant to standard and generally accepted methods of clinical evaluation.

“Confidential Information ” has the meaning set forth in Section 15.1 (Confidential Information).

“Consumer Price Index ” has the meaning set forth in Section 8.2(c)(iii) (Adjustment to Audit Costs).

“Consumer Purchase” and “Consumer Purchases” mean a service provided by Google that allows a user, for a fee, to access and view Online the full contents of a Display Book, as specified in and subject to Section 4.2 (Consumer Purchases).

“Consumer Subscription” has the meaning set forth in Section 4.7(d) (Consumer Subscription Models).

“Contemplated Rightsholder Services” means Consumer Purchases and Institutional Subscriptions.

“Continuous Preview” has the meaning set forth in Section 4.3(c)(iii) (Continuous Preview).

“Cooperating Library” means any library physically located in the UnitedStates and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry), (b) provides Books to Google for Digitization but agrees that Google will not provide to such library a Digital Copy of such Books unless otherwise authorized by the Rightsholder, (c) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by Google to such library or that such library receives from Google in the future, and (d) enters into a Library-Registry(Cooperating) Agreement.

“Copyright Act” means the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq.

“Copyright Interest” means (a) ownership (including joint ownership) of a United States copyright interest or (b) an exclusive license of a United States copyright interest, in each case only if and to the extent the interest is implicated by a use that is authorized or for which compensation could be payable under this Settlement Agreement.

“Coupling Requirement” has the meaning set forth in Section 3.5(b)(iii) (Coupling Requirement).

“Court” means the U.S. District Court for the Southern District of New York.

“Decision” has the meaning set forth in Section 9.7 (Decision).

“Depository Bank” means Citizens Bank.

“Designated Representative” means a Person designated from time to time by the Fully Participating Libraries and the Cooperating Libraries pursuant to Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement and Attachment 1 to Exhibit C of the Library-Registry (Cooperating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) to convey to Google and/or the Registry, as applicable, instructions, decisions and positions of the Fully Participating Libraries and the Cooperating Libraries, or only the Fully Participating Libraries, as the case may be, on matters to which Section 7.4(a) (Designated Representative and Security Representatives) of this Amended Settlement Agreement refers.

“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).

“Digital Copy” of a Book or Insert means a set (or portion thereof) of electronic files created by or for Google or provided to Google59) in connection with [GBS](nylssites.wpengine.com/thepublicindex/archives/category/settlement/s-1/s-1-60, including the image files of the individual pages of the Book or Insert along with text (currently generated from OCR technology), coordinate information for the text, information about the ordering of pages along with page-level metadata such as page number and other similar information, regardless of the means or technology used to prepare such copy, whether now known or hereafter developed, and any digital copy of such set of electronic files.

“Digitization Agreement” means an agreement between Google and a library to Digitize works held by that library, as such agreement may be amended from time to time.

“Digitize” means to convert a work from a hard copy (not including microform) format into an electronic representation, using any means and any technology, whether now known or hereafter developed, including making necessary technical adaptations to achieve such conversion (but not including adapting or altering the content of such written work). “Digitization,” “Digitizing” and “Digitized” have corresponding meanings.

“Display Books” means Books for which one or more Display Uses are authorized pursuant to this Amended Settlement Agreement.

“Display Uses” means the following: Snippet Display, Front Matter Display, Access Uses and Preview Uses.

“Effective Date” means the first date upon which each and all of the following events shall have occurred: (a) the Final Approval Date has occurred; (b) the Court has entered the Final Judgment and Order of Dismissal with prejudice as to Google against Plaintiffs and all Rightsholders; and (c) the time for any appeal from the Final Judgment and Order of Dismissal in the Action and the Court’s approval of this Amended Settlement Agreement has expired, or, if appealed, the Final Judgment and Order of Dismissal has been affirmed in its entirety by the court of last resort to which any such appeal has been taken and such affirmance has become no longer subject to further appeal or review. Neither Rule 60 of the Federal Rules of Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into consideration in calculating the abovestated time periods.

“Entire Insert” means an Insert that is an entire work, including forewords, afterwords, introductions, entire works included in anthologies, and entire poems, short stories, song lyrics or essays.

“Expression” means either (a) Protected expression, which, in the case of text, means no fewer than three (3) contiguous words, or (b) any contiguous set of ten (10) or more words from a Book or Insert, not counting expression that is not Protected.

“Fiction” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).

“Final Approval Date” means the date the Court has certified the Amended Settlement Class and approved this Amended Settlement Agreement in all respects, pursuant to Rule 23 of the Federal Rules of Civil Procedure.

“Final Fairness Hearing” has the meaning set forth in Article XIV (Final Fairness Hearing).

“Final Settlement Deposit” has the meaning set forth in Section 5.3(b) (Final Settlement Deposit).

“Fixed Preview” has the meaning set forth in Section 4.3(b)(iii) (Fixed Preview).

“Front Matter Display” means the display to users of Google Products and Services of one or more of the title page, copyright page, table of contents, other pages that appear prior to the table of contents at the front of the Book, and indexes of a Book.

“Fully Participating Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that (a) has signed or signs a Digitization Agreement with Google not later than two (2) years after the Effective Date (unless an extension of such time is approved by the Registry and (b) enters into a Library-Registry (Fully Participating) Agreement.

“Google” means Google Inc. and its Affiliates.

“Google Book Search,” or “GBS,” means the program(s) pursuant to which Google, having Digitized works obtained pursuant to the Google Partner Program, the GLP or other means authorized by the Book’s Rightsholder or the Registry (or having obtained works in Digitized form through such programs or other means authorized by the Book’s Rightsholder or the Registry), transmits Online (a) information about such works and (b) portions of, and in some cases all of, the Digitized works, whatever such program(s) may be called by Google from time to time.

“Google Library Project” or the “GLP” means the program(s) pursuant to which Google obtains Books and other works from libraries or other sources (including through Books drives, from Rightsholders directly or elsewhere, but not including the Google Partner Program, for the purposes of Digitizing them (if not obtained in Digitizing form) and including them in GBS, whatever such program(s) may be called by Google from time to time.

“Google Partner Program” means the program(s) pursuant to which Persons who have Copyright Interests in works contract with Google (other than by operation of this Amended Settlement Agreement to grant to Google the right to include such works in GBS, whatever such program(s) may be called by Google from time to time.

“Google Products and Services” means any and all products and services offered to the public by Google directly or indirectly through third parties from time to time, now or in the future, whereby Google makes information accessible to a user Online, using any means and any technology, whether now known or hereafterdeveloped. Google Products and Services include GBS.

“Government Works” means written or printed works covered by Section 105 of the Copyright Act or state law equivalents thereto.

“Gross Revenues” has the meaning set forth in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models).

“Higher Education Institution” means an Institution of Higher Education, as defined by the Carnegie Classifications of Institutions of Higher Education from time to time or, if and when the Carnegie Foundation for the Classification of Teaching is no longer classifying colleges and universities in the United States, as such term or its successor term is defined by any successor classification system used to classify colleges and universities in the United States.

“Host Site” means an institution authorized under this Amended Settlement Agreement to host the Research Corpus pursuant to the requirements of Section 7.2(d)(ii) (Host Sites).

“Host Site-Registry Agreement ” has the meaning set forth in Section7.2(d)(ii) (Host Sites).

“Hosting Fully Participating Library” has the meaning set forth in Section 7.2(b)(ixx)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).

“Inconsequential Breach” means a breach that (a) is not the result of reckless, willful or intentional misconduct by Google, a Host Site or a Fully Participating Library, (b) does not lead to, or present an immediate risk of, any Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, (c) does not represent an extensive or systematic failure to comply with the Security Standard or the applicable then-current Security Implementation Plan and (d) when identified, is promptly corrected or cured.

“Initial Settlement Deposit” has the meaning set forth in Section 5.3(a) (Initial Settlement Deposit).

“Insert” means the following content, if and to the extent such content is independently Protected by the Copyright Act and, if a “United States work” as defined in 17 U.S.C. § 101, is covered by a registration with the United States Copyright Office as of the Notice Commencement Date,January 5, 2009, either as a stand-alone work or as part of another, registered work from which it was excerpted, and is either (a) contained in a Book if there is no Person who has a Copyright Interest in such content andas well as a Copyright Interest in such Book’s Principal Work, (b) contained in a Public Domain Book, or (c) contained in a Government Work that, on or before the Notice Commencement Date,January 5, 2009 was published or distributed to the public or made available for public access: (i) text, such as forewords,afterwords, prologues, epilogues, essays, poems, quotations, letters, song lyrics, or excerpts from other Books, Periodicals or other works; and(ii) children’s Book illustrations; (iii) musical notation (i.e., notes on a staff or tablature); and (iv) tables, charts and graphs. The term “Insert” does not include (1) pictorial works, such as photographs, illustrations (other than children’s Book illustrations), maps or , paintings, or music notation (i.e., notes on a staff or tablature)or (2) works that are in, or as they become in, the public domain under the Copyright Act in the United States.

“Institutional Consortium” means a group of libraries, companies, institutions or other entities located within the United States that is a member of the International Coalition of Library Consortia with the exception of Online Computer Library Center (OCLC) – affiliated networks.

“Institutional Subscription” means any service of a limited duration provided by Google to an institution for a fee that allows Online access to and viewing of the full contents of the Institutional Subscription Database, as specified in and subject to Section 4.1 (Institutional Subscriptions).

“Institutional Subscription Database” has the meaning set forth in Section 4.1(a)(v) (Versions of Institutional Subscriptions).

“ISBN” means International Standard Book Number or, if and when ISBNs are no longer being issued, the number issued pursuant to any successor system used internationally to uniquely identify books and books-like products.

“Library Building” means a building physically located in the United States that, in whole or in part, is used by a Public Library and the part so used is predominantly used for the storage of, and access to, such Public Library library books or library services.

“Library Digital Copy” or “LDC” means the set (or portion thereof) of all Digital Copies of Books in a Fully Participating Library’s Collection, which Digital Copies are made by copying the Library Scan (or are otherwise made pursuant to Section 7.2(a) (Making of Library Digital Copies)), and which Google provides to the Fully Participating Library.

“Library Link” means a link placed on pages in Google Book Search dedicated to a single Library Work that directs a user to existing Online sources, which, free of charge to the user (and with no out-of-pocket payments by Google to third-party providers of such sources), assists such user in finding that Library Work in a library.

“Library-Registry Agreement” means an agreement substantially similar in form to one of the agreements attached hereto as Attachment B (Form of Library- Registry Agreements) between the Registry and a Fully Participating Library, Cooperating Library or Public Domain Library. The Library-Registry (Fully Participating) Agreement attached hereto as Attachment B-1 is for Fully Participating Libraries. The Library-Registry (Cooperating) Agreement attached hereto as Attachment B-2 is for Cooperating Libraries. The Library-Registry (Public Domain) Agreement attached hereto as Attachment B-3 is for Public Domain Libraries.

“Library Scan” means the Digital Copy of a Library Work Digitized by or for Google or by or for a Fully Participating Library or a Cooperating Library and received by Google, and all Digital Copies of such Digital Copy.

“Library Work” means a Book that a Fully Participating Library or a Cooperating Library makes available to Google, either in hard copy (not including microform) format to be Digitized, or in a form Digitized by or for such Fully Participating Library or Cooperating Library, for the Google Library Project.

“Limited Subscription” means an Institutional Subscription offered to a library that allows the subscribing library access only to the Books Digitized from that library, or only to the Books held by that library.

“List Price” means the then-current price for Institutional Subscriptions and Consumer Purchases determined in accordance with Sections 4.1 (Institutional Subscriptions) and 4.2 (Consumer Purchases), respectively.

“Metadata” means data that describes other data (e.g., a library catalog of publications and the author, title, publisher, ISBN, and date of publication of the publications in the catalog are all types of Metadata).

“Net Advertising Revenues” means, subject to Section 4.5(b) (Discounting, Special Offers and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google for Advertising Uses displayed to U.S. users, less ten percent (10%) for Google’s operating costs.

“Net Purchase Revenues” means, subject to Section 4.5(b) (Discounting, Special Offers and Subsidies) and Section 4.6(b) (Exceptions), the revenues actually received by Google from subscribers or purchasers within the U.S. from all Revenue Models other than Advertising Uses, less ten percent (10%) for Google’s operating costs.

“No Display Books” are Books for which no Display Uses are authorized pursuant to this Amended Settlement Agreement.

“No Preview” has the meaning set forth in Section 4.3(b)(ii) (No Preview).

“Non-Consumptive Research” means research in which computational analysis is performed on one or more Books, but not research in which a researcher reads or displays substantial portions of a Book to understand the intellectual content presented within the Book. Categories of Non-Consumptive Research include:

(a) Image Analysis and Text Extraction – Computational analysis of the Digitized image artifact to either improve the image (e.g., de-skewing) or extracting textual or structural information from the image (e.g., OCR).

(b) Textual Analysis and Information Extraction – Automated techniques designed to extract information to understand or develop relationships among or within Books or, more generally, in the body of literature contained within the Research Corpus. This category includes tasks such as concordance development, collocation extraction, citation extraction, automated classification, entity extraction, and natural language processing.

(c) Linguistic Analysis – Research that performs linguistic analysis over the Research Corpus to understand language, linguistic use, semantics and syntax as they evolve over time and across different genres or other classifications of Books.

(d) Automated Translation – Research on techniques for translating works from one language to another.

(e) Indexing and Search – Research on different techniques for indexing and search of textual content.

“Non-Display Uses” means uses that do not display Expression from Digital Copies of Books or Inserts to the public. By way of example, display of bibliographic information, full-text indexing without display of Expression (such as listing the number or location of search matches), geographic indexing of Books, algorithmic listings of key terms for chapters of Books, and internal research and development using Digital Copies are all Non-Display Uses.

“Not Counted Library Work” means any Library Work with respect to the Library Scan of which Google has reasonable quality, legal, or technical concerns that are not solely editorial-based concerns.

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

“Notice Commencement Date” means the first date of the Class Notice Program, as agreed between Plaintiffs and Google and approved by the Court.January 5, 2009.

“OCR” means optical character recognition.

“Online” means over the Internet or other data or communication network, with or without caching, through a browser or other computer program used for accessing sites or information on a network.

“Online Book Page” means any page in Google Products and Services dedicated to a single Book, including any Preview Use page, any Snippet Display page, any page of a Book displayed in Google Products and Services, and search results pages resulting from a search within a single Book. Any general search results page in which the search is performed over multiple Books and/or over other content such as web pages in response to a user query is not considered to be a page dedicated to a single Book, even if a single Book is the sole search result of a given search on the search results page.

“Opt-Out Deadline” means the deadline fixed by the Court to opt out of the Settlement pursuant to Rule 23 of the Federal Rules of Civil Procedure.

“Other Library” means a library physically located within the United States and organized as or within a not-for-profit or government entity that has signed a Digitization Agreement with Google, but has not entered into a Library-Registry Agreement.

“Partial Insert” means an Insert other than an Entire Insert.

“Participating Libraries” means Fully Participating Libraries, Cooperating Libraries, Public Domain Libraries and Other Libraries.

“Periodical” means a newspaper, magazine, comic book, or journal and any other publication (a) that is published at a stated frequency with the intent to continue publication indefinitely; (b) whose continuity shows from issue to issue (e.g., by serialization of articles or by successive issues carrying the same style, format, theme, or subject matter); (c) whose primary purpose is to transmit information; (d) whose content consists of original or reprinted articles on one topic or many topics, listings, photographs, illustrations, graphs, a combination of advertising and nonadvertising matter, comic strips, legal notices, editorial material, cartoons, or other subject matter; and (e) for which the primary distribution of each issue is made before that of each succeeding issue.; including any book form compilation of any of the foregoing.

“Person” means a natural person and any corporation, partnership, limited liability company, association, whether incorporated or not, and any other entity organized under [United States]https://nylssites.wpengine.com/thepublicindex/archives/category/settlement/s-1/s-1-160) federal or state law, or under foreign law.

“Plaintiffs” means Representative Plaintiffs and Associational Plaintiffs.

“Plan of Allocation” means the Plan of Allocation attached hereto as Attachment C (Plan of Allocation).

“Preview Uses” means uses that may display Protected material from a Book to users of Google Products and Services in addition to material that is allowed to be displayed in Snippet Display or Front Matter Display, as specified in and subject to Section 4.3 (Preview Uses).

“Price Change Cut Off Date” has the meaning set forth in Section 4.1(a)(viii)(2) (Registry Proposed Adjustments).

“Pricing Algorithm” has the meaning set forth in Section 4.2(b)(i)(2) (Settlement Controlled Price).

“Pricing Bin” has the meaning set forth in Section 4.2(c)(i) (Pricing Bins).

“Pricing Strategy ” has the meaning set forth in Section 4.1(a)(vi) (Pricing Strategy).

“Principal Work” means a Book’s principal written work. A Principal Work can be a collective work, such as a collection of short stories or plays. A Book contains only one Principal Work but may contain other text, such as a foreword, afterword and annotations. A foreign language translation or an abridged version of a Principal Work is a different Principal Work. Two (2) or more Books that contain the same Principal Work but that each contains different or additional Protected Expression are considered to be different Books. By way of example, two (2) Books that have the same Principal Work (e.g., The Old Man and the SeaTo Kill a Mockingbird) but have different forewords or additional annotations (e.g., the Hueber VerlagJ.B. Lippincott and the ScribnerHarper Collins editions) are different Books under this Amended Settlement Agreement. A hard cover Book and a soft cover Book may have the same Principal Work, but are considered different Books under this Amended Settlement Agreement (even if they contain no additional matter) if the hard cover Book and the soft cover Book have different ISBNs.

“Print Disability” means any condition in which a user is unable to read or use standard printed material due to blindness, visual disability, physical limitations, organic dysfunction, or dyslexia.

“Prohibited Access” means reproduction or display by a Fully Participating Library or Host Site of any Digital Copy of a Book that is prohibited by the applicable Library-Registry Agreement or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.

“Protected,” when used in connection with “works,” “material,” “Expression,” or “content” means works, material, Expression or content as to which a Person has a Copyright Interest under Section 106 of the Copyright Act, without giving effect to Sections 107 through 122 of the Copyright Act.

“Public Access Service” means a service provided by Google to each Public Library and each not-for-profit Higher Education Institution that allows users to search and view the entire then-current Institutional Subscription Database, as specifiedin and subject to Section 4.8 (Public Access Service).

“Public Domain Book” means a written or printed work that would be a “Book” but for the work being in the public domain under the Copyright Act in the United States, without regard to whether such work contains an Insert; provided, however, that, if the work is a “United States work” as defined in 17 U.S.C. § 101, it need not have been registered with the United States Copyright Office to be considered to be a Public Domain Book.

“Public Domain Funds” has the meaning set forth in Section 6.3(b) (Public Domain Funds).

“Public Domain Library” means a library physically located in the United States and organized as or within a not-for-profit or government entity that (a) will not provide materials to Google for Digitization when it knows that those materials are Books, (b) agrees to delete or permanently render unusable promptly any Digital Copies of Books previously provided by [Google](https://nylssites.wpengine.com/thepublicindex/archives/category/settlement/s-1/s-1-59( to such library or that such library receives from Google in the future, and (c) enters into a Library-Registry (Public Domain) Agreement.

“Public Library” means a library that (a) is accessible by the public, (b) is, or is part of, a not-for-profit or government-funded institution other than a not-for-profit or government-funded institution that is classified under the Carnegie Classification of Institutions of Higher Education, and (c) allows patrons to take books and other materials off the premises but may also have non-circulating reference collections or provide other library services; however, “Public Library” does not include any library primarily funded or managed by the federal government or an agency thereof.

“Publisher Sub-Class” means members of the Amended 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.

“Qualified User” means a Person who (a) wishes to conduct Non- Consumptive Research, (b) is (i) affiliated with a Fully Participating Library or a Cooperating Library or (ii) a suitably qualified individual (1) who has the resources to perform such Non-Consumptive Research, (2) who has an affiliation described below, (3) who is pre-registered by a Fully Participating Library or a Cooperating Library (i.e., registered prior to conducting Non-Consumptive Research), and (4) for whose use of the Research Corpus such Fully Participating Library or Cooperating Library takes responsibility, and (c) is bound by an agreement described in Section 7.2(d)(xi)(2) (Research Agenda). A for-profit entity may only be a “Qualified User” if both the Registry and Google give their prior written consent. Except as set forth in the preceding sentence, a Qualified User must have an affiliation with one of the following:

(a) an accredited United States two (2)- or four (4)-year college or university;

(b) a United States not-for-profit research organization, such as a museum, observatory or research lab;

(c) a United States governmental agency (federal, state or local); or

(d) to the extent that an individual does not come within clauses (a) through (c) above in this Section 1.1211.123 (Qualified User), an individual may become a “Qualified User” by demonstrating to a Fully Participating Library or a Cooperating Library that he or she (directly or through the entities with which he or she is affiliated) has the necessary capability and resources to conduct Non-Consumptive Research, provided that such individual (or the entities with which he or she is affiliated) may be required by the Registry to enter into other terms and conditions with respect to such Non-Consumptive Research and the commercial exploitation of any of the results thereof consistent with the restrictions set forth in this Amended Settlement Agreement.

“Registered Rightsholder” means any Person who is a Rightsholder and who has registered with the Registry his, her or its Copyright Interest in a Book or Insert.

“Registry” means the registry established pursuant to Article VI —(Establishment and Charter of Registry). In addition, the term “Registry” means the Settlement Administrator until such time as the Registry is fully operational.

“Removed” means, with respect to a Book that is removed pursuant to Section 3.5(a) (Right to Remove) and subject to Section 3.5(b)(vi) (Continuing Obligations), that Digital Copies of such Book are not accessible (including through the Research Corpus), other than on back-up tapes or other electronic back-up storage media. ,“Remove” and “Removal” have corresponding meanings.

“Representative Plaintiffs” means the following Persons, who, subject to Court approval, represent the Author Sub-Class: Paul Dickson, Joseph Goulden, Daniel Hoffman, Betty Miles, and Herbert Mitgang, Maureen Duffy, Daniel Jay Baum, Margaret Drabble and Robert Pullan; and the following Persons, who, subject to Court approval, represent the Publisher Sub-Class: The McGraw-Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc., and John Wiley & Sons, Inc., Harlequin Enterprises Limited, Macmillan Publishers Limited, Melbourne University Publishing Limited and The Text Publishing Company.

“Requesting Fully Participating Library” has the meaning set forth in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).

“Required Library Services” has the meaning set forth in Section 7.2(e)(i)(Obligation).

“Required Library Services Requirement” means the requirement set forth in Section 7.2(e)(i)(Obligation).

“Research Agenda” means a document that describes a research project insufficient detail to demonstrate that it will be Non-Consumptive Research.

“Research Corpus” means a set of all Digital Copies of Books made inconnection with the Google Library Project, other than Digital Copies of Books that have been Removed by Rightsholders on or before April 5, 2011 pursuant to Section 3.5 (Right to Remove or Exclude) or withdrawn pursuant to Section 7.2(d)(iv) (Right to Withdraw Library Scans), which Google provides to a Host Site or that Google, if and as a Host Site, uses.).

“Revenue ModelModels” means Institutional Subscriptions, Consumer Purchases,Advertising Uses, Public Access Service and any other revenue models agreed between the Registry and Google pursuant to Section 4.7 ( (NewAdditional Revenue Models).

“Rightsholder” means a member of the Amended Settlement Class who does not opt out of the Settlement by the Supplemental Opt-Out Deadline.

“Rightsholder Releasors” has the meaning set forth in Section 10.1(m) (Rightsholder Releasors).

“Security Implementation Plan” means an implementation plan describingthe processes and procedures that Google, a Fully Participating Library, or a Host Site, as the case may be, will employ in order to comply with the Security Standard.

“Security Representatives” has the meaning set forth in Section 8.2(b) (Changes to Security Standard).

“Security Standard” means the security standard set forth in Attachment D (Security Standard).

“Settlement” means the settlement of the Action as set forth in this Settlement Agreement.

“Settlement Administration Program” means the Settlement administration program described in Article XIII (Settlement Administration Program).

“Settlement Administrator” means Rust Consulting, Inc.

“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). “Settlement Agreement” means the original Settlement Agreement and all of its attachments, as filed with the Court on October 28, 2008.

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

“Settlement Class ” means all Persons that, as of the Notice Commencement Date, 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 officers.

“Settlement Controlled Price” has the meaning set forth in Section 4.2(b)(i)(2) (Settlement Controlled Price).

“Settlement Discussions Confidentiality Agreement ” means the Settlement Discussions Confidentiality Agreement dated August 18, 2006 between Google andcertain representatives of Plaintiffs.

“Settlement Fund ” means the Initial Settlement Deposit, the Final Settlement Deposit and the Supplemental Deposit, and all interest accrued thereon. The Settlement Fund will be held and administered in an account at the Depository Bank.

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

“Snippet Display” means uses that display to users of Google Products and Services up to three (3) “snippets” (each snippet being about three (3) to four (4) lines of text) per search term per user.

“Standard Preview” has the meaning set forth in Section 4.3(b)(i)(1) (Standard Preview).

“Specified Price” has the meaning set forth in Section 4.2(b)(i)(1) (Specified Price).

“Standard Revenue Split for Advertising” has the meaning set forth in Section 4.5(a)(ii) (Net Advertising Revenues).

“Standard Revenue Split for Purchases” has the meaning set forth in Section 4.5(a)(iii) (Net Purchase Revenues).

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

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

“Supplemental Deposit” has the meaning set forth in Section 5.3(c) (Supplemental Deposit).

“Third-Party Required Library Services Provider” has the meaning set forth in Section 7.2(e)(ii) (Third-Party Required Library Services Provider).

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

“Third-Party Unauthorized Access ” means any access (other than Prohibited Access) by any third party to any Digital Copy of a Book that is not authorized by this Amended Settlement Agreement, the applicable Library-Registry Agreement, or the applicable Host Site-Registry Agreement, and is not otherwise authorized by the Rightsholder.

“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.

“Unauthorized Access” means any display or reproduction in the United States by Google of any Digital Copy of a Book or Insert that is not authorized by this Amended Settlement Agreement or the Rightsholder.

“Unclaimed Funds – Non-Subscription Works Fiduciary” has the meaning set forth in Section 6.3(a)(i) (Unclaimed Funds-Non-Subscription Revenue Models). 6.2(b) (Organizational Structure).

“Unclaimed Funds – Subscription” has the meaning set forth in Section 6.3(a)(ii) (Unclaimed Funds-Subscription Revenue Models).

“Unclaimed Funds” means has the meaning set forth in Section 6.3(a)(Unclaimed Funds – Non-Subscription and Unclaimed Funds – Subscription).

“United States” or “U.S.” means the states and territories, the District of Columbia, and the possessions of the United States of America.