Category Archives: Settlement

S 0

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WHEREAS, Plaintiffs, individually and on behalf of the Amended Settlement Class, have alleged that Defendant Google Inc. has violated the copyright laws of the United States; and

WHEREAS, Google believes that its conduct was lawful at all times in all respects, and has not admitted any of the allegations of copyright infringement in the complaint or amended complaints filed by Plaintiffs in the Action; and

WHEREAS, certain libraries have granted Google access to their collections with the intention of providing great benefits to researchers and the reading public, and those libraries believe that their conduct was lawful at all times and in all respects; and

WHEREAS, Class Counsel have conducted a thorough investigation into the facts and issues raised in the Action; and

WHEREAS, Class Counsel, while continuing to believe that the claims asserted in the Action have substantial merit, have also weighed the benefits of a possible settlement against the possible outcomes, risks, and delay of continued litigation, including the likelihood of appeals from rulings on the merits in favor of either Plaintiffs or Google; and

WHEREAS, Plaintiffs and Google, in consideration of all of the circumstances and after prolonged and adversarial arms’ length settlement negotiations, wish to settle and finally resolve all actual and potential claims pertaining to the matters asserted in the Action; and

WHEREAS, Plaintiffs and Class Counsel conclude that this Amended Settlement Agreement is fair, reasonable, adequate and in the best interests of the Amended Settlement Class in light of the risks inherent in prosecuting the Action and the benefits obtained under this Amended Settlement Agreement; and

WHEREAS, Plaintiffs and Google further conclude that the Settlement will be of great benefit to copyright owners (including authors and publishers) and to libraries, researchers, and the reading public; and

WHEREAS, Google has agreed to enter into this Amended Settlement Agreement to conclude finally and definitively all claims brought in the Action and to reduce further expense, inconvenience, and the distraction of burdensome and protracted litigation, notwithstanding that Google does not admit any wrongdoing alleged in the Action; and

WHEREAS, Plaintiffs and Google agree to seek certification of the Amended Settlement Class only for settlement purposes.

NOW, THEREFORE, it is agreed by and among the undersigned that the claims of Plaintiffs in the Action shall be settled with Google, subject to approval of the Court as required by Rule 23(e) of the Federal Rules of Civil Procedure, on the following terms and conditions:

Also posted in Article 0 | Comments closed

S 01

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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.

Also posted in Article 01 | Comments closed

S 01.001

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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.

Also posted in Article 01, Section 1.1 | Comments closed

S 01.002

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

Also posted in Article 01, Section 1.2 | Comments closed

S 01.003

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

Also posted in Article 01, Section 1.3 | Comments closed

S 01.004

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

Also posted in Article 01, Section 1.4 | Comments closed

S 01.005

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

Also posted in Article 01, Section 1.5 | Comments closed

S 01.006

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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.

Also posted in Article 01, Section 1.6 | Comments closed

S 01.007

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

Also posted in Article 01, Section 1.7 | Comments closed

S 01.008

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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.

Also posted in Article 01, Section 1.8 | Comments closed

S 01.009

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

Also posted in Article 01, Section 1.9 | Comments closed

S 01.010

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

Also posted in Article 01, Section 1.10 | Comments closed

S 01.011

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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).

Also posted in Article 01, Section 1.11 | Comments closed

S 01.012

One response to “S 01.012”

  1. Gillian Spraggs says:

    The Authors Guild guidelines on eligibility for membership state: ‘Book authors must be published by an established American publisher.’ Huge numbers of foreign authors whose rights would be affected by the settlement (if it is ratified) are not only not members of the Authors Guild; because they have never been published in the US, they are not even eligible to belong to it. I understand (from listening to Pamela Samuelson’s lecture ‘Reflections on the Google Booksearch Settlement’) that before the settlement agreement can be finally ratified by the court, the judge must be satisfied that the plaintiffs are fully representative of the settlement class. Surely this fact by itself makes it clear that they are not, and cannot be.

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

Also posted in Article 01, Section 1.12 | Comments closed

S 01.012

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

Also posted in Article 01, Section 1.12 | Comments closed

S 01.013

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

Also posted in Article 01, Section 1.13 | Comments closed

S 01.013

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“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.

Also posted in Article 01, Section 1.13 | Comments closed

S 01.014

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

Also posted in Article 01, Section 1.11 | Comments closed

S 01.014

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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.

Also posted in Article 01, Section 1.14 | Comments closed

S 01.015

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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).

Also posted in Article 01, Section 1.15 | Comments closed

S 01.016

9 responses to “S 01.016”

  1. ehasbrouck says:

    “a set of written or printed sheets of paper bound together in hard copy form” is far form the common-language meaning of “book”. In the absence of any definition or qualification of “bound” to exclude e.g. saddle-stitching (stapling) as a mode of binding, this definition would include almost all periodicals, even though the notice gives no clue of that, and one reading the notice would assume that only books and not magazines were included. And even if a saddle-stitched collection of sheets is deemed not to be “bound”, there is no meaningful distinction with respect to the mode of binding between magazines such as e.g. National Geographic (clearly a “book” under the settlement) and typical paperback books.

  2. I wondered for a while whether my undergraduate thesis qualified. I printed it out on acid-free paper, then inserted the pages in a clamshell binder. The university then took that copy, indexed it, and stuck it on a shelf somewhere deep deep in their offsite compact storage. “Book?”

    Fortunately for my sanity, I remembered that I hadn’t registered the copyright in it, and thus it fails prong (a) of the test here.

    As to your question, perhaps there’s no meaningful distinction between the paperback and National Geographic in terms of binding, but doesn’t this clause take care of that problem by specifically excluding “periodicals?”

  3. ehasbrouck says:

    “doesn’t this clause take care of that problem by specifically excluding “periodicals?””

    Maybe for National Geographic, but in general no, not as long as (1) the default is that anything “bound” is a “book” (including pamphlets and “ephemera” and handwritten manuscripts and other bound collections of papers that wouldn’t fit any definition of periodical) unless it can be shown to be a periodical, and (b) the definition of periodical is overly vageue and overly narrow.

  4. Gillian Spraggs says:

    “Fortunately for my sanity, I remembered that I hadn’t registered the copyright in it”

    This would not rescue any of us outside the US.

  5. One of the more neglected statements relating to the settlement, the letter of objection from the Spectrum Literary Agency (representing the Heinlein estate and others) , suggests that Google is attempting “to redefine copyright, in that their literature defines in-copyright work as that registered with the copyright office”. So your undergraduate thesis may not be safe from Google’s scanners after all.

  6. From the Objection by D.C. Comics: ‘Google has not made any commitment to refrain from adopting the same “copy first and negotiate later” approach for works deemed outside the scope of the proposed SA (e.g., Periodicals, unregistered works, works registered after the Notice Commencement Date).’ (p. 9 n.9)

  7. Elizabeth Townsend Gard says:

    How are they determining what counts as a “U.S. work”? This seems an unworkable definition. All works published in the U.S.? All works published by U.S. citizens? How has this been defined?

  8. The definition comes from 17 U.S.C. 101, where it depends both on the timing of publication and the domicile of the authors. It’s complex, and not always easy to check, but that’s a wart in U.S. copyright law. The settlement merely inherits that administrative difficulty.

  9. SCanzoneri says:

    It appears to me that under this definition a book with no text, such as a children’s book where the story is told entirely by illustrations, is covered by the settlement.

    However, in the revised settlement agreement children’s book illustrations have been removed from the definition of inserts. So, if a children’s book is written by one person and illustrated by another person, the illustrations are not covered by the agreement.

    What I want to know, at this point, is whether Google is agreeing to exclude from Google Books any copyrighted material not included in the settlement agreement; or is Google going to scan and display this material, and leave it up to the copyright holders to sue?

    There are a lot of books that are pretty much useless without the pictorial works that are excluded from the definition of insert. Clearly this is true of many picture books, where the story is told through the interaction of the words and illustrations; but it is also true of many works for adults. Without illustrations books on architecture and art will be of little use to readers; as will medical texts; how-to books; books on computer programs, graphic design, and photography.

    It seems to me that it is important to determine whether Google is actually going to keep subscribers to Google Books from seeing this material. If so, the “Great Google Library” will be much less useful to many subscribers and thus, less lucrative for both Google and for many rights-holders whose writing is included in the library.

    Also, doesn’t this mean that some class members (e.g., novelists) are likely to benefit far more from the settlement than other class members (e.g., picture book authors) because subscribers will not want to pay for the books that are useless without their pictorial materials ? Can the court approve a settlement where the terms of the settlement agreement will result in some class members benefiting more than others when there is no difference in the alleged damage to different groups of class members? If this was a something like a case against an airline for wrongfully adding a charge to tickets, it would be reasonable to give more money to class members who made more flights; but in this case, haven’t the plaintiffs alleged that all the class members were damaged in the same way? So how can they agree to a settlement that benefits one group of class members more than another group?

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.

Also posted in Article 01, Section 1.16 | Comments closed

S 01.017

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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.

Also posted in Article 01, Section 1.17 | Comments closed

S 01.018

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

Also posted in Article 01, Section 1.18 | Comments closed

S 01.019

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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.

Also posted in Article 01, Section 1.19 | Comments closed

S 01.020

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

Also posted in Article 01, Section 1.20 | Comments closed

S 01.021

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

Also posted in Article 01, Section 1.21 | Comments closed

S 01.022

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

Also posted in Article 01, Section 1.22 | Comments closed

S 01.023

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

Also posted in Article 01, Section 1.23 | Comments closed

S 01.024

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

Also posted in Article 01, Section 1.24 | Comments closed

S 01.025

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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.

Also posted in Article 01, Section 1.25 | Comments closed

S 01.026

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

Also posted in Article 01, Section 1.26 | Comments closed

S 01.027

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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.

Also posted in Article 01, Section 1.27 | Comments closed

S 01.028

One response to “S 01.028”

  1. ehasbrouck says:

    The use of the singular “the Rightsholder” is clearly inappropriate here, since the definition of “Rightsholder” is based on that of “Settlement Class”, which in turn is based on “Copyright Interest” “including joint ownership”. This reflects both an erroneous assumption that rights are unitary and a failure to provide for situations where rights are divided and/or non-exclusive. (I suspect this reflects the legacy of print publishers’ typical false claim to hold all rights, when in fact electronic rights are often retained by worters.) It is, at best, ambiguous whether a work is considered “Commerically Avaailable” (with major implications that distinction would result in under the settlement) if one of the several Rightsholders is offering it for sale, but another is not. This is one of several ways the settlement would intrude improperly on publisher-author relations, susstituing the terms of the settlement for the terms of pre-existing publisher-author contracts.

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.

Also posted in Article 01, Section 1.28 | Comments closed

S 01.029

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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.

Also posted in Article 01, Section 1.29 | Comments closed

S 01.030

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

Also posted in Article 01, Section 1.30 | Comments closed

S 01.031

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

Also posted in Article 01, Section 1.31 | Comments closed

S 01.032

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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).

Also posted in Article 01, Section 1.32 | Comments closed

S 01.033

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

Also posted in Article 01, Section 1.33 | Comments closed

S 01.034

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Contemplated Rightsholder Services” means Consumer Purchases and Institutional Subscriptions.

Also posted in Article 01, Section 1.34 | Comments closed

S 01.035

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

Also posted in Article 01, Section 1.35 | Comments closed

S 01.036

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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.

Also posted in Article 01, Section 1.36 | Comments closed

S 01.037

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

Also posted in Article 01, Section 1.37 | Comments closed

S 01.038

5 responses to “S 01.038”

  1. ehasbrouck says:

    This appears to imply that if nobody has an exclusive interest or exclusive licnse — for example, if the publisher-author contract provides that both the author and the publisher have nonexclusive rights to license electronic copying — than nobody has a “Copyright Interest” for purposes of the settlement. Why this definition? And what happens in such a case?

  2. All copyright interests start off being “exclusive” in the author (or the employer, in the case of a work made for hire). They can be transferred via “exclusive” licenses. Any “nonexclusive” licenses leave the interest where it was. Thus, copyright law subscribes to a kind of law of conservation of interests; they can be moved around, but not destroyed. If the contract gives both publisher and author a “nonexclusive” right to to license electronic copying, then the author is the owner for purposes of this section (since she started off with the interest and never transferred it via “exclusive” license).

  3. ehasbrouck says:

    “If the contract gives both publisher and author a “nonexclusive” right to to license electronic copying, then the author is the owner for purposes of this section (since she started off with the interest and never transferred it via “exclusive” license).”

    I assume that also implies the reverse: If the copyright was registered in the name of the publisher (routine for e.g. academic works), then the publisher is the sole party with a “copyright interest” as defined in the settlement, with sole right to control inclusion or use of the book, even if the publisher-author contract explicitly gave the author nonexclusive e-rights (and perhaps nonexclusive print re-use rights as well).

    So a party who in fact has an interest (economic and otherwise) and contractual rights in a work, might not have an “interest” or any right of control of the use of that work under the settlement.

    (I don’t know if we should attach any significance to the fact that this is probably most common for books from academic publishers (“copyright by the president and fellows of harvard…”) and to the role of academic libraries in the book-scanning.)

  4. If the copyright was registered in the name of the publisher, that typically means that the author has already transferred all her interests to the publisher.

  5. ehasbrouck says:

    Typically, no — most contracts (other than work for hire) assign some rights, often nonexclusive, to the author, even when copyright is registered in the name of the publisher. Yes, absent any other contractual provisions, registration in the name of the publisher would connote exclusive assignment of all rights, but there is usually a more complex division, and often sharing, of rights under a book contract.

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.

Also posted in Article 01, Section 1.38 | Comments closed

S 01.039

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

Also posted in Article 01, Section 1.39 | Comments closed

S 01.040

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

Also posted in Article 01, Section 1.40 | Comments closed

S 01.041

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

Also posted in Article 01, Section 1.41 | Comments closed

S 01.042

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Depository Bank” means Citizens Bank.

Also posted in Article 01, Section 1.42 | Comments closed

S 01.043

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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.

Also posted in Article 01, Section 1.43 | Comments closed

S 01.044

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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.

Also posted in Article 01, Section 1.44 | Comments closed

S 01.044

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“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).

Also posted in Article 01, Definitions, Section 1.44 | Comments closed

S 01.045

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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.

Also posted in Article 01, Section 1.45 | Comments closed

S 01.046

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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.

Also posted in Article 01, Section 1.46 | Comments closed

S 01.047

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

Also posted in Article 01, Section 1.47 | Comments closed

S 01.048

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

Also posted in Article 01, Section 1.48 | Comments closed

S 01.049

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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.

Also posted in Article 01, Section 1.49 | Comments closed

S 01.050

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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.

Also posted in Article 01, Section 1.50 | Comments closed

S 01.051

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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.

Also posted in Article 01, Section 1.51 | Comments closed

S 01.052

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

Also posted in Article 01, Section 1.52 | Comments closed

S 01.053

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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.

Also posted in Article 01, Section 1.53 | Comments closed

S 01.054

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

Also posted in Article 01, Section 1.54 | Comments closed

S 01.055

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

Also posted in Article 01, Section 1.55 | Comments closed

S 01.056

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

Also posted in Article 01, Section 1.56 | Comments closed

S 01.057

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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.

Also posted in Article 01, Section 1.57 | Comments closed

S 01.058

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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.

Also posted in Article 01, Section 1.58 | Comments closed

S 01.059

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Google” means Google Inc. and its Affiliates.

Also posted in Article 01, Section 1.59 | Comments closed

S 01.060

Comments are closed.

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.

Also posted in Article 01, Section 1.60 | Comments closed

S 01.061

Comments are closed.

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.

Also posted in Article 01, Section 1.61 | Comments closed

S 01.062

Comments are closed.

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.

Also posted in Article 01, Section 1.62 | Comments closed

S 01.063

Comments are closed.

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.

Also posted in Article 01, Section 1.63 | Comments closed

S 01.064

Comments are closed.

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

Also posted in Article 01, Section 1.64 | Comments closed

S 01.065

Comments are closed.

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

Also posted in Article 01, Section 1.65 | Comments closed

S 01.066

Comments are closed.

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.

Also posted in Article 01, Section 1.66 | Comments closed

S 01.067

Comments are closed.

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).

Also posted in Article 01, Section 1.67 | Comments closed

S 01.068

Comments are closed.

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

Also posted in Article 01, Section 1.68 | Comments closed

S 01.069

Comments are closed.

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).

Also posted in Article 01, Section 1.69 | Comments closed

S 01.070

Comments are closed.

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.

Also posted in Article 01, Section 1.70 | Comments closed

S 01.071

Comments are closed.

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

Also posted in Article 01, Section 1.71 | Comments closed

S 01.072

3 responses to “S 01.072”

  1. SCanzoneri says:

    A problem with this section is that the term “children’s Book” is not defined elsewhere in the Agreement. Because this section says that pictorial works such as photographs and illustrations are not “inserts” unless they are children’s Book illustrations, the lack of a definition of “children’s book” could cause confusion in the administration of the settlement.

    One gets the feeling that the people who drafted the Agreement had traditional picture books in mind, but the range of illustrative material in children’s books today is very wide.

  2. The proposed definition suggested by four authors is:

    Children’s Book means any Book that is marketed to or read by or to children under 18 and/or used in elementary, middle, or secondary schools, including textbooks.

  3. SCanzoneri says:

    Mr. Grimmelmann, I am really impressed by how on top of the case you are. Actually, I’m one of the people advocating for this definition. (The idea came up after I prepared an article explaining the settlement to other members of the Children’s Book Guild of Washington DC.) I think I am also (cringe) the one responsible for missing a typo in it. The language should have a “be” where there is an “or” is , so the definition goes …. “marketed to be read by or to children” ….

    Another thing we are advocating is that Google give public school libraries Free Access Service licenses, as well as giving such licenses to public libraries. If the Agreement included a definition of “children’s Book”, Google could offer public school libraries a Children’s Public Access Service license that is limited to children’s books in the Institutional Subscription Base.

    From our own experiences, we know that many children — particularly disadvantaged children — do not get into public libraries. In addition, even if kids do go to a public library, even very liberal parents may not want the kids going into the Institutional Subscription Base. Anyone who spends time with middle school children can easily imagine a 12 year old finding pages from the Kama Sutra or The Joy of Sex, printing them out, showing them off on the playground, and creating all sorts of bother and embarrassment.

    We don’t have any idea whether our suggestions will get anywhere — either with the Court or with the parties. But for people who write & illustrate books for kids it is difficult to understand why the biggest library in history seems to be being built without a children’s section.

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.

Also posted in Article 01, Section 1.72 | Comments closed

S 01.073

Comments are closed.

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.

Also posted in Article 01, Section 1.73 | Comments closed

S 01.074

Comments are closed.

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).

Also posted in Article 01, Section 1.74 | Comments closed

S 01.075

Comments are closed.

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

Also posted in Article 01, Section 1.75 | Comments closed

S 01.076

Comments are closed.

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.

Also posted in Article 01, Section 1.76 | Comments closed

S 01.077

Comments are closed.

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.

Also posted in Article 01, Section 1.77 | Comments closed

S 01.078

Comments are closed.

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.

Also posted in Article 01, Section 1.78 | Comments closed

S 01.079

Comments are closed.

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.

Also posted in Article 01, Section 1.79 | Comments closed

S 01.080

Comments are closed.

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.

Also posted in Article 01, Section 1.80 | Comments closed

S 01.081

Comments are closed.

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.

Also posted in Article 01, Section 1.81 | Comments closed

S 01.082

Comments are closed.

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.

Also posted in Article 01, Section 1.82 | Comments closed

S 01.083

Comments are closed.

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.

Also posted in Article 01, Section 1.83 | Comments closed

S 01.084

Comments are closed.

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.

Also posted in Article 01, Section 1.84 | Comments closed

S 01.085

Comments are closed.

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).

Also posted in Article 01, Section 1.85 | Comments closed

S 01.086

Comments are closed.

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.

Also posted in Article 01, Section 1.86 | Comments closed

S 01.087

Comments are closed.

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.

Also posted in Article 01, Section 1.87 | Comments closed

S 01.088

Comments are closed.

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

Also posted in Article 01, Section 1.88 | Comments closed

S 01.089

Comments are closed.

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

Also posted in Article 01, Section 1.89 | Comments closed

S 01.090

Comments are closed.

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:

Also posted in Article 01, Section 1.90 | Comments closed

S 01.090.1

Comments are closed.

(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).

Also posted in Article 01, Section 1.90, Section 1.90(a) | Comments closed

S 01.090.2

Comments are closed.

(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.

Also posted in Article 01, Section 1.90, Section 1.90(b) | Comments closed

S 01.090.3

Comments are closed.

(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.

Also posted in Article 01, Section 1.90, Section 1.90(c) | Comments closed

S 01.090.4

Comments are closed.

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

Also posted in Article 01, Section 1.90, Section 1.90(d) | Comments closed

S 01.090.5

Comments are closed.

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

Also posted in Article 01, Section 1.90, Section 1.90(e) | Comments closed

S 01.091

Comments are closed.

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.

Also posted in Article 01, Section 1.91 | Comments closed

S 01.092

Comments are closed.

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.

Also posted in Article 01, Section 1.92 | Comments closed

S 01.093

Comments are closed.

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

Also posted in Article 01, Section 1.93 | Comments closed

S 01.094

Comments are closed.

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.

Also posted in Article 01, Section 1.94 | Comments closed

S 01.095

Comments are closed.

OCR” means optical character recognition.

Also posted in Article 01, Section 1.95 | Comments closed

S 01.096

Comments are closed.

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.

Also posted in Article 01, Section 1.96 | Comments closed

S 01.097

Comments are closed.

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.

Also posted in Article 01, Section 1.97 | Comments closed

S 01.098

Comments are closed.

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.

Also posted in Article 01, Section 1.98 | Comments closed

S 01.099

Comments are closed.

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.

Also posted in Article 01, Section 1.99 | Comments closed

S 01.100

Comments are closed.

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

Also posted in Article 01, Section 1.100 | Comments closed

S 01.101

Comments are closed.

Also posted in Article 01, Section 1.101 | Comments closed

S 01.102

5 responses to “S 01.102”

  1. ehasbrouck says:

    Many magazines and other serials are irregularly published, lack specific intent of the publisher to continue indefinitely or any evidence of such intent, even if it might exist (the most common intent of a commercial publisher, of course, is to continue publication not indefinitely but as long as it promises to be profitable), deliberately have distinctive designs and themes for each issue (especially art and deisgn publications), or have a primary purpose other than, “to transmit information” (is art as a purpose considered “transmission of information”? ), any of which would cause them to be considered “books” for purposes of the settlement.

  2. The periodicity requirement would seem to leave many zines outside the definition of “periodical,” along with many more formal publications. Timothy McSweeney’s Quarterly Concern has a stated frequency that hasn’t always matched its actual frequency (“Late Winter 2000”) and is supposed only to run for fifty-six issues. The boundary cases here are going to be hard, no matter what definition you use.

  3. Elizabeth Townsend Gard says:

    This is a distinctly different definition than under the 1909 Act and the Compendium, and will add to confusion or revision of law in a pretty significant way. It is both broader (time period) and narrower (periodicals include many more kinds of works under the 1909 Copyright Act.)

  4. Interesting. Has anyone asked the parties why the definition diverges?

  5. ‘Comic book’ — this might be termed the DC Comics amendment.

    I detect signs of hasty revision: it’s a rare comic book ‘whose primary purpose is to transmit information’, unless you are defining information so broadly that the clause becomes useless as a qualifier.

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.

Also posted in Article 01, Section 1.102 | Comments closed

S 01.103

Comments are closed.

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.

Also posted in Article 01, Section 1.103 | Comments closed

S 01.104

Comments are closed.

Also posted in Article 01, Section 1.104 | Comments closed

S 01.105

Comments are closed.

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

Also posted in Article 01, Section 1.105 | Comments closed

S 01.106

Comments are closed.

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).

Also posted in Article 01, Section 1.106 | Comments closed

S 01.107

Comments are closed.

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

Also posted in Article 01, Section 1.107 | Comments closed

S 01.108

Comments are closed.

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

Also posted in Article 01, Section 1.108 | Comments closed

S 01.109

Comments are closed.

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

Also posted in Article 01, Section 1.109 | Comments closed

S 01.110

Comments are closed.

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

Also posted in Article 01, Section 1.110 | Comments closed

S 01.111

Comments are closed.

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.

Also posted in Article 01, Section 1.111 | Comments closed

S 01.112

Comments are closed.

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.

Also posted in Article 01, Section 1.112 | Comments closed

S 01.113

Comments are closed.

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.

Also posted in Article 01, Section 1.113 | Comments closed

S 01.114

Comments are closed.

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.

Also posted in Article 01, Section 1.114 | Comments closed

S 01.115

Comments are closed.

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).

Also posted in Article 01, Section 1.115 | Comments closed

S 01.116

Comments are closed.

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.

Also posted in Article 01, Section 1.116 | Comments closed

S 01.117

Comments are closed.

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

Also posted in Article 01, Section 1.117 | Comments closed

S 01.118

Comments are closed.

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.

Also posted in Article 01, Section 1.118 | Comments closed

S 01.119

Comments are closed.

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.

Also posted in Article 01, Section 1.119 | Comments closed

S 01.120

Comments are closed.

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.

Also posted in Article 01, Section 1.120 | Comments closed

S 01.121

Comments are closed.

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:

Also posted in Article 01, Section 1.121 | Comments closed

S 01.121.1

Comments are closed.

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

Also posted in Article 01, Section 1.121, Section 1.121(a) | Comments closed

S 01.121.2

Comments are closed.

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

Also posted in Article 01, Section 1.121, Section 1.121(b) | Comments closed

S 01.121.3

Comments are closed.

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

Also posted in Article 01, Section 1.121, Section 1.121(c) | Comments closed

S 01.121.4

Comments are closed.

(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.

Also posted in Article 01, Section 1.121, Section 1.121(d) | Comments closed

S 01.122

2 responses to “S 01.122”

  1. james says:

    “Registered” does not have its usual meaning in copyright law: “registered with the Copyright Office.”

  2. James Grimmelman says:

    But note that “Rightsholder” requires “registered with the Copyright Office” for United States works (though not for foreign ones).

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.

Also posted in Article 01, Section 1.122 | Comments closed

S 01.123

Comments are closed.

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.

Also posted in Article 01, Section 1.123 | Comments closed

S 01.124

Comments are closed.

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.

Also posted in Article 01, Section 1.124 | Comments closed

S 01.125

3 responses to “S 01.125”

  1. Charles Petit, a US lawyer, has suggested on his site Scrivener’s Error that these plaintiffs fail tests both of typicality and commonality of interests when considered as representatives of the settlement sub-class ‘author’. (I believe I am summarizing his remarks accurately.) Following on from his comments, I note that three are writers of popular non-fiction, one is a children’s author, and one is a poet and literary critic. Petit gives a longish list of categories of author not represented among the group. I note additionally that every one of the five plaintiffs was born in the USA, works in the USA, and has published mainly or exclusively in the USA. There is no representative here of authors from outside the USA, though the ‘settlement class’ comprehends a very large number of non-US authors.

  2. The plaintiffs, if pressed, would likely argue that having the Authors Guild and AAP in the room expanded the range of authors and publishers represented. One’s view of that claim likely depends on one’s view of the AG and AAP.

    Also, the current draft of our amicus brief questions the adequacy of the named plaintiffs as representatives of the subclass of orphan works owners.

  3. Gillian Spraggs says:

    The plaintiffs, if pressed, would likely argue that having the Authors Guild and AAP in the room expanded the range of authors and publishers represented.

    I have commented here on the fact that only authors who have been published ‘by an established American publisher’ are eligible for membership of the Authors Guild: this excludes the very large numbers of foreign authors, myself included, who have never published a book in the USA, yet who find ourselves made members of the settlement class.

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.

Also posted in Article 01, Section 1.125 | Comments closed

S 01.126

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Also posted in Article 01, Section 1.126 | Comments closed

S 01.127

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

Also posted in Article 01, Section 1.127 | Comments closed

S 01.128

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

Also posted in Article 01, Section 1.128 | Comments closed

S 01.129

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

Also posted in Article 01, Section 1.129 | Comments closed

S 01.130

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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.).

Also posted in Article 01, Section 1.130 | Comments closed

S 01.131

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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).

Also posted in Article 01, Section 1.131 | Comments closed

S 01.132

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

Also posted in Article 01, Section 1.132 | Comments closed

S 01.133

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

Also posted in Article 01, Section 1.133 | Comments closed

S 01.134

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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.

Also posted in Article 01, Section 1.134 | Comments closed

S 01.135

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

Also posted in Article 01, Section 1.135 | Comments closed

S 01.136

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

Also posted in Article 01, Section 1.136 | Comments closed

S 01.137

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

Also posted in Article 01, Section 1.137 | Comments closed

S 01.138

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

Also posted in Article 01, Section 1.138 | Comments closed

S 01.139

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Settlement Administrator” means Rust Consulting, Inc.

Also posted in Article 01, Section 1.139 | Comments closed

S 01.140

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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.

Also posted in Article 01, Section 1.140 | Comments closed

S 01.141

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

Also posted in Article 01, Section 1.141 | Comments closed

S 01.142

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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.

Also posted in Article 01, Section 1.142 | Comments closed

S 01.143

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

Also posted in Article 01, Section 1.143 | Comments closed

S 01.144

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

Also posted in Article 01, Section 1.144 | Comments closed

S 01.145

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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.

Also posted in Article 01, Section 1.145 | Comments closed

S 01.146

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

Also posted in Article 01, Section 1.146 | Comments closed

S 01.147

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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.

Also posted in Article 01, Section 1.147 | Comments closed

S 01.148

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

Also posted in Article 01, Section 1.148 | Comments closed

S 01.149

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

Also posted in Article 01, Section 1.149 | Comments closed

S 01.150

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

Also posted in Article 01, Section 1.150 | Comments closed

S 01.151

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

Also posted in Article 01, Section 1.151 | Comments closed

S 01.152

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

Also posted in Article 01, Section 1.152 | Comments closed

S 01.152

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

Also posted in Article 01, Section 1.152 | Comments closed

S 01.153

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

Also posted in Article 01, Section 1.153 | Comments closed

S 01.154

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

Also posted in Article 01, Section 1.154 | Comments closed

S 01.155

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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.

Also posted in Article 01, Section 1.155 | Comments closed

S 01.155

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

Also posted in Article 01, Section 1.155 | Comments closed

S 01.156

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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.

Also posted in Article 01, Section 1.156 | Comments closed

S 01.156

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“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.

Also posted in Article 01, Section 1.156, Uncategorized | Comments closed

S 01.157

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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).

Also posted in Article 01, Section 1.157 | Comments closed

S 01.158

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

Also posted in Article 01, Section 1.158 | Comments closed

S 01.159

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

Also posted in Article 01, Section 1.159 | Comments closed

S 01.160

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

Also posted in Article 01, Section 1.160 | Comments closed

S 02

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ARTICLE 2 — SETTLEMENT BENEFITS – OVERVIEW AND AUTHORIZATIONS

Also posted in Article 02 | Comments closed

S 02.1

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Benefits to the Amended Settlement Class – Overview.

Also posted in Article 02, Section 2.1 | Comments closed

S 02.1.1

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(a) Google Book Search. Google is authorized to, in the United States, sell subscriptions to the Institutional Subscription Database, sell individual Books, place advertisements on Online Book Pages, and make other commercial uses of Books, all as further described in this Amended Settlement Agreement. Google shall pay to the Registry, for the benefit of the Rightsholders, seventy percent (70%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Amended Settlement Agreement, less ten percent (10%), for Google’s operating costs, deducted from such revenues prior to such calculation (i.e., sixty-three percent (63%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Amended Settlement Agreement). The Registry will distribute the revenues to Rightsholders pursuant to the provisions of the Plan of Allocation.

Also posted in Article 02, Section 2.1, Section 2.1(a) | Comments closed

S 02.1.2

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(b) Cash Payment. Google shall pay a minimum of forty-five million United States dollars (U.S. $45 million) into the Settlement Fund to pay Amended Settlement Class members whose Books and Inserts have been Digitized prior to the Opt-Out Deadline. on or before May 5, 2009. Such forty-five million United States dollars (U.S. $45 million) will be distributed from the Settlement Fund in the form of Cash Payments of at least sixty United States dollars (U.S. $60) per Principal Work; fifteen United States dollars (U.S. $15) per Entire Insert; and five United States dollars (U.S. $5) per Partial Insert in accordance with the Plan of Allocation. To the extent that funds greater than forty-five million United States dollars(U.S. $45 million) are required in order to pay every such Amended Settlement Class member his, her or its Cash Payment, Google shall make an additional payment to enable such Cash Payments to be made to the Rightsholders from the Settlement Fund. To the extent fundsremain from the forty-five million United States dollars (U.S. $45 million) after all Cash Payments are made, such excess will be distributed pursuant to the Plan of Allocation.

Also posted in Article 02, Section 2.1, Section 2.1(b) | Comments closed

S 02.1.3

2 responses to “S 02.1.3”

  1. Gillian Spraggs says:

    ‘The Registry will be responsible for… representing the interests of Rightsholders’.

    A Rightsholder is defined (1.132) as ‘a member of the Settlement Class who does not opt out of the Settlement by the Opt-Out Deadline’.

    That has to mean the authors of the misleadingly-termed ‘orphan works’, the ‘non-active’ rights-holders, as well as the ‘registered’ rights-holders.

    Under UK law that would mean, surely, that the Registry and its officers owe fiduciary duties towards the ‘non-active’ rights-holders. There must, surely, be some equivalent under US law.

    A legal website in the UK gives a definition of fiduciary duties that includes the following: ‘A fiduciary … may not act to their own advantage or the benefit of a third person without the fully informed consent of the principal.’ The Settlement would seem to breach this principle, since the ‘non-active’ rights-holders, by definition, cannot give consent, informed or otherwise, to the actions of Google and the Registry.

  2. Yes, this clause will require that the Registry will owe duties to non-active rights-holders. The scope of those duties, though, are defined by the legal document that creates the fiduciary relationship, and here, I expect that the registry’s charter will be careful to explain that the registry doesn’t need specific consent from non-active rightsholders, provided it follows the terms of the settlement. The Registry can’t deliberately act against their interest, nor can it breach terms in the settlement itself.

    Bottom line: yes to fiduciary duties or something very similar, but informed consent is a default rule, not a mandatory one, and I read the settlement to modify that default rule.

(c) Registry/Notice/Claims Administration Funding. Google shall is obligated to pay thirty-four and one-half million United States dollars (U.S. $34.5 million) (of which twelve million United States dollars (U.S. $12 million) has been paid) to fund the launch and the initial operations of the Registry and to fund other Administrative Costs. The Registry will be responsible for locating and collecting information from Rightsholders, identifying and coordinating payments to Rightsholders, and otherwise representing the interests of Rightsholders under this Amended Settlement Agreement.

Also posted in Article 02, Section 2.1, Section 2.1(c) | Comments closed

S 02.1.4

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(d) Attorneys’ Fees and Costs. Google shall pay Plaintiffs’ attorneys’ fees and costs in accordance with Section 5.5 (Attorneys’ Fees).

Also posted in Article 02, Section 2.1, Section 2.1(d) | Comments closed

S 02.1.5

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(e) Summary Only. This Section 2.1 (Benefits to the Amended Settlement Class – Overview) is a summary of some of the provisions of this Amended Settlement Agreement and issubject to all of the other provisions of this Amended Settlement Agreement.

Also posted in Article 02, Section 2.1, Section 2.1(e) | Comments closed

S 02.2

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Authorization of Google, Fully Participating Libraries and Cooperating Libraries. In exchange for the benefits conferred in this Amended Settlement Agreement on Plaintiffs and Rightsholders, Rightsholders, as of the Effective Date, authorize (a) Google
to make Display Uses and Non-Display Uses of their Books and Inserts in GBS and other Google Products and Services, (b) each Fully Participating Library to use its Library Digital Copy and (c) each Host Site to make the Research Corpus available, all in accordance with the terms and conditions of this Amended Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable. As of the Effective Date, Rightsholders authorize Google, the Fully Participating Libraries, the Cooperating Libraries and the Host Sites to engage in the activities, and only the activities, set forth in this Amended Settlement Agreement, a Library-Registry Agreement or a Host Site-Registry Agreement, as applicable, and only in accordance with such terms and conditions as are applicable to those activities; provided that the remedy for any breach of a term or condition of this Amended Settlement Agreement or a Library-Registry Agreement shall not be termination of such authorizations except as provided in Section 3.7(b) (Failure to Provide Contemplated Rightsholder Services). This Amended Settlement Agreement does not authorize Google, any Participating Library or any Host Site to make any uses of Booksand Inserts other than those uses that are authorized under this Amended Settlement Agreement. This Amended Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, (i) the use of any work or material that is in the public domain under the Copyright Act in the United States, (ii) the use of books in hard copy (including such term does not include microform) format other than the creation and use of Digital Copies of Books and Inserts, or (iii) any Participating Library’s Digitization of Books if the resulting Digitized Books are neither provided to Google pursuant to this Amended Settlement Agreement nor included in any LDC, or the use of any such Digitized Books that are neither provided to Google pursuant to this Amended Settlement Agreement nor included in any LDC.

Also posted in Article 02, Section 2.2 | Comments closed

S 02.3

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Author-Publisher Procedures. All rights of Books Rightsholders under this Amended Settlement Agreement are subject to the Author-Publisher Procedures.

Also posted in Article 02, Section 2.3 | Comments closed

S 02.4

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Non-Exclusivity of Authorizations. The authorizations granted to Google in this Amended Settlement Agreement are non-exclusive only, and nothing in this Amended Settlement Agreement shall be construed as limiting any Rightsholder’s right to authorize, through the Registry or otherwise, any Person, including direct competitors of Google, to use his, her or its Books or Inserts in any way, including ways identical to those provided for under this Amended Settlement Agreement.

Also posted in Article 02, Section 2.4 | Comments closed

S 03

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ARTICLE 3 — GOOGLE BOOK SEARCH – RIGHTS, BENEFITS AND OBLIGATIONS

Also posted in Article 03 | Comments closed

S 03.01

2 responses to “S 03.01”

  1. Gillian Spraggs says:

    ‘The authorizations to use Books and Inserts provided for by this Settlement Agreement’

    From whom, or what, does the authorization come? From the court?

  2. Yes, from the court. Or, to be more precise, from the copyright owners, as part of a settlement agreement entered by the court.

Digitization, Identification and Use of Books.

Also posted in Article 03, Section 03.1 | Comments closed

S 03.01.1

3 responses to “S 03.01.1”

  1. Copyright law distinguishes nonexclusive licenses from transfers of ownership; the settlement makes clear that this is the former. Google does not take ownership of any copyrights

  2. In the case of orphan works, the authorization may well be effectively exclusive, since no one else will be able to obtain a license. But as a matter of formal copyright law, it’s nonexclusive.

  3. Gillian Spraggs says:

    ‘The authorizations to use Books and Inserts provided for by this Settlement Agreement’

    From whom, or what, does the authorization come? From the court?

    (Sorry to have posted this twice. I mistakenly clicked on the wrong link the first time.)

(a) Non-Exclusive Digitization Rights. As of the Effective Date, in the United States (i) Google may, on a non-exclusive basis, Digitize all Books and Inserts obtained by Google from any source (whether obtained before or after the Effective Date), (ii) Library-Registry (Fully Participating) Agreements may provide Books and Inserts to Google 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), and (iii) Google and Fully Participating Libraries may use such Books and Inserts as provided in this Amended Settlement Agreement and the Library-Registry (Fully Participating) Agreements. The authorizations to use Books and Inserts provided for by this Amended Settlement Agreement or a Library-Registry Agreement are not transfers of copyright ownership to such Books or Inserts, and nothing in this Amended Settlement Agreement or a Library-Registry Agreement shall operate to transfer any copyright ownership in Books or Inserts. The foregoing authorization for Google to Digitize Books and Inserts includes authorization of Google’s contractors to Digitize Books and Inserts for Google, including libraries that may Digitize Books and Inserts, or portions thereof, at Google’s request.

Also posted in Article 03, Section 03.1, Section 03.1(a) | Comments closed

S 03.01.2

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(b) Identification of Digitized Books and Government Works.

Also posted in Article 03, Section 03.1, Section 03.1(b) | Comments closed

S 03.01.2.1

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(i) List of Digitized Books and Government Works. As of the Notice Commencement Date, and upon Plaintiffs’ request, Google will provide Google has previously provided Plaintiffs, in a form mutually agreed, with a list of the Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized as of the Notice Commencement Date January 5, 2009 and the date each Book, Public Domain Book with a copyright date after 1922 or Government Work was Digitized by Google, and a separate list of all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google reasonably anticipates anticipated it will Digitize on or before the Opt-Out Deadline, in each case, to the extent that Google is permitted to do so under then-existing contracts with Metadata providers. Google and Plaintiffs will cooperate to obtain such Metadata providers’ permission for Google to provide Plaintiffs with such lists; provided, however, that the Registry shall be responsible for payment of any additional license fees to the extent required by such providers. Further, as soon as practicable, Google will provide Plaintiffs, in a form mutually agreed, would Digitize on or before May 5, 2009. On November 2, 2009, Google provided Plaintiffs with a final list of all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google Digitized on or before the Opt-Out Deadline. May 5, 2009.

Also posted in Article 03, Section 03.1, Section 03.1(b), Section 03.1(b)(i) | Comments closed

S 03.01.2.2

One response to “S 03.01.2.2”

  1. This database is to be made available to the “Settlement Class,” not to the public at large. But the class of book copyright owners is so immense that the difference may not matter.

(ii) Books Database. As of the Notice Commencement Date, Google, with or through the Registry, will make Google has made a searchable online database available to members of the Amended Settlement Class through the Internet (1) for the purpose of identifying all Books, Public Domain Books with a copyright date after 1922 and Government Works that Google has Digitized or reasonably anticipates that it might Digitize under this Amended Settlement Agreement, and (2) for purposes of Article V (Other Settlement Benefits), identifying whether such Books, Public Domain Books with a copyright date after 1922 or Government Works have been Digitized as of the Notice Commencement Date or Google reasonably anticipates that it might Digitize such Books, Public Domain Books or Government Works prior to the Opt-Out Deadline. on or before May 5, 2009. Such database shall be referred to in this Amended Settlement Agreement as the “Books Database.” The Books Database will support supports queries by author, title, publisher, ISBN, and date of publication. The inclusion of a work within the Books Database does not, in and of itself, mean that the work is a Book within the meaning of Section 1.19 (Book).

Also posted in Article 03, Section 03.1, Section 03.1(b), Section 03.1(b)(ii) | Comments closed

S 03.01.2.3

Comments are closed.

(iii) Books. Google will also allow members of the Amended Settlement Class to submit bibliographic information (e.g., title, author, and publication date) for Books not in the Books Database.

Also posted in Article 03, Section 03.1, Section 03.1(b), Section 03.1(b)(iii) | Comments closed

S 03.01.2.4

Comments are closed.

(iv) Inserts.

Also posted in Article 03, Section 03.1, Section 03.1(b), Section 3.1(b)(iv) | Comments closed

S 03.01.2.4.1

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(1) Submission. The Books Database will allow each member of the Amended Settlement Class to submit identifying information regarding his, her or its Inserts, such as the Books, Public Domain Books with a copyright date after 1922 or Government Works in which such Inserts were published, the location of such Inserts within Books, Public Domain Books with a copyright date after 1922 or Government Works and any other identifying information about such Inserts (e.g., whether the Insert is an introduction, a foreword, etc.).

Also posted in Article 03, Section 03.1, Section 03.1(b), Section 3.1(b)(iv), Section 3.1(b)(iv)(1) | Comments closed

S 03.01.2.4.2

Comments are closed.

(2) Insert Identification. For content that may be an Insert, the Books Database will allow any Person who might be a member of the Amended Settlement Class to submit a digital copy of his, her or its content that may be an Insert or to otherwise identify such content that may be an Insert, and Google will perform searches to identify Books, Public Domain Books with a copyright date after 1922 or Government Works, if any, that contain such submitted content. If Google identifies any Books, Public Domain Books with a copyright date after 1922 or Government Works that may contain such submitted content, Google will notify such Person of such Books, Public Domain Books with a copyright date after 1922 or Government Works in order to enable him, her or it to determine whether the submitted content is an Insert in such Books, Public Domain Books with a copyright date after 1922 or Government Works and the pages on which such content appears. Google shall have no liability for failure to identify an Insert under this Section 3.1(b)(iv)(2) (Insert Identification).

Also posted in Article 03, Section 03.1, Section 03.1(b), Section 3.1(b)(iv), Section 3.1(b)(iv)(2) | Comments closed

S 03.02

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Initial Display and No Display Book Classification.

Also posted in Article 03, Section 3.2 | Comments closed

S 03.02.1

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(a) General Guidelines. Pursuant to Section 3.2(b). (Display/No Display Classification), Google and the Registry will classify all Books in one of two categories, either Display Books, as described in Section 3.3 (Display Books), or No Display Books, as described in Section 3.4 (No Display Books).

Also posted in Article 03, Section 3.2, Section 3.2(a) | Comments closed

S 03.02.2

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(b) Display/No Display Classification. Google will initially classify a Book as No Display if it is determined to be Commercially Available as of the Notice Commencement Date, and Display if it is determined not to be Commercially Available as of the Notice Commencement Date. A Rightsholder, Google, or the Registry (pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), may change a Book’s classification as Display or No Display as set forth in this Article III (Google Book Search – Rights, Benefits and Obligations).

Also posted in Section 3.2, Section 3.2(b) | Comments closed

S 03.02.3

Comments are closed.

(c) Notification of Display/No Display Classification. The Books Database will identify whether a Book has been classified as a Display Book or a No Display Book.

Also posted in Article 03, Section 3.2, Section 3.2(c) | Comments closed

S 03.02.4

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(d) Commercial Availability, In Print/Out of Print and Public Domain Determination.

Also posted in Article 03, Section 3.2, Section 3.2(d) | Comments closed

S 03.02.4.1

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(i) Basis for Determination. Google shall determine whether a Book is Commercially Available or not Commercially Available based on an its analysis of multiple third-party databases as well as an its analysis of the Book’s retail availability based on information that is publicly available on the Internet to it on the Internet. Google will use third-party databases from a range of United States, Canadian, United Kingdom, and Australian sources that can be obtained on fair and commercially reasonable terms. When analyzing the third-party databases, Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be offered for sale new through one or more then-customary channels of trade in the United States Commercially Available. When analyzing information that is publicly available to it on the Internet, Google will determine retail availability by consulting various sources to determine whether the Book is available for sale new Commercially Available. Each of these sources may contain errors; by combining information from multiple sources, Google , however shall use commercially reasonable efforts to determine whether a Book is Commercially Available or is not Commercially Available in a manner that is using a methodology reasonably agreed to by Google and the Registry that is designed to minimize the overall error rate. All Books for which Google does not have information from the sources identified above will be determined to be not Commercially Available. Rightsholders may provide information directly to Google that a Book is being offered for sale new through one or more then-customary channels of trade in the United States Commercially Available when they submit their Claim Form Forms, through the Books Database or, at any time after such submission, to Google or the Registry. When Rightsholders provide such information to Google, unless Google receives such information from Rightsholders or the Registry or Rightsholders otherwise assert that their Books are Commercially Available, such Books promptly shall be classified as Commercially Available. If Google reasonably believes that the such information or assertion is inaccurate, the Book shall be determined to be Commercially Available and Google shall change then Google may challenge the classification of the Book to a No Display Book within thirty (30) days of receipt of such information pursuant to Article IX (Dispute Resolution).

Also posted in Section 3.2, Section 3.2(d), Section 3.2(d)(i) | Comments closed

S 03.02.4.1.1

2 responses to “S 03.02.4.1.1”

  1. Diana Kimpton says:

    This clause is completely unworkable. It is impossible for an automated database system such as the one at the heart of the Google Book Settlement to indentify which books contain the same Principal Work. Different editions have totally unrelated ISBNs and may not even have the same title. I have been in touch with the database people about this and been told, ” The of linking editions is something that is continually being worked on. As mentioned in the last answer, when you file a claim as the rightsholder to a book, whether it be deemed commercially unavailable or available, you control the operative settings to the book. You may direct Google want display settings they are allowed to use for the book. ” (typo is theirs, not mine)

    I’ve also spoken to them by phone and got the impression they don’t think that linking the editions is very important. When I quoted this clause, there was a long silence followed by a promise to find out more and phone me back. They haven’t. I suspect that’s because they haven’t got an answer.

    Examining the database shows that the non-working of this clause leaves editions of some very high profile books deemed to be not commercially available although it’s easy to buy other editions in the shops.

  2. Read 3.2(d)(iii) Mistakes and it’s easy to see why Google doesn’t view this as a priority matter.

(1) In-Copyright Principal Work. If a Book’s Principal Work is not in the public domain under the Copyright Act in the United States and that Book is Commercially Available, then any other Book that has the same Principal Work (such as a previous edition) is also deemed to be Commercially Available, whether or not such other Book is at the time in question also Commercially Available.

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(i), Section 3.2(d)(i)(1) | Comments closed

S 03.02.4.1.2

Comments are closed.

(2) Public Domain Principal Work. Public Domain Principal Work. If a Book’s Principal Work is in the public domain under the Copyright Act in the United States, and that Book is Commercially Available and also contains an Insert (i.e., content that qualifies as an Insert and is not in the public domain under the Copyright Act in the United States), then any earlier edition of such Book that contains such Insert is also deemed to be Commercially Available.

Also posted in Article 03, Definitions, Section 3.2, Section 3.2(d), Section 3.2(d)(i), Section 3.2(d)(i)(2) | Comments closed

S 03.02.4.2

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(ii) In-Print/Out-of-Print. Google’s initial determination of whether or not a Book is Commercially Available will be used to initially classify Books as “In-Print” or “Out-Of-Print,” as such classifications are defined in the Author-Publisher Procedures, and only for purposes of the Settlement. Google shall provide the Registry with the determination as to whether a Book is Commercially Available as of the Notice Commencement Date and thereafter from time to time. Classification of Books as In-Print or Out-Of-Print pursuant to the terms of the Author-Publisher Procedures shall be the responsibility of the Registry. If the Registry re-classifies a Book as Out-Of-Print, the Registry will direct Google to change the classification of the Book to a Display Book, which Google shall do within thirty (30) days unless the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change Requests by Rightsholders), expressly requests that the Book be treated as a No Display Book. If the Registry reclassifies a Book as In-Print, the Registry will direct Google to change the classification of the Book to a No Display Book only upon the express request of the Rightsholder of the Book, subject to Section 3.2(e)(i) (Change Requests by Rightsholders).

Also posted in Article 03, Section 3.2, Section 3.2(d)(ii) | Comments closed

S 03.02.4.3

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(iii) Mistakes. If a Book was mistakenly determined by Google not to be Commercially Available, then the Rightsholder of the Book may notify Google, or may authorize the Registry to notify Google, of such mistaken determination. To verify the claim, the Registry will provide, upon Google’s reasonable request, information supporting any assertion by the Rightsholder of the Book that the Book is Commercially Available. If the Rightsholder demonstrates asserts that the Book is Commercially Available, then, as Google’s sole obligation and the Rightsholder’s sole remedy (subject to Section 3.2(d)(iv) (Disputes)), Google promptly shall correct the determination as to whether the Book is Commercially Available within thirty (30) days.

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(iii) | Comments closed

S 03.02.4.4

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(iv) Disputes. The Registry and Google shall work together to resolve any disputes regarding the determination of whether a Book is Commercially Available. If they are unable to do so, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). If the Arbitrator, in such dispute, finds in favor of the Rightsholder, then Google shall pay the Rightsholder’s reasonable attorneys’ fees and costs, including arbitration costs.

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(iv) | Comments closed

S 03.02.4.5

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(v) Safe Harbor Public Domain Determination.

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(v) | Comments closed

S 03.02.4.5.1

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(1) Safe Harbor Process. Attachment E (Public Domain) sets forth the process by which Google may determine whether a book is a Public Domain Book for the sole purpose of determining whether Section 3.2(d)(v)(3) (Safe Harbor) is applicable. Attachment E (Public Domain) may be amended by Google and the Registry from time to time if Google develops and provides to the Registry additional or different processes for determining whether a book is a Public Domain Book. If the Registry reasonably believes that such processes do not identify Public Domain Books accurately, then the Registry shall notify Google thereof. Google shall respond to such notice within thirty (30) days, either by modifying such process or by explaining how such process can reasonably identify Public Domain Books accurately. Any disputes as to whether the process can reasonably identify Public Domain Books for purposes of determining the applicability of Section 3.2(d)(v)(3) (Safe Harbor) shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(v), Section 3.2(d)(v)(1) | Comments closed

S 03.02.4.5.2

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(2) List. Google shall identify to the Registry books that it has determined to be Public Domain Books pursuant to the process set forth in Attachment E (Public Domain) and for which Google wants the safe harbor described in Section 3.2(d)(v)(3) (Safe Harbor). For each such book, Google shall provide the supporting reasons and information that Attachment E (Public Domain) requires. At any time, the Registry or a Rightsholder may notify Google that it or a Rightsholder believes that any such book is not a Public Domain Book (with supporting reasons and information) and, upon receipt of such notice, Google shall promptly review the supporting reasons and information and shall either (a) re-classify the Book as in copyright or (b) notify the Registry and any notifying Rightsholder that Google continues to believe the book is a Public Domain Book. Any disputes with respect to whether a book is a Public Domain Book shall be resolved pursuant to Article IX (Dispute Resolution); in any such dispute, the burdens of proof as to whether the book is in copyright or in the public domain under the Copyright Act in the United States (and the allocation and shifting of such burdens) shall be as if the action were one for copyright infringement brought under the Copyright Act.

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(v), Section 3.2(d)(v)(2) | Comments closed

S 03.02.4.5.3

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(3) Safe Harbor. If, with respect to a book, Google has followed the process set forth in Attachment E (Public Domain) and neither the Registry nor a Rightsholder has notified Google pursuant to Section 3.2(d)(v)(2) (List), then Google may treat such book as if it is in the public domain under the Copyright Act in the United States for the purposes of this Amended Settlement Agreement, and Google will have no liability or obligation (a) for any use of such book to the extent that such use would be authorized under this Amended Settlement Agreement if such book were a Display Book or (b) for providing downloadable versions of such book. If the Registry or a Rightsholder has notified Google pursuant to Section3.2(d)(v)(2) (List), Google otherwise obtains actual knowledge that a Book is not in the public domain under the Copyright Act in the United States, or a Book is determined to be in copyright pursuant to Article IX (Dispute Resolution), then, commencing five (5) Business Days from the date of such notice, knowledge or determination, the foregoing limitation on Google’s liability or obligation will not apply.

Also posted in Article 03, Section 3.2, Section 3.2(d), Section 3.2(d)(v), Section 3.2(d)(v)(3) | Comments closed

S 03.02.5

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(e) Change of Display/No Display Classification.

Also posted in Article 03, Section 3.2, Section 3.2(e) | Comments closed

S 03.02.5.1

2 responses to “S 03.02.5.1”

  1. Just noticed the following:

    The Registry shall be able to direct Google to change the classification of a Book to a Display Book or a group of Books to Display Books.

    No limitation is placed on this power that I can see. In 3.2(d)(ii) it states that the Registry may do this if it decides a book is out of print, but here there appears to be no qualification of time or reason, or any requirement that the Registry notify the rights-holder(s) (or the UWF).

  2. I have just found the crucial limitation: in 6.7:

    In no event, however, may the Registry direct Google to change the classification of a Book, include or exclude a Book or Insert in or from any Display Use, or take any other action, that is contrary to such Book or Insert Rightsholder’s express direction

(i) Change Requests by Rightsholders. For all Books, the Registered Rightsholder of the Book or the Registry, for unclaimed Books, the Unclaimed Works Fiduciary (subject to the last sentence of this Section 3.2(e)(i) (Change Requests by Rightsholders) may direct Google or the Registry to change the classification of a Book or group of Books to a Display Book or Display Books or to a No Display Book or No Display Books or to include in, or, pursuant to Section 3.5 (Right to Remove or Exclude), exclude any or all of his, her or its Books or group of Books from, one or more of the Display Uses. In the event the Rightsholder directs that any of his, her or its Books be included in one or more of the Display Uses, (1) the provisions of Section 3.5(b)(iii) (Coupling Requirement) will apply to such Books, (2) such Books will be considered Display Books, and (3) such Display Uses will be deemed authorized. Google will implement a direction to change the classification of a Book within thirty (30) days after Google receives notice of such direction. The Registry shall be able to direct Google to change the classification of a Book to a Display Book or a group of Books to Display Books. A direction to change the classification of a Book to a No Display Book or a group of Books to No Display Books, however, must be initiated by the Rightsholder of the Book or Books.

Also posted in Article 03, Section 3.2, Section 3.2(e), Section 3.2(e)(i) | Comments closed

S 03.02.5.2

One response to “S 03.02.5.2”

  1. Gillian Spraggs says:

    But what if the book has been previously excluded from Display uses by the rights-holder under Section 3.5(b)(i)? Can Google use Section 3.2(e)(ii) to reopen the matter? This is important, since it would mean, effectively, that rights-holders might be repeatedly importuned on this matter indefinitely: with all sorts of scope for messages going astray, etc.

(ii) Change Requests by Google. At any time after one (1) year from the Final Approval Date, Google shall have the right to request that the classification of a Book be changed to a Display Book if Google believes that the Book is not Commercially Available at that time, or if Google believes that a mistake was made in initially determining the Book to be Commercially Available. Upon receipt of such a request from Google, the Registry shall have one hundred and twenty (120) days to attempt to contact the Rightsholder of the Book to inform such Rightsholder of such request and/or collect evidence with respect to whether the Book is Commercially Available. The Registry shall notify Google if it is able to contact such Rightsholder and will inform Google whether such Rightsholder wants the Book to remain classified as a No Display Book. If the Rightsholder of the Book provides evidence that the Book is Commercially Available or otherwise directs Google that he, she or it wants the Book to remain a No Display Book, or if the Registry otherwise determines that the Book is Commercially Available, then the Registry will notify Google, and Google will not change the classification of the Book to a Display Book at that time on that basis. If, by the end of the one hundred twenty (120)-day period, the Registry is unable to contact the Rightsholder or to find accurate evidence regarding whether the Book is Commercially Available, then the Registry shall inform Google and Google may change the classification of the Book to a Display Book, subject to Section 3.5 (Right to Remove or Exclude).

Also posted in Article 03, Section 3.2, Section 3.2(e), Section 3.2(e)(ii) | Comments closed

S 03.03

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Display Books.

Also posted in Article 03, Section 3.3 | Comments closed

S 03.03.1

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(a) Display and Non-Display Uses. Subject to Section 3.5 (Right to Remove or Exclude) and Section 4.3 (Preview Uses), Google may make Display Uses and Non-Display Uses of all Display Books; provided, however, that Google will not make Display Uses of any Book that Google has classified as not Commercially Available until the later of the Effective Date or sixty (60) days after notifying the Registry that Google has classified such Book as not Commercially Available. If, within such sixty (60)-day period, a dispute under Section 3.2(d)(iv) (Disputes) arises between the Rightsholder or the Registry and Google regarding whether such Book is Commercially Available, Google will not make Display Uses of the Book unless and until Google prevails under Article IX (Dispute Resolution).

Also posted in Article 03, Section 3.3, Section 3.3(a) | Comments closed

S 03.03.2

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(b) Inserts in Display Books. If a Book is classified as a Display Book, then, subject to Section 3.5 (Right to Remove or Exclude), Google may make Display Uses and Non-Display Uses of all Inserts in such Book. If a Book is classified as a No Display Book, then all Inserts in that Book are also subject to Section 3.4 (No Display Books).

Also posted in Article 03, Section 3.3, Section 3.3(b) | Comments closed

S 03.03.3

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(c) Inserts in Government Works and Public Domain Books. Google may use all Inserts in Government Works and Public Domain Books in connection with any uses of such Government Works and Public Domain Works in Google Products and Services, subject to Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models).

Also posted in Article 03, Section 3.3, Section 3.3(c) | Comments closed

S 03.03.4

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(d) Accommodation of Print Disabilities. Google may provide the Display Uses in a manner that accommodates users with Print Disabilities so that such users have a substantially similar user experience as users without Print Disabilities.

Also posted in Article 03, Section 3.3, Section 3.3(d) | Comments closed

S 03.03.5

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(e) Change to No Display. Rightsholders of Books may, pursuant to Section3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a Display Book to a No Display Book.

Also posted in Article 03, Section 3.3, Section 3.3(e) | Comments closed

S 03.03.6

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(f) Author Landing Page Links. If, in any Display Use of a Book in GBS for which Display Use is authorized pursuant to this Amended Settlement Agreement, Google presents any web page (i) dedicated to an individual author that includes hyperlinks to that author’s Books and other features, or (ii) with content from a Book that includes a hyperlink to the website of the publisher of such Book, then Google will also include on such page a hyperlink (or similar or appropriate technology) to that author’s website, in either case only if (1) the Registry provides Google with such hyperlink, and (2) such website promotes the author’s works, or provides relevant information about the author, and is otherwise appropriate for such purposes; provided that Google may remove any such hyperlink if Google becomes aware that such hyperlink no longer functions to link to such website.

Also posted in Article 03, Section 3.3, Section 3.3(f) | Comments closed

S 03.03.7

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(g)Display Use Attributes. With respect to their Display Books, Google and the Rightsholders may negotiate and Rightsholders may authorize Google to modify or remove the restrictions that are placed on Google in Section 4.1(d) (Basic Features of Institutional Subscriptions) and 4.2(a) (Basic Features of Consumer Purchase), and comparable restrictions that may apply to additional Revenue Models that may be agreed pursuant to Section 4.7 (Additional Revenue Models).

Also posted in Article 03, Section 3.3, Section 3.3(g) | Comments closed

S 03.04

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No Display Books.

Also posted in Article 03, Section 3.4 | Comments closed

S 03.04.1

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

Also posted in Article 03, Section 3.4, Section 3.4(a) | Comments closed

S 03.04.2

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(b) Change to Display. Rightsholders of Books may, pursuant to Section 3.2(e)(i) (Change Requests by Rightsholders), direct Google or the Registry to change the classification of a No Display Book to a Display Book, or to include any or all of their No Display Books in one or more of the Display Uses, in which case such Books will then be considered to be Display Books, and Article IV (Economic Terms for Google’s Use of Books) shall apply..

Also posted in Article 03, Section 3.4, Section 3.4(b) | Comments closed

S 03.05

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Right to Remove or Exclude.

Also posted in Article 03, Section 3.5 | Comments closed

S 03.05.1

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(a) Right to Remove.

Also posted in Article 03, Section 3.5, Section 3.5(a) | Comments closed

S 03.05.1.1

5 responses to “S 03.05.1.1”

  1. I’d missed this point, till I read the objection by Arlo Guthrie et al (p. 7): an author of an insert is not given the right to direct that his/her work be removed.

    That is outrageous.

  2. It’s pretty much opt out or nothing for Insert owners.

  3. Well, I am more than ever glad that I had the sense to opt out. But there are going to be a lot of poets, essayists and short story writers caught unwittingly in this trap, and some of them, I predict, are going to be pretty upset. I know that some of the people who have opted in have done so because they believed that that would be the best way to arrange to have their works removed.

  4. I’m curious what the interface for opting out with respect to Inserts looks like. I was able to find some of my own “books” in the database (they’re not registered, so I’m not a class member, but I didn’t see inserts.

  5. I opted out by certified, tracked mail. When it apparently got eaten by the US postal service, I rang up the settlement administrators and arranged to scan it and send it attached to an email. At my request, they kindly emailed me back to tell me this had arrived: and my hard copy had finally turned up too.

    So I don’t know what the interface for opting out Inserts looks like. I sent them full publication details, ISBNs (in both forms) and page numbers.

    I do know one thing that ought to be noted by people opting out: one writer who opted out online failed to get a confirmation screen: which suggests to me that it crashed and failed to register his opt out. C. E. Petit at Scrivenor’s Error has stated that ‘the system does not appear very robust’, and I assume this is probably the kind of thing he means.

(i) Right to Remove. A Rightsholder of a Book may direct that his, her or its Book not be Digitized, or if already Digitized, that the Book be Removed. If a Book has not yet been Digitized when Google receives a Removal request for that Book, Google will use reasonable efforts not to Digitize that Book, but, in any event, will comply with the request to Remove. Google will implement a Rightsholder’s Removal direction within as soon as reasonably practicable, but in any event no later than thirty (30) days after notice from the Registry, and in accordance with Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models), will simultaneously act promptly to exclude a Book for which it has received a Removal request. A Fully Participating Library will implement a Rightsholder’s Removal direction within for a Book as soon as reasonably practicable, but in any event no later than ninety (90) days after notice from the Registry.

Also posted in Article 03, Section 3.5, Section 3.5(a), Section 3.5(a)(i) | Comments closed

S 03.05.1.2

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

Also posted in Article 03, Section 3.5, Section 3.5(a), Section 3.5(a)(ii) | Comments closed

S 03.05.1.3

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(iii) Limitations on Right to Remove. The right to Remove under Section 3.5(a)(i) (Right to Remove) is limited to requests made within twenty-seven (27) months from the Notice Commencement Date on or before April 5, 2011 for Removal as described in Section 1.126(a) (Removed) or after April 5, 2011 but on or before March 9, 2012, for Removal as described in Section 1.126(b) (Removed). Thereafter, requests will be honored only to the extent that the Books have not yet been Digitized as of the date the request is made; if the Books at issue have already been Digitized, the Rightsholder may request exclusion from particular Display Uses (under Section 3.5(b)(i) (Right to Exclude)) but not Removal (under Section 3.5(a)(i) (Right to Remove)).

Also posted in Article 03, Section 3.5, Section 3.5(a), Section 3.5(a)(iii) | Comments closed

S 03.05.2

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

Also posted in Article 03, Section 3.5, Section 3.5(b) | Comments closed

S 03.05.2.1

3 responses to “S 03.05.2.1”

  1. Again, a point I had missed until I read the objection by Arlo Guthrie et al (p.12): the author of an insert is not given the right to exclude his/her work from revenue models, only from display uses.

    Again – it’s outrageous.

  2. One can understand why Google didn’t want to let Insert owners Exclude from Consumer Purchase — the consumer-protection issues in selling copies of books that had sections taken out would be such a nightmare that an exclusion of any insert would probably scotch the whole book.

    But yes, this is one of those provisions that — particularly for some classes of authors — is going to be quite a problem.

  3. It is also the case that the copyright in a work is exactly the same whether it is a full-length novel or a haiku. From a copyright point of view, the distinction between a book and a so-called insert doesn’t exist – they both get the same protection. That is the case in the UK, anyway. So according the author of a book more rights than the author of a short story is just – arbitrary. And, of course, oppressive to authors who write in short forms.

(i) Right to Exclude. Any Rightsholder of a Book at any time maydirect Google or the Registry to exclude his, her or its Book, or any portion thereof, from any one or more, or all, Display Uses, Revenue Models or the Book Annotation sharing feature under Section 3.10(c)(ii) (Hyperlinks and Book Annotations), and any Rightsholder of an Insert at any time may direct that his, her or its Insert, or any portion thereof, be excluded from all (but not less than all) Display Uses; provided that any Rightsholder of an Insert may only direct that his,her or its Insert, or any portion thereof, be excluded but not the entire Book, Public Domain Book or Government Work in which its Insert is contained.Google shall implement any such direction as follows. Google will implement a Rightsholder’s exclusion direction within promptly, but in any event no later than thirty (30) days after notice from the Registry or from resolution of the dispute in favor of such Rightsholder (in the case of a challenge under Section 3.5(b)(ii) (Challenging Insert Exclusion Requests) or Section 3.5(b)(vii) (Government Works and Public Domain Works)). Google shall use commercially reasonable efforts to develop a mechanism for excluding no more of Books or Inserts than Rightsholders direct. If, after using such commercially reasonable efforts, Google is unable to limit its exclusion to the Insert or portion of the Book or Insert directed by a Rightsholder, Google mayexclude up to the entire page or pages on which such Insert or portion appears. If, however, Google or the Registry develops a tool that enables Rightsholders to specify with precision the location and amount of material in an Insert or portion of a Book or Insert that is less than an entire page and for which the Rightsholder has directed exclusion, Google shall, upon receipt of such direction, exclude such Inserts or portions of Books or Inserts, but no more than that, from Display Uses as directed.

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(i) | Comments closed

S 03.05.2.1.1

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

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(i), Section 3.5(b)(i)(1) | Comments closed

S 03.05.2.2

2 responses to “S 03.05.2.2”

  1. Gillian Spraggs says:

    ‘may challenge such direction under law’

    Law here presumably means primarily the law of ‘fair use’: so you cannot challenge the use of passages quoted under that law in, for instance, critical works. That is, I suppose, reasonable.

    But contract rights? Suppose you have a poem in an anthology, and you have only licensed print rights, and UK rights, to the editor/publisher? Will Google now try to argue from this that you have no right to object to its electronic publication by Google in the States? Can they argue that? This is a matter of real concern to me.

  2. Gillian Spraggs says:

    I think there may be a partial answer to this question in Section 13.1(d)(ii): “To claim an Insert, a Claimant must … provide information a statement that, although the Claimant believes such permission was required, (1) the Claimant did not give permission for Online use of the Insert as part of the work in which the Insert appears, or (2) if such permission was granted, it was no longer in effect on or after June 1, 2003”. That’s if I have correctly understood a rather opaque passage.

(ii) Challenging Insert Exclusion Requests. The Rightsholder of a Book that contains an Insert that the Rightsholder of the Insert has directed be excluded may challenge such direction under law or contract rights, and any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution). In addition, if (a) the Rightsholder of a Book that contains an Insert for which the Insert Rightsholder has directed exclusion is not a Registered Rightsholder or (b) the Registered Rightsholder of the Book that contains such Insert (1) determined not to challenge such exclusion pursuant to the previous sentence and (2) does not object to Google making such challenge, then Google may challenge whether the Rightsholder of the Insert would have a right under the Copyright Act to exclude such Insert. Google and the Registry will develop a process to implement the foregoing. Any dispute regarding such challenge shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(ii) | Comments closed

S 03.05.2.3

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(iii) Coupling Requirement. Notwithstanding Section 3.5(b)(i) (Right to Exclude), if the Rightsholder of any Library Work authorizes Consumer Purchase or any new additional Revenue Model that may be developed pursuant to Section 4.7 (New Additional Revenue Models) (except for any new additional Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) of or for such Library Work and Google uses a Library Scan of such Library Work for Consumer Purchase or for such new additional Revenue Model, then the Rightsholder authorizes Google to include such Library Work in all Institutional Subscriptions (the “Coupling Requirement”); provided, however, that if a Library Work is Commercially Available as of the Notice Commencement Date or becomes Commercially Available at any time during the two (2)-year period after the Notice Commencement Date, the Coupling Requirement will not apply to that Library Work; provided, further, that if, at any time after the end of such two (2)-year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google is using the Library Scan for Display Uses.

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(iii) | Comments closed

S 03.05.2.4

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(iv) Mistakes and the Coupling Requirement. IIf, as of the Notice Commencement Date, a Library Work for which Google uses a Library Scan for Consumer Purchase or any new additional Revenue Model that may be developed pursuant to Section 4.7 (New Additional Revenue Models) (except for any new additional Revenue Model in which access to the Library Scan of that Library Work is provided to users free of charge) is not Commercially Available but Google mistakenly determined such Library Work to be Commercially Available, and such Library Work does not become Commercially Available at any time during the two (2)-year period following the Notice Commencement Date, then, upon a determination that the Library Work is not Commercially Available after such two (2)-year period, the Coupling Requirement will apply to such Library Work if Google is using a Library Scan for Display Uses. If, as of the Notice Commencement Date or at any time during the two (2)-year period following the Notice Commencement Date, such Library Work is mistakenly determined to be not Commercially Available, then, upon determination that the Library Work is Commercially Available, the Coupling Requirement will not apply to such Library Work; provided, however, that if, at any time after the end of such two (2)-year period, the Library Work ceases to be Commercially Available, then the Coupling Requirement shall thereafter apply to such Library Work if Google uses a Library Scan for Display Uses.

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(iv) | Comments closed

S 03.05.2.5

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(v) Waiver of Coupling Requirement. Google and the Registry may, with the consent of a Fully Participating Library or a Cooperating Library, agree to waive the Coupling Requirement as to Library Works of which such Fully Participating Library or Cooperating Library is the source and for which Google uses a Library Scan for Display Uses; provided, however, that for any Library Work for which a Library Scan is constructed from more than one physical copy of a Library Work, such waiver requires the consent of all Fully Participating Libraries and Cooperating Libraries that are the source of copies of such Library Work. Any Fully Participating Library and Cooperating Library may also agree to such a waiver in its Digitization Agreement with Google or upon notice to Google, in which event Google shall notify the Registry of such waiver. Google and the Registry may, with the consent of all of the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, agree to waive the Coupling Requirement as to all Library Works subject to the Coupling Requirement.

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(v) | Comments closed

S 03.05.2.6

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(vi) Continuing Obligations. If Google is authorized to make a Display Use of a Book and, subsequent to such authorization, a Rightsholder Removes such Book or excludes such Book or an Insert contained therein, Google shall cease such Display Use except that Google may make such Display Use of such Book or Insert to the extent necessary to fulfill its obligations as of the date of such Removal or exclusion request to any user who previously purchased access to or use of the Book through any Institutional Subscription (for a period not to exceed ten (10) months or the term of the Institutional Subscription, whichever is less, after the date of such Removal or exclusion request) or Consumer Purchase or any substantially similar Google Product or Service based on authorizations granted to Google under a separate agreement entered into directly with the Rightsholder.

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(vi) | Comments closed

S 03.05.2.7

Comments are closed.

(vii) Government Works and Public Domain Works. If a Rightsholder of an Insert in a Government Work or a Public Domain Book (not an Insert in a Book) directs Google to exclude its Insert from Display Uses, Google may elect to reject such direction. In the event of such a rejection, such Rightsholder may, notwithstanding any release in this Amended Settlement Agreement, bring either a judicial action in United States federal court against Google with respect to Google’s use of the Insert, in which judicial action the Rightsholder may seek to recover any and all relief available pursuant to the Copyright Act or, alternatively, the Rightsholder may initiate dispute resolution under Article IX (Dispute Resolution) with respect to Google’s rejection of the Rightsholder’s direction. If the Rightsholder prevails in such arbitration, (i) the Arbitrator shall issue an order prohibiting Google from making any and all Display Uses of such Insert that the Arbitrator determines would be an infringement of such Rightsholder’s Copyright Interest, (ii) Google shall pay the Rightsholder’s reasonable attorneys’ fees and costs, including the cost of the arbitration, and (iii) the foregoing and any other injunctive relief deemed appropriate by the Arbitrator shall be Google’s sole obligation and the Rightsholder’s sole remedy for rejecting the Rightsholder’s direction for exclusion of its Insert in a Government Work or Public Domain Book from Display Uses (in addition to any award of injunctive relief, to prevent a continuing infringement of such Rightsholder’s Copyright Interest in his, her or its Insert, that may be awarded by the Arbitrator). Pending the Decision of the Arbitrator, Google shall stop any and all Display Uses of the Insert.

Also posted in Article 03, Section 3.5, Section 3.5(b), Section 3.5(b)(vii) | Comments closed

S 03.05.3

Comments are closed.

(c) Take-Down or Transfer Requests.

Also posted in Article 03, Section 3.5, Section 3.5(c) | Comments closed

S 03.05.3.1

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i) | Comments closed

S 03.05.3.1.1

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(1) | Comments closed

S 03.05.3.1.2

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(2) | Comments closed

S 03.05.3.1.3

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(3) | Comments closed

S 03.05.3.1.4

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(4) | Comments closed

S 03.05.3.1.5

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(5) | Comments closed

S 03.05.3.1.6

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(6) | Comments closed

S 03.05.3.1.7

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(i), Section 3.5(c)(i)(7) | Comments closed

S 03.05.3.2

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii) | Comments closed

S 03.05.3.2.1

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(1) | Comments closed

S 03.05.3.2.2

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(2) | Comments closed

S 03.05.3.2.3

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

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(3) | Comments closed

S 03.05.3.2.4

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(4) If the Initial Authorizing Rightsholder responds to a Transfer Request by filing a notice of objection with the Registry, then Google shall not include such Book in the Revenue Models and shall stop displaying such Book in the Other Google Program while the Notifying Rightsholder and the Initial Authorizing Rightsholder resolve the dispute. Google shall only restore access to such Book in any of the Revenue Models or the Other Google Program once (a) the Initial Authorizing Rightsholder and the Notifying Rightsholder jointly authorize Google to do so or (b) either the Initial Authorizing Rightsholder or the Notifying Rightsholder obtains a court (or, if the contract between the author and publisher regarding publication of such Books permits, arbitration) ruling giving it authority to direct Google to do so.

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(4) | Comments closed

S 03.05.3.2.5

Comments are closed.

(5) In any disputes between an Initial Authorizing Rightsholder and a Notifying Rightsholder over which of them has the right to authorize Google to exploit a Book in the Other Google Program or in the Revenue Models, Google will not be named as a party or brought into the dispute in any manner and will have no liability or responsibility with respect to any such dispute.

Also posted in Article 03, Section 3.5, Section 3.5(c), Section 3.5(c)(ii), Section 3.5(c)(ii)(5) | Comments closed

S 03.06

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Technical Adaptations. Except with respect to Books Removed under Section 3.5(a) (Right to Remove), Google may make technical adaptations to (but not adapt or alter the content of) all Books (whether Display or No Display) and Inserts as reasonably necessary to preserve, maintain, manage, and keep technologically current its copies of the Books and Inserts.

Also posted in Article 03, Section 3.6 | Comments closed

S 03.07

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Contemplated Rightsholder Services.

Also posted in Article 03, Section 3.7 | Comments closed

S 03.07.1

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Obligation. Google shall implement both of the Contemplated Rightsholder Services (i.e., Institutional Subscriptions and Consumer Purchases) within five (5) years after the Effective Date. If Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, Google shall implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services. Google’s sole obligation and the sole remedy for any failure under this Section 3.7(a) (Obligation) is set forth in Sections 3.7(b) (Failure to Provide Contemplated Rightsholder Services) through (d) (Third-Party Required Library Services Provider).

Also posted in Article 03, Section 3.7, Section 3.7(a) | Comments closed

S 03.07.2

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(b) Failure to Provide Contemplated Rightsholder Services. If (i) Google fails to implement either of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services prior to the fifth (5th) anniversary of the Effective Date, and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, Google’s right to make any and all Non-Display Uses and Display Uses shall terminate ninety (90) days after notice to Google by the Registry, except as may be authorized by the Registry; provided, however, that if Google subsequently offers one of the Contemplated Rightsholder Services, Google’s rights to make any and all Non-Display Uses and Display Uses shall be immediately re-instated. Notwithstanding the foregoing, if Google believes that any actions or inactions of the Registry have proximately caused Google to fail to provide the Contemplated Rightsholder Services, then Google will provide the Registry with notice describing the Registry’s actions or inactions within such ninety (90)-day notice period, and the Registry’s notice of termination will have no effect and Google may continue to make any and all Non-Display Uses and Display Uses. Any dispute over whether any action or inaction of the Registry has proximately caused Google to fail to provide the Contemplated Rightsholder Services shall be subject to the dispute resolution provisions of Article IX (Dispute Resolution) and Google may make any and all Non-Display and Display Uses pending the Decision of the Arbitrator.

Also posted in Article 03, Section 3.7, Section 3.7(b) | Comments closed

S 03.07.3

Comments are closed.

(c) Additional Contemplated Rightsholder Services Provider. In addition, if (i) Google fails to implement both of the Contemplated Rightsholder Services within five (5) years after the Effective Date or (ii) Google discontinues both of the Contemplated Rightsholder Services and does not implement comparable replacement monetization opportunities for the Rightsholders within a period of one year from the date that Google discontinues the Contemplated Rightsholder Services, then, in either case, the Registry on the one hand and/or the Fully Participating Libraries and the Cooperating Libraries on the other hand, acting reasonably, may work to find one or more provider(s) that can provide Consumer Purchases, Institutional Subscriptions and/or the new additional Revenue Models listed in Section 4.7 (New Additional Revenue Models), and/or Required Library Services, on substantially the same terms described in this Amended Settlement Agreement. Any such arrangement shall be subject to the consent of the Registry, on the one hand, and the Fully Participating Libraries and the Cooperating Libraries acting through the Designated Representative, on the other hand (but in the case of the Fully Participating Libraries and the Cooperating Libraries only as to Library Scans), which consent of the Registry and the Fully Participating Libraries and the Cooperating Libraries shall not be unreasonably withheld or delayed (any such provider is referred to in this Amended Settlement Agreement as an “Additional Contemplated Rightsholder Services Provider”). If an Additional Contemplated Rightsholder Services Provider is identified and the foregoing required consent is obtained, then Google will provide such Additional Contemplated Rightsholder Services Provider with Digital Copies of the Library Scans (so long as the Digital Copies are not restricted from further distribution under the Digitization Agreement between Google and a Fully Participating Library or a Cooperating Library) and Digital Copies of other Books that may be provided by Google without restriction. Such Digital Copies may be used by the Additional Contemplated Rightsholder Services Provider solely to provide the Contemplated Rightsholder Services and/or the new additional Revenue Models listed in Section 4.7 (New Additional Revenue Models) and/or Required Library Services in accordance with the terms of this Amended Settlement Agreement and, in addition, with respect to Digital Copies of Library Scans only, the terms of Google’s agreements with each of the Fully Participating Libraries and the Cooperating Libraries. Such Additional Contemplated Rightsholder Services Provider is, in connection with any Claim arising out of its making available Digital Copies of Books, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).

Also posted in Article 03, Section 3.7, Section 3.7(c) | Comments closed

S 03.07.4

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(d) Third-Party Required Library Services Provider. If Google provides a Digital Copy of the Library Scans to a Third-Party Required Library Services Provider under Section 7.2(e) (Required Library Services Requirement), then the Contemplated Rightsholder Services may also be provided by the Third-Party Required Library Services Provider in addition to the Required Library Services, and Google will have no obligation to provide Contemplated Rightsholder Services and will have no liability or obligation with respect to Contemplated Rightsholder Services provided by the Third-Party Required Library Services Provider.

Also posted in Article 03, Section 3.7, Section 3.7(d) | Comments closed

S 03.07.5

6 responses to “S 03.07.5”

  1. What kind of editorial discretion does Google contemplate using to exclude books from the service? Per the language of the passage, this would exclude legal reasons to exclude materials (ie, child pornography, etc). I have additional thoughts here, but am curious as to what others think.

  2. David Brake says:

    If nothing else there should be a requirement on the registry to make public the exclusion of any book or part of a book.

  3. Note: Google’s Alexander Macgillivray provided some explanations here.

  4. AMac has promised that Google will make public the list of books they remove, and stated that they don’t currently plan to remove any (but just want to preserve their right to). These aren’t in the settlement and enforceable, but they are on the public record.

  5. […] issue that the Settlement Agreement fails to adequately address. I will pose these questions at the Public Index, and hope that they might be further addressed at upcoming conferences discussing the Settlement. I […]

(e) Google’s Exclusion of Books. Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non-editorial reasons. However, Google’s right to exclude Books for editorial reasons (i.e., not for quality, user experience, legal or other non-editorial reasons) is an issue of great sensitivity to Plaintiffs and Google. Accordingly, because Plaintiffs, Google and the libraries all value the principle of freedom of expression, and agree that this principle is an important part of GBS and other Google Products and Services, Google agrees to notify the Registry of any such exclusion of a Book for editorial reasons and of any information Google has that is pertinent to the Registry’s use of such Book other than Confidential Information of Google and other than information that Google received from a third party under an obligation of confidentiality.

Also posted in Article 03, Section 3.7, Section 3.7(e) | Comments closed

S 03.07.5.1

Comments are closed.

(i) Digital Copy of Excluded Books. Google will provide to the Registry a Digital Copy of any Book that Google excludes for editorial reasons. The Registry may, subject to Section 3.5 (Right to Remove and or Exclude) engage, with the consent (not to be unreasonably withheld) of the Fully Participating Library or the Cooperating Library from which the Library Scan of such Book was made (including, if Google constructed a Digital Copy of a Book pursuant to Section 7.2(a)(i) (Fully Participating Library Collections) from one or more physical Books, all such libraries that were the source of such physical Books), a Third-Party Required Library Services Provider that, once engaged, may make available to users a Digital Copy of that Book for uses comparable to Display Uses and Non-Display Uses; provided that, if a Book is not then Commercially Available and the Third-Party Required Library Services Provider makes available the Book for a fee, then the Third-Party Required Library Services Provider must also offer the Required Library Services (Section 7.2(e) (Required Library Services Requirement)) for the Book to the extent required by such Fully Participating Library or Cooperating Library. Such Third-Party Required Library Services Provider is, in connection with any Claim arising out of its making available such Digital Copy of the Book, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releases).

Also posted in Article 03, Section 3.7, Section 3.7(e), Section 3.7(e)(i) | Comments closed

S 03.08

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Effect of Other Agreements and Changes in Law.

Also posted in Article 03, Section 3.8 | Comments closed

S 03.08.1

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(a) Effect of Other Agreements. The Registry (and any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) will extend economic and other terms to Google that, when taken as a whole, do not disfavor or disadvantage Google as compared to any other substantially similar authorizations granted to third parties by the Registry (or any substantially similar entity organized by Rightsholders that is using any data or resources that Google provides, or that is of the type that Google provides, to the Registry relating to this Settlement) when such authorizations (i) are made within ten (10) years of the Effective Date and (ii) include rights granted from a significant portion of Rightsholders other than Registered Rightsholders. With respect to any such authorization, the Registry promptly will provide Google with notice that an authorization has been granted with sufficient detail of the terms to allow Google to obtain the benefits of such authorization pursuant to this Section 3.8(a) (Effect of Other Agreements).

Also posted in Article 03, Section 3.8, Section 3.8(a) | Comments closed

S 03.08.2

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3.8 (b) Effect of Changes in Law. Google will be able to take advantage of any tion allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Amended Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8(b) 3.8 (Effect of Changes in Law).

Also posted in Article 03, Section 3.8, Section 3.8(b) | Comments closed

S 03.09

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Distribution Arrangements. When Google may make any Snippet Display of a Book under this Amended Settlement Agreement, Google may also allow third parties that have entered into agreements with Google (a) to display snippets served by Google on their websites in response to user interactions on their websites and (b) to cache temporarily snippets transmitted by Google as described in the foregoing clause (a) for future display on their websites in response to user interactions on their websites.

Also posted in Article 03, Section 3.9 | Comments closed

S 03.10

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Specific Prohibitions.

Also posted in Article 03, Section 3.10 | Comments closed

S 03.10.1

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(a) Prohibitions on Display. Except as expressly permitted by this Amended Settlement Agreement or otherwise by Registered Rightsholders or the Registry ,for unclaimed works, by the Unclaimed Works Fiduciary, Google shall not (i) display any Expression from Books or Inserts; (ii) display any Expression from Books or Inserts in a manner that would constitute a derivative work of such Books or Inserts under the Copyright Act; or (iii) display summaries or abstracts of, or compilations from, Books or Inserts created using Digital Copies.

Also posted in Article 03, Section 3.10, Section 3.10(a) | Comments closed

S 03.10.2

Comments are closed.

(b) Prohibitions on Linking. Except as expressly permitted by this Amended Settlement Agreement or otherwise by Registered Rightsholders or, for unclaimed Books, by the Unclaimed Works Fiduciary, Rightsholders or the Registry, Google shall not create hyperlinks to Preview Use Book pages permitted by the terms of this Amended Settlement Agreement from revenue generating products or services if the effect of those links in the aggregate is to detract from revenue under this Amended Settlement Agreement that the Rightsholder(s) of such Book(s) would realize if the links did not exist, unless such services or products (i) are search services (including, for example, Google Web Search, Google Earth and other Google services that show search results by browsing instead of by entering a search query), or (ii) have the effect of making discovery of Books easier, more efficient, more widespread, or more useful. If Plaintiffs or any Rightsholders believe that this Section 3.10(b) (Prohibitions on Linking) has been violated, as Plaintiffs’ and Rightsholders’ sole remedy and Google’s sole obligation, the Registry will notify Google of the existence of such links and if it is agreed or an Arbitrator, pursuant to Article IX (Dispute Resolution), determines that this Section 3.10(b) (Prohibitions on Linking) has been violated, Google will expeditiously remove said links or come to a separate agreement with the Registry to permit them.

Also posted in Article 03, Section 3.10, Section 3.10(b) | Comments closed

S 03.10.3

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(c) Integrity of the Text.

Also posted in Article 03, Section 3.10(c) | Comments closed

S 03.10.3.1

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(i) No Alteration of Text. Except as expressly authorized by the Registered Rightsholder or the Registry, for unclaimed works, by the Unclaimed Works Fiduciary, or in this Amended Settlement Agreement, Google may not intentionally alter the text of a Book or Insert when displayed to users. Changes in the formatting or presentation of text are not considered to be alteration of the text, e.g., for the Accommodated Service.

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(i) | Comments closed

S 03.10.3.2

Comments are closed.

(ii) Hyperlinks and Book Annotations. Except as expressly authorized by the Registered Rightsholder or the Registry , for unclaimed Books, by the Unclaimed Works Fiduciary, Google may not add hyperlinks to any content within a page of a Book or facilitate the sharing of Book Annotations, except that Google may:

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii) | Comments closed

S 03.10.3.2.1

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(1) add hyperlinks within the Book for specific internal references from text contained within the Book to other sections of the Book, such as from a table of contents entry to the referenced page, from a page number in the index to the page, or from internal references in the Book to footnotes, endnotes, bibliographical material, appendices, figures, and illustrations,

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(1) | Comments closed

S 03.10.3.2.2

Comments are closed.

(2) add a hyperlink from an explicit reference in the Book to an online version of an external source cited in a footnote, endnote, or bibliographical material,

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(2) | Comments closed

S 03.10.3.2.3

Comments are closed.

(3) add a hyperlink to a URL that the Rightsholder included in a Book,

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(3) | Comments closed

S 03.10.3.2.4

Comments are closed.

(4) temporarily highlight or otherwise emphasize words in response to a user’s action, so long as such highlight or emphasis appears only on the user’s monitor and/or on a page printed by such user, and

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(4) | Comments closed

S 03.10.3.2.5

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(5) Subject to the Rightsholder’s right to exclude its Books from the Book Annotation sharing feature, allow a user to make Book Annotations for the user’s own personal use and to share those Book Annotations with a limited number of other users, provided that the feature that enables Book Annotations within Google Products and Services is subject to the following limitations:

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5) | Comments closed

S 03.10.3.2.5.1

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a) Book Annotations may not be shared with the general public, and

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(a) | Comments closed

S 03.10.3.2.5.2

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b) Book Annotations may not be accessible to any user pressly chosen to access it either by active selection or by participation in a group such as a class for which this feature is used, and

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(b) | Comments closed

S 03.10.3.2.5.3

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c) Book Annotations may not be displayed with the Book for other users who do not already have the right to view the Book, and

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(c) | Comments closed

S 03.10.3.2.5.4

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d) for sharing of a Book Annotation in connection with chase, the user may only share such Book Annotation with no more than twenty-five (25) individuals and the user must identify (e.g., by name, login or user id) each individual with whom such Book Annotation will be shared, and

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(d) | Comments closed

S 03.10.3.2.5.5

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e) for sharing of a Book Annotation as part of an Institutional Subscription, the user may only share such Book Annotation with the following other users of such Institutional Subscription: instructors and students in a single academic course sharing such Book Annotation in connection with such course during an academic year or with students of the same course during a subsequent academic year, and employees of the subscriber of the Institutional Subscription sharing such Book Annotation in connection with a discrete work project during the course of that project.

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(ii), Section 3.10(c)(ii)(5), Section 3.10(c)(ii)(5)(e) | Comments closed

S 03.10.3.3

One response to “S 03.10.3.3”

  1. Gillian Spraggs says:

    A rights-holder may exclude works from advertising uses, as stated above but I can find no provision for a rights-holder to state objections to certain kinds of advertisement.

    It was reported last November that Google Adsense served anti-gay marriage ads to a large number of gay websites. In May this year Google’s subsidiary Doubleclick (apparently) served an anti-gay marriage ad to at least one journal on LiveJournal.

    There is nothing in the Settlement Agreement to prevent Google from serving similar ads against, say, novels by James Baldwin or poems by Adrienne Rich.

    Endless similar examples might be imagined.

(iii) Advertising Content. Google may not place on, behind or over the contents of a Book or portion thereof (including on Preview Use pages or Snippet Display pages), as displayed to a user, any pop-up, pop-under, or any other types of advertisements or content of any kind. In addition to a Rightsholder’s right to exclude one or more of his, her or its Books from Advertising Uses pursuant to Section 3.5(b)(i) (Right to Exclude), the Registry is authorized to act on behalf of Rightsholders that are not Registered Rightsholders to Unclaimed Works Fiduciary may exclude from Advertising Uses one or more Unclaimed Books of such Rightsholders if Google displays animated, audio or video advertisements in conjunction with those Books and the Registry determines that exclusion from such Advertising Uses is in the best interests of such Rightsholders. of such unclaimed Books.

Also posted in Article 03, Section 3.10, Section 3.10(c), Section 3.10(c)(iii) | Comments closed

S 03.11

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Hosted Version for Rightsholders. Upon request by a Rightsholder of a Book, Google will provide a hosted version of such Book for use in conjunction with such Rightsholder’s website, similar to Google’s hosted version of Books in the Google Partner Program. Such hosted version will contain the “look and feel” of the Rightsholder’s website with minimal Google branding, which branding may be tailored by the Rightsholder upon the Rightsholder’s further reasonable request.

Also posted in Article 03, Section 3.11 | Comments closed

S 03.12

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Use of Digital Copies. Except as permitted by Sections 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e) (Google’s Exclusion of Books), 7.2(b)(ix) (Other Uses), 7.2(e)(ii) (Third-Party Required Library Services Provider) or 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), neither Rightsholders nor the Registry may authorize any Person to use Digital Copies of their Books or Inserts made by or for Google without Google’s consent; provided that Rightsholders may authorize any Fully Participating Library to use Digital Copies of their Books or Inserts in such Fully Participating Library’s LDC consistent with such Fully Participating Library’s Digitization Agreement with Google.

Also posted in Article 03, Section 3.12 | Comments closed

S 03.13

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Communication of Rightsholder Directions to Google. Rightsholders shall communicate to the Registry or, at their election and provided that Google implements an Online interface for such purpose, directly to Google, all directions for Removal, exclusion, inclusion, and pricing, and any other directions for Books and Inserts provided for in this Amended Settlement Agreement. If, however, a Rightsholder communicates directly with Google, then Google shall, before implementing any such direction, (a) notify the Registry and provide the Registry with the Rightsholder’s contact information and direction and (b) subject to Section 13.2 (Validating and Challenging Claims), receive confirmation from the Registry that (i) for Books, the Person communicating with Google is an appropriate Rightsholder under the Author-Publisher Procedures, and (ii) Google is authorized to implement such direction under this Amended Settlement Agreement, including (for Books) the Author-Publisher Procedures. The Registry will promptly respond to any such notification and request for confirmation from Google and, in any event, within the same period of time as the Registry typically responds to requests directly from Rightsholders to the Registry.

Also posted in Article 03, Section 3.13 | Comments closed

S 03.14

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Advertising Uses. Google may display advertisements on Preview Use pages and other Online Book Pages (“Advertising Uses”). Advertising on general search results pages 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 an “Advertising Use,” even if a single Book is the sole search result of a given search on a search results page. Except as set forth in Section 3.10(c)(iii) (Advertising Content) and Section 3.5(b)(i) (Right to Exclude), this Amended Settlement Agreement does not otherwise limit Google’s right to display advertising anywhere on Google Products and Services.

Also posted in Article 03, Section 3.14 | Comments closed

S 03.15

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Extent of Rights and Authorizations.

Also posted in Article 03, Section 3.15 | Comments closed

S 03.15.1

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(a) Books. A Book Rightsholder’s rights and Google’s authorizations under this Amended Settlement Agreement apply to all of the Protected Expression of such Rightsholder contained in a Book in which such Rightsholder holds a Copyright Interest.

Also posted in Article 03, Section 3.15, Section 3.15(a) | Comments closed

S 03.15.2

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(b) Inserts. A Rightsholder of an Insert has no rights under this Amended Settlement Agreement with respect to any Book or any portion of any Book in which such Insert appears, other than the Insert itself, e.g., a Rightsholder of an Insert has no right to Remove the Book in which his, her or its Insert appears, or to authorize or to prohibit Display Uses of the Book in which his, her or its Insert appears.

Also posted in Article 03, Section 3.15, Section 3.15(b) | Comments closed

S 03.15.3

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(c) Other Content. If content (e.g., text or images) in a Book is (i) in the public domain under the Copyright Act in the United States or (ii) subject to a Copyright Interest not owned by any Rightsholder of such Book or by any Rightsholder of any Insert in such Book, this Amended Settlement Agreement neither authorizes nor prohibits, nor releases any Claims with respect to, the use of such content.

Also posted in Article 03, Section 3.15, Section 3.15(c) | Comments closed

S 04

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ARTICLE 4 – ECONOMIC TERMS FOR GOOGLE’S USE OF BOOKS

Also posted in Article 04 | Comments closed

S 04.1

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Institutional Subscriptions.

Also posted in Article 04, Section 4.1 | Comments closed

S 04.1.1

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(a) General Guidelines for Pricing of Institutional Subscriptions.

Also posted in Article 04, Section 4.1, Section 4.1(a) | Comments closed

S 04.1.1.1

One response to “S 04.1.1.1”

  1. I like Matthew Sag’s comment on this section, in one of his presentations on YouTube: “This of course makes no sense. These twin objectives, maximising revenue and maximising public access, can only be consistent up to to a point. At the end of the day, Google and the Registry have to choose one or the other as their primary objective.”

(i) Objectives. The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(i) | Comments closed

S 04.1.1.2

2 responses to “S 04.1.1.2”

  1. Deven Desai says:

    The pricing system requires more general commentary. In short, whether this system is fair or a wise approach for all concerned (e.g., readers, small institutions, entrepreneurs and innovators) is questionable.

    Let’s begin with this phrase: “Google and the Registry will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties”

    This language seems like stock deal language that may work well in an established industry where customs can be used to guide the deal. As Pam Samuelson and others have noted, “This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” As such, the deal seems to lack any real sense of what pricing will be in place.

    Of course the other parameters will matter, but the general nature this clause is troubling. I still need to read the Plan of Allocation (which is oddly obscure way of referring to the plan for the money at issue) more closely but that material does not appear to address the vague nature of this clause. In addition, of course costs could change but the mechanism for determining that cost must be studied and clarified.

  2. Deven Desai says:

    One other issue: the quality of the scan idea seems to me like a lesson taken from the recording industry. Is this language about purposefully degrading images or is it about whether a scan comes out well? It seems odd that the claim is to examine hundreds of thousands of books and determine price in a fine-grained way when the rest of the deal aims to have broad licensing systems in place.

(ii) Parameters. Google and the Registry will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties, the scope of Books available, the quality of the scan and the features offered as part of the Institutional Subscription. Plaintiffs and Google expect that the number of Books available through an Institutional Subscription will change over time. As such, the value and price of Institutional Subscriptions may also change over time.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(ii) | Comments closed

S 04.1.1.3

Comments are closed.

(iii) FTE Basis. Pricing will be based on FTEs (Full-Time Equivalency). For Higher Education Institutions, FTE is defined as full-time equivalent students.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iii) | Comments closed

S 04.1.1.4

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(iv) Pricing Bands. FTE-based pricing, including pricing bands, may vary across broad categories of institutions. The categories are:

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv) | Comments closed

S 04.1.1.4.1

5 responses to “S 04.1.1.4.1”

  1. Deven Desai says:

    Corporate subscription models may pose threats to innovation and entrepreneurial activities (this becomes a toll for information and works where congestion is not necessarily a problem).

  2. Say more. How does offering a subscription pose more threats to innovation than not offering one would?

  3. Deven Desai says:

    It is difficult to know exactly how this product (if that is what is) will function. Imagine if Google has stayed with its initial offering. More folks could have come in and played with the information for a host of reasons and opened up new possibilities. The Settlement, as a general matter, seems to lock down many ways one could use this information. James, have you looked at the linking restrictions? As far a corporate pricing goes, it will be highly difficult for anyone to compete in this arena. I am saying that the vague corporate language may be O.K. or may be a way to claim that any corporate entity (non-profits seem oddly absent from the Settlement for example) must pay fee (possibly huge) just to gain access. That is something to think about when we are looking at this much information.

  4. Deven Desai says:

    So apparently Einer Elhauge has a paper, WHY THE GOOGLE BOOKS SETTLEMENT IS PROCOMPETITIVE arguing for that the deal is good for competition. Brett Frischmann pointed me to it. I have to read it, but I still wonder whether folks are assuming facts that may be true once the deal is executed. Brett also noted Matt Sag’s paper THE GOOGLE BOOK SETTLEMENT AND THE FAIR USE COUNTERFACTUAL.

  5. Einer’s paper; Matthew’s paper. Einer’s paper makes some factual mistakes about the settlement, but a lot of the analysis is very good indeed. Matthew’s paper is less ambitious (though I understand he’s hard at work extending its intellectual ambitions), but he does a very good job at walking through the way the settlement fits together and how it changes the status quo.

    Deven, what do you mean by “more people could have come in and played with this information” mean? Has Google in some way foreclosed them from doing so? Not in any way that I can see. The settlement locks down only what Google does with its scans. That’s why I have a hard time getting really upset about some of the limitations the settlement places on Google; the corpus of books is still less encumbered than it was when it just existed on paper.

    I think there is a serious antitrust risk with the settlement, but that risk has more to do with Google getting to play fast and loose with copyright law while no one else does.

(1) Corporate (may include per seat licensing in addition to FTE);

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(1) | Comments closed

S 04.1.1.4.2

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(2) Higher Education Institutions, which will be sub-divided into sub-categories based on the Carnegie Classifications for Institutions of Higher Education within the United States;

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(2) | Comments closed

S 04.1.1.4.3

6 responses to “S 04.1.1.4.3”

  1. Deven Desai says:

    Excluding K-12 seems to be a devastating blow to poor school districts and innovative teachers trying to find the best material for their students. Is this clause a censorship clause? Is it designed to protect textbook publishers? What is the purpose here?

  2. My understanding of this provision is that the idea is to allow subscriptions to schools, but not access from home. I suppose the reason might be that so many families have kids in school that this would mean K-12 access would almost be “everyone” access. But it does limit some innovative uses — no using the subscription for homework, for example.

  3. Deven Desai says:

    Maybe. Still it seems odd that the Registry makes this decision.

  4. That’s the glass half-empty way of looking at it; saying “at least they left the possibility open” is the glass half-full way. Both are true.

  5. benjamin says:

    Why does Google give institutions of higher learning free access based on the number of students and classification (see Section 4.8), but limit k-12 schools [see Section 4.1(a)(iv)(3)] by requiring Registry approval? This doesn’t seem to match up with Google’s stated goals.

  6. We may be seeing the negotiating influence of the copyright owners here. Google would like to sell through as many channels as possible; they may want more limits.

(3) School (K-12) (no remote access without Registry approval);

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(3) | Comments closed

S 04.1.1.4.4

One response to “S 04.1.1.4.4”

  1. Deven Desai says:

    Why limit government access at all? Again what is the idea behind this limit?

(4) Government (no remote access without Registry approval) (may include per seat licensing in addition to FTE);

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(4) | Comments closed

S 04.1.1.4.5

2 responses to “S 04.1.1.4.5”

  1. Deven Desai says:

    The objective is to “realiz[e] broad access to the Books by the Public,” but the deal categorically limits it unless the Registry approves. Inconsistent. Also did I miss something or is Public undefined in the Settlement Terms?

  2. You’re right; “Public” is undefined. Much in this settlement depends on the good faith and competence of the Registry.

(5) Public (no remote access without Registry approval); and

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv)(5) | Comments closed

S 04.1.1.4.6

4 responses to “S 04.1.1.4.6”

  1. Deven Desai says:

    This clause reveals that the true goal is to divide up the world and charge as much as possible at each level. Public access to the information is not a real concern. That being said there may be arguments as why one should take a licensing approach. Those argument need to made clearly and prove that this model is the best one.

    For example, one could have the snipets search for many books or one could allow a user to see pages with specific search terms plus or minus one page on either side of the key page. If the user wanted the book, the user could then buy it, obtain it from a library, or someone may enter the market and offer it on demand (this could be the publisher or another party with rights). The problem is that the Settlement conflates the users searching for books and wanting the entire book and users who want only a portion of the book for research or other reasons. Charging for access to some of these uses is not necessarily beneficial. Put differently the case must be made that this model is the best way to meet the alleged objectives and that the other stakeholders who are not acknowledged are also served.

  2. Don’t forget the standard argument that price discrimination in intellectual property permits greater overall access than a single price would. (That it happens to shift consumer surplus to the producer is just a . . . side effect.)

    On the substance, I don’t know that the proper burden of proof lies with the proponents of the settlement on this issue. They had to show that it’s a good deal for copyright owners and the public compared with the status quo. That leaves it up to opponents to come forward and show that other models would be better.

  3. Deven Desai says:

    Standard yes. Proven? And what about Benklerish ideas of Wealth of Networks? To say it is better than status quo is a red herring. Status quo never contemplated the openness nor could it see the possibility Google is offering. The claim that is good, trust us, is indeed one they should support with models and more. Seems quite a gift to say well prove us wrong and puts the emphasis on the wrong party. And I think that your claim about pricing relies on competition. If there is not competition, then your standard claim is in trouble, correct?

  4. Actually, my claim about pricing is (even potentially) true only in the absence of competition. It depends on the existence of copyright’s exclusive rights. In a fully competitive environment, price discrimination is impossible because all prices fall to marginal cost.

    My point about the burden of proof is that if you think the settlement is sub-optimal, say what would be better.

(6) Additional categories, as agreed between Google and the Registry. Subdividing the market into additional categories may be one mechanism used to ensure broad accessibility of Books to end users.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(6) | Comments closed

S 04.1.1.5

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(v) Versions of Institutional Subscriptions. When Google offers any Institutional Subscription, Google will offer a version of the Institutional Subscription that provides access to all Books available for Institutional Subscriptions pursuant to this Amended Settlement Agreement (the “Institutional Subscription Database”) for a fee. In addition, Google may identify Institutional Subscriptions for a small number of discipline-based collections of Books that Google would offer as an alternative to the version of the Institutional Subscription that provides access to the entire Institutional Subscription Database. To provide an incentive for institutions to subscribe to the entire Institutional Subscription Database, Google shall design the pricing of the different versions of the Institutional Subscription such that the price for access to the entire Institutional Subscription Database will be less than the sum of the prices for access to the discipline-based collections.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(v) | Comments closed

S 04.1.1.6

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(vi) Pricing Strategy. Prior to beginning to sell Institutional Subscriptions, Google shall propose an initial pricing strategy and, thereafter, Google shall propose subsequent pricing strategies, consistent with the objectives set forth in Section 4.1(a)(i) (Objectives) (each, a “Pricing Strategy”), to the Registry.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi) | Comments closed

S 04.1.1.6.1

Comments are closed.

(1) Elements of Pricing Strategy. Each Pricing Strategy shall include:

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1) | Comments closed

S 04.1.1.6.1.1

Comments are closed.

a) Any discipline-based collections that would be offered as an Institutional Subscription, as an alternative to the version of the Institutional Subscription that provides access to the entire Institutional Subscription Database.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(a) | Comments closed

S 04.1.1.6.1.2

Comments are closed.

b) A target retail price for each Institutional Subscription for each of the classes of institutions identified in Section 4.1(a)(iv) (Pricing Bands), including Institutional Subscriptions for each of the discipline-based collections that may be offered, Institutional Subscriptions that provide access to the entire Institutional Subscription Database, and any Limited Subscriptions.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(b) | Comments closed

S 04.1.1.6.1.3

Comments are closed.

c) The period of time over which Google will have the authorization to sell the versions of the Institutional Subscription at such target retail prices.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(c) | Comments closed

S 04.1.1.6.1.4

Comments are closed.

d) Any expected increases or decreases in the price of each version of the Institutional Subscription at annual anniversary points during the period in which the then-current Pricing Strategy will be in effect.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(d) | Comments closed

S 04.1.1.6.1.5

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e) The amount of discount, if any, that Google is authorized to offer to institutions and to Institutional Consortia.
Any discounts above the approved discount require Registry approval.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(e) | Comments closed

S 04.1.1.6.1.6

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f) The Price Change Cut Off Date.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(f) | Comments closed

S 04.1.1.6.2

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(2) Discounting. The initial Pricing Strategy will also include a discount from the List Prices that will be offered for a limited period of time to subscribers. This discount will be defined against the List Price and is designed to encourage potential customers to subscribe. The period for an initial discount will be included in the initial Pricing Strategy.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(2) | Comments closed

S 04.1.1.6.3

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(3) Duration. The period for the initial Pricing Strategy to be in effect is expected to be between two (2) and three (3) years. Google and the Registry shall agree as to the periods for which subsequent Pricing Strategies will be in effect.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(3) | Comments closed

S 04.1.1.6.4

Comments are closed.

(4) Process.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(4) | Comments closed

S 04.1.1.6.4.1

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a) Initial Pricing Strategies. The initial Pricing Strategy must be agreed upon by Google and the Registry before Google sells any Institutional Subscriptions. Google shall submit aproposed initial Pricing Strategy to the Registry by no later than one year after the Effective Date. Following submission of the initial Pricing Strategy, Google and the Registry shall negotiate for a period of up to one hundred and eighty (180) days. If, after one hundred and eighty (180) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on the initial Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(4), Section 4.1(a)(vi)(4)(a) | Comments closed

S 04.1.1.6.4.2

Comments are closed.

b) Subsequent Pricing Strategies. Google shall submit subsequent proposed Pricing Strategies to the Registry at least ninety (90) days prior to the expiration of the then-current Pricing Strategy, and Google and the Registry shall negotiate for a period of up to ninety (90) days. If, after ninety (90) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on such proposed Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution). In the event of such a dispute, the then-current Pricing Strategy will continue to apply unless and until the earlier of (1) Google and the Registry agreeing on a subsequent Pricing Strategy or (2) the Arbitrator rendering a Decision.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(4), Section 4.1(a)(vi)(4)(b) | Comments closed

S 04.1.1.7

Comments are closed.

(vii) Comparable Products and Services. FTE-based prices in the initial Pricing Strategy will be based upon then-current prices for comparable products and services, surveys of potential subscribers, and other methods for collecting data and market assessment. Google shall be responsible for collecting data comparing the target retail prices for the versions of the Institutional Subscription to the prices of similar products and services (including by use of a third party tocollect such data if the Registry requests that Google use a third party, which third party will be subject to the Registry’s approval not to be unreasonably withheld or delayed) and shall provide such data to the Registry.

Also posted in Article 04, Section 4.1, Section 4.1(a), Section 4.1(a)(vii) |