Category Archives: Settlement

S 07.2.2.03.2

Comments are closed.

(2) Replacement of Replacement Copies. Any replacement copy made by the Fully Participating Library under Section 7.2(b)(iii)(1) (Replacement Copy) that itself is damaged, destroyed, deteriorating, lost,or stolen may be replaced pursuant to this Section 7.2(b)(iii) (Replacements).

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(iii), Section 7.2(b)(iii)(2) | Comments closed

S 07.2.2.03.3

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(3) Limitation. Notwithstanding anything herein to the contrary (including Section 7.2(d) (Research Corpus)), any use by a Fully Participating Library of a print format replacement copy made under Section 7.2(b)(iii) (Replacements) is not subject to the terms of this Amended Settlement Agreement.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(iii), Section 7.2(b)(iii)(3) | Comments closed

S 07.2.2.04

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(iv) Finding Tools. The Fully Participating Library may develop or obtain and may deploy finding tools that allow its users to identify pertinent Books within its LDC or generate information from its LDC. Such tools or generated information will not permit users to read or view any material from the LDC that is Protected Expression, except that such users may read or view Front Matter Display and, in response to a search request, a limited number of Snippets for the purpose of enabling the user to verify which Book has been identified. For a No Display Book, if requested by a Rightsholder of that Book, Fully Participating Libraries will stop displaying Snippets as part of the finding tools. Such tools or generated information may not involve the creation of any additional copies of Protected Expression other than transitory copies for Non-Display Uses. For purpose of this provision, representations of Books in index form are not copies.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(iv) | Comments closed

S 07.2.2.05

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(v) Orphan Works. If the Copyright Act is amended after the Amended Settlement Agreement Date to allow use of orphan works, the Fully Participating Library may use such works from its LDC in accordance with the statute.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(v) | Comments closed

S 07.2.2.06

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(vi) Use for Non-Consumptive Research. Upon notice to the Registry in accordance with its Library-Registry (Fully Participating) Agreement, the Fully Participating Library may allow Qualified Users to conduct Non-Consumptive Research on its LDC, provided that such Fully Participating Library complies with the provisions of Section 7.2(d) (Research Corpus) as if such Fully Participating Library were a Host Site and as if the Fully Participating Library’s LDC were the Research Corpus.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(vi) | Comments closed

S 07.2.2.07

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(vii) Personal Scholarly Use and Classroom Use. The Fully Participating Library, if part of a Higher Education Institution, may allow faculty members and research staff of that Higher Education Institution to read, print, download or otherwise use up to five (5) pages of any Book from its LDC that is not Commercially Available for the following purposes: (1) personal scholarly use (for each Book, no more than once per person per term) and (2) classroom use in such Higher Education Institution that is limited to the instructors and students in the class and for the term in which the class is offered; provided that (a) the Fully Participating Library does not know at the time of such use that it is in material non-compliance with Section 8.2 (Security Standard, Security Implementation Plan and Security Audits) with respect to uses of the LDC authorized pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (b) the Fully Participating Library keeps track of and reports all such uses of Books to the Registry in the course of the audit conducted pursuant to Section 8.2(c) (Audits) or, otherwise, upon reasonable request of theRegistry, provided that such requests may be made no more than semi-annually. The Registry may make information from such reports regarding the usage of an individual Book available to the Rightsholder of such Book upon request of the Rightsholder. A Fully Participating Library may not read, print, download orotherwise use a Book or Insert through its LDC pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) if such use is available through the Institutional Subscription and the Institutional Subscription service is offered or is available to the Fully Participating Library (whether for a fee or as abeta product) at the time such Fully Participating Library seeks to make such use.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(vii) | Comments closed

S 07.2.2.08

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(viii) Support Personnel. (i) The Fully Participating Library may allow the Fully Participating Library’s support personnel, archivists, information technology personnel and legal counsel to read, print, download, or otherwise use Books from its LDC as reasonably necessary to carry out their responsibilities with respect to the LDC. A Hosting Fully Participating Library’s support personnel, information technology personnel and legal counsel may have access to the LDC of a Requesting Fully Participating Library as reasonably necessary to carry out their responsibilities with respect to hosting such LDC.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(viii) | Comments closed

S 07.2.2.09

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(ix) Other Uses.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(viii) | Comments closed

S 07.2.2.09.1

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(1) Approval by Registry. If agreed by the Registry, a Fully Participating Library may, upon request, make lawful uses of its LDC other than the uses authorized by this Amended Settlement Agreement, provided that such uses do not impair the rights of Rightsholders under this Amended Settlement Agreement.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(ix), Section 7.2(b)(ix)(1) | Comments closed

S 07.2.2.09.2

Comments are closed.

(2) Approval by Rightsholders. The Registry will forward requests from any Fully Participating Library for authorization from any Registered Rightsholder of a Book to make a use of its Digital Copy ofthat Book which use is otherwise prohibited or not authorized by this Amended Settlement Agreement. The Registry will provide a response to such Fully Participating Library promptly in the event that the Registered Rightsholder provides a response to the Registry and, if agreed by the Registered Rightsholder, allow the Fully Participating Library to contact the Registered Rightsholder directly to discuss such request. A Fully Participating Library may make uses of its LDC authorized by such Registered Rightsholder and consistent with such Fully Participating Library’s Digitization Agreement with Google.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(ix), Section 7.2(b)(ix)(2) | Comments closed

S 07.2.2.10

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(x) Use of Contractors.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(x) | Comments closed

S 07.2.2.10.1

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(1) Fully Participating Libraries Hosting for Other Fully Participating Libraries Any Fully Participating Library (the “Requesting Fully Participating Library”) may authorize another Fully Participating Library or group of Fully Participating Libraries acting together (each such other Fully Participating Library, a “Hosting Fully Participating Library”) to host and store the Requesting Fully Participating Library’s LDC in a single repository, separately or together with other Requesting Fully Participating LibrariesLDCs. The Hosting Fully Participating Library shall protect the security of the Requesting Fully Participating Library’s LDC from Prohibited Access and Third-Party Unauthorized Access in the same way that it is obligated to protect the security of its own LDC under Article VIII (Security and Breach). The Requesting Fully Participating Library may use its LDC as permitted under this Amended SettlementAgreement. The Hosting Fully Participating Library, and not the Requesting Fully Participating Library, shall be liable for the Hosting Fully Participating Library’s compliance with Article VIII (Security and Breach) with respect to the Requesting Fully Participating Library’s LDC hosted by the Hosting Fully Participating Library; provided that the Requesting Fully Participating Library is responsible for any act of the Requesting Fully Participating Library that results in any Prohibited Access or any Third-Party Unauthorized Access to its LDC. The Hosting Fully Participating Library may not make any use of the Requesting Fully Participating Library’s LDC, except to the extent required to host the Requesting Fully Participating Library’s LDC and to enable theRequesting Fully Participating Library to use its LDC as permitted under this Amended Settlement Agreement.

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(x), Section 7.2(b)(x)(1) | Comments closed

S 07.2.2.10.2

Comments are closed.

(2) Other Uses of Contractors. Any Fully Participating Library may authorize third parties to exercise rights on behalf of such Fully Participating Library or to perform any of its obligations under this Amended Settlement Agreement, including the hosting and storage of such Fully Participating Library’s LDC, in which case such Fully Participating Library shall, at all times, be and remain responsible for ensuring that such parties act in accordance with this Amended Settlement Agreement, except as set forth otherwise in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries). Such Fully Participating Library shall be liable for any such third party’s nonconformance with or breach of this Amended Settlement Agreement, and such breaches shall be regarded as breaches by such Fully Participating Library for purposes of Article VIII (Security and Breach), except as set forth otherwise in Section 7.2(b)(x)(1) (Fully Participating Libraries Hosting for Other Fully Participating Libraries).

Also posted in Article 7, Section 7.2, Section 7.2(b), Section 7.2(b)(x), Section 7.2(b)(x)(2) | Comments closed

S 07.2.3

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(c) Prohibited Uses of Library Digital Copies. Each Fully Participating Library is prohibited from making the following uses of its LDC unless authorized by (i) the Book Rightsholder pursuant to Section 7.2(b)(ix)(2) (Approval by Rightsholders) or otherwise or (ii) the Registry pursuant to Section 7.2(b)(ix)(1) (Approval by Registry):

Also posted in Article 7, Section 7.2, Section 7.2(c) | Comments closed

S 07.2.3.1

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(i) Directly or indirectly selling Books or access to Books;

Also posted in Article 7, Section 7.2, Section 7.2(c), Section 7.2(c)(i) | Comments closed

S 07.2.3.2

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(ii) Except as permitted pursuant to Section 7.2(b) (Use of Library Digital Copies), directly or indirectly providing access that enables any Person to read, print or download any Protected Expression from the LDC, provided, however, that if, at any time, an Institutional Subscription is neither offered by nor available from any of Google, an Additional Contemplated Rightsholder Services Provider or a Third-Party Required Library Services Provider, on the terms set forth in this Amended Settlement Agreement, such Fully Participating Library may, if part of a Higher Education Institution, for faculty, staff and students of, or other users who would be entitled to use the Institutional Subscription in, that Higher Education Institution, make use of Books in its LDC that are not Commercially Available at such time, except as prohibited by any of Section 7.2(c)(i), (iii), (iv), (v), or (vi), if (A) such use is first approved by both (1) the University Librarian of such Fully Participating Library, his or her functional equivalent, or his or her designee, and (2) the General Counsel of such Fully Participating Library, his or her functional equivalent, or his or her designee; and (B) such Fully Participating Library maintains records of any such uses and submits reports of such uses to the Registry promptly upon request from the Registry, provided that such requests may be made no more than semi-annually;

Also posted in Article 7, Section 7.2, Section 7.2(c), Section 7.2(c)(ii) | Comments closed

S 07.2.3.3

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(iii) For inter-library loan;

Also posted in Article 7, Section 7.2, Section 7.2(c), Section 7.2(c)(iii) | Comments closed

S 07.2.3.4

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(iv) For e-reserves;

Also posted in Article 7, Section 7.2, Section 7.2(c), Section 7.2(c)(iv) | Comments closed

S 07.2.3.5

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(v) In course management systems; and

Also posted in Article 7, Section 7.2, Section 7.2(c), Section 7.2(c)(v) | Comments closed

S 07.2.3.6

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(vi) Any other use not so authorized that would violate the U.S. copyright of the Rightsholder of such Book.

Also posted in Article 7, Section 7.2, Section 7.2(c), Section 7.2(c)(vi) | Comments closed

S 07.2.4

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(d) Research Corpus.

Also posted in Article 7, Section 7.2, Section 7.2(d) | Comments closed

S 07.2.4.01

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(i) Creation and Use. The Research Corpus may be created and used for Non-Consumptive Research in accordance with this Section 7.2(d) (Research Corpus).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(i) | Comments closed

S 07.2.4.02

Comments are closed.

(ii) Host Sites. The Research Corpus may be hosted at up to two Host Sites at any given time. At the request of a Fully Participating Library or a Cooperating Library, Google may also become a Host Site (which would be a third Host Site if the Research Corpus is already hosted at two Host Sites) with the approval of the Registry, such approval not to be unreasonably withheld or delayed. Each Host Site must be located in the United States. The Host Sites will be chosen by the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, in consultation with Google.Google will inform the Registry of the identity of each Host Site. Any Host Site that is not a Fully Participating Library, a Cooperating Library or Google must be approved by the Registry, such approval not to be unreasonably withheld or delayed; provided, however, that in all cases the Registry may only withhold its approval for an institution to become a Host Site due to (1) reasonable concerns as to whether the Host Site can comply with the obligations imposed on a Host Site by this Amended Settlement Agreement or the Host Site-Registry Agreement or (2) the Host Site expressing its intent not to comply with the obligations imposed on a Host Site by this Amended Settlement Agreement or the Host Site-Registry Agreement. An institution becomes a Host Site upon execution of an agreement with the Registry (the “Host Site-Registry Agreement”) that incorporates the applicable provisions of this Section 7.2(d) (Research Corpus), Article VIII (Security and Breach), the Security Standard, the provisions of Article IX (Dispute Resolution) and other reasonable terms, and upon provision of a Security Implementation Plan under the procedures of Article VIII (Security and Breach); provided that Google is not required to execute a Host-Site Registry Agreement in order to become a Host Site; provided, further, that if Google becomes a Host Site, Google shall comply with this Section 7.2(d) (Research Corpus) and with the procedures of Article VIII (Security and Breach) applicable to a Host Site and any access by Google in breach of the terms of this Section 7.2(d) (Research Corpus) shall constitute Prohibited Access. The Host Site-Registry Agreement will authorize the Host Site to enter into agreements with Qualified Users, reviewers and challengers pursuant to Section 7.2(d)(xi)(2) (Research Agenda) and Section 7.2(d)(xi)(8) (Reviewers and Challengers) on behalf of the Registry, as the Registry’s agent. Any disputes between the Registry and the Host Site as to the terms to be included in the Host Site-Registry Agreement shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(ii) | Comments closed

S 07.2.4.03

Comments are closed.

(iii) Qualified Users; Non-Consumptive Research. The Host Sites may provide both on-site and remote access to Qualified Users to use the Research Corpus for Non-Consumptive Research purposes only and to reviewers and challengers of such Non-Consumptive Research, subject to Section 7.2(d)(xi)(8)(Reviewers and Challengers). Only Qualified Users, reviewers and challengers, and the Host Site will have access to the Research Corpus, and only for the purposes set forth in this Section 7.2(d) (Research Corpus).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(iii) | Comments closed

S 07.2.4.04

Comments are closed.

(iv) Right to Withdraw Library Scans. 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 theNotice Commencement Date, a Rightsholder of such Library Work may, at any time during such two (2)-year period or thereafter, withdraw the Library Scan of that Library Work from the Research Corpus; provided that, if, at any time after the end of such two (2)-year period the Library Work ceases to be CommerciallyAvailable, then the Library Scan of that Library Work will be returned to the Research Corpus. If, as of the Notice Commencement Date, a Library Work for which Google uses a Library Scan is not Commercially Available but Google mistakenly determined it to be Commercially Available, and such Library Workdoes not become Commercially Available at any time during the two (2)-year period following the Notice Commencement Date, then upon determination that the Library Work is not Commercially Available after such two (2)-year period, the Rightsholder will not have any right to withdraw such Library Scan from theResearch Corpus pursuant to this Section 7.2(d)(iv)(Right to Withdraw Library Scans). If, as of the Notice Commencement Date or at any time during the two (2)-year period following the Notice Commencement Date, a Library Work is Commercially Available but is mistakenly determined to be not Commercially Available, then, upon determination that such Library Work is Commercially Available, the Rightsholder will have the right to withdraw the Library Scan of that Library Work from the Research Corpus; 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, if the Library Scan of such Library Work had been previously withdrawn, such Library Scan will be returned to the Research Corpus. This Amended Settlement Agreement does not restrict the addition of other books to the Research Corpus (e.g., Public Domain Books and Books obtained from the Google Partner Program Digitized with authorization from the Rightsholder).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(iv) | Comments closed

S 07.2.4.05

Comments are closed.

(v) Identification of Works in Research Corpus. Google or the Host Site will make available to Qualified Users information about what Books are included in the Research Corpus.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(v) | Comments closed

S 07.2.4.06

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(vi) Limitations on Non-Consumptive Research. The Host Site shall be responsible for oversight over research performed on the Research Corpus so that such research adheres to the following limitations:

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(vi) | Comments closed

S 07.2.4.06.1

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(1) No Person may, in the course of conducting, reviewing or challenging the results of, Non-Consumptive Research use Protected material through the Research Corpus for purposes that involve reading portions of a Book to understand the intellectual content presented within a Book;

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(vi), Section 7.2(d)(vi)(1) | Comments closed

S 07.2.4.06.2

Comments are closed.

(2) It is permissible, however, for Qualified Users to read Protected material within the Research Corpus as reasonably necessary to carry out Non-Consumptive Research, and for reviewers or challengers of the results of Non-Consumptive Research to read Protected material as reasonably necessary to analyze or verify such results; and

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(vi), Section 7.2(d)(vi)(2) | Comments closed

S 07.2.4.06.3

Comments are closed.

(3) A Qualified User may extract from the Research Corpus and disclose to other Persons only a limited amount of Protected material as reasonably necessary to explain or discuss the Non-Consumptive Research and its results.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(vi), Section 7.2(d)(vi)(3) | Comments closed

S 07.2.4.07

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(vii) Publication of Results. Qualified Users are permitted to report the results of their Non-Consumptive Research in scholarly publications, which may constitute indirect commercial use (e.g., reporting results in journal articles or in books sold to the academic community or to the public).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(vii) | Comments closed

S 07.2.4.08

Comments are closed.

(viii) No Commercial Use. Except with the express permission of the Registry and Google, direct, for profit, commercial use of information extracted from Books in the Research Corpus is prohibited.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(viii) | Comments closed

S 07.2.4.09

Comments are closed.

(ix) Use of Data. Use of data extracted from specific Books within the Research Corpus to provide services to the public or a third party that compete with services offered by the Rightsholder of those Books or by Google is prohibited. When requested by a Rightsholder or by the Registry on behalf of a Rightsholder, a Qualified User will be required to remove any and all data extracted from the Books of that Rightsholder from a service offered to the public or a third party by the Qualified User if that service competes with services offered by the Rightsholder of those Books. When requested by Google, a Qualified User will be required to remove any and all data extracted from Books from a service offered to the public or a third party by the Qualified User if that service can reasonably be construed as competing with services offered by Google at the time the Qualified User’s service is first made accessible.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(ix) | Comments closed

S 07.2.4.10

Comments are closed.

(x) Use of Algorithms. Commercial exploitation of algorithms developed when performing Non-Consumptive Research on the Research Corpus is permitted.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(x) | Comments closed

S 07.2.4.11

Comments are closed.

(xi) Governance and Maintenance. Governance of the maintenance and use of the Research Corpus shall be as follows:

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi) | Comments closed

S 07.2.4.11.1

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(1) Qualified Users Only. Only Qualified Users will be permitted to conduct Non-Consumptive Research using the Research Corpus.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(1) | Comments closed

S 07.2.4.11.2

Comments are closed.

(2) Research Agenda. Prior to engaging in Non-Consumptive Research, a Qualified User will file with the Host Site: (a) a Research Agenda, (b) an agreement between the Qualified User and the Host Site,as agent for the Registry, that prohibits access to and use of the Research Corpus except for permitted Non-Consumptive Research and that makes the Qualified User directly liable to the Registry for any breach of its terms, and (c) a letter from a Fully Participating Library, a Cooperating Library, the Registry, Google or the Host Site indicating that the submitting entity will accept responsibility for the Qualified User’s use ofthe Research Corpus. The Host Site shall maintain these documents on file and shall make them available to the auditors for review pursuant to Section 7.2(d)(xi)(6) (Audits). Except to the extent that disclosure isrequired by law or this Amended Settlement Agreement, the Host Site, the Registry and auditors will treat all Research Agendas as confidential.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(2) | Comments closed

S 07.2.4.11.3

Comments are closed.

(3) Review of Research Agenda. Prior to allowing a Qualified User access to the Research Corpus, the Host Site will review each Research Agenda for the purpose of determining whether the agenda demonstrates that the research will be Non-Consumptive Research. Through the audit performed pursuant to Section 7.2(d)(xi)(6) (Audits), the Registry reserves the right to verify that the Host Site implements such review process.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(3) | Comments closed

S 07.2.4.11.4

Comments are closed.

(4) Reasonable Discretion. A Host Site may deny a Qualified User’s access to the Research Corpus at its reasonable discretion.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(4) | Comments closed

S 07.2.4.11.5

Comments are closed.

(5) Management. Each Host Site will manage the Research Corpus in adherence with the governance and maintenance provisions of this Section 7.2(d)(xi) (Governance and Maintenance).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(5) | Comments closed

S 07.2.4.11.6

Comments are closed.

(6) Audits. Regular audits of each Host Site will be performed by a qualified third party reasonably acceptable to the Registry and the Host Site to ensure compliance with the governance and use terms set forth in this Section 7.2(d)(xi) (Governance and Maintenance). The audit shall be subject to reasonable prior notice to the Host Site, shall be conducted during the Host Site’s normal business hours and shall be conducted no more than once in any twelve (12)-month period. The costs of the audit will be subject to the terms of Section 8.2(c) (Audits).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(6) | Comments closed

S 07.2.4.11.7

Comments are closed.

(7) Development. Each Host Site will have the ability to access the Research Corpus for purposes of developing, testing and maintaining the Host Site platform, creating back-up copies of the Research Corpus, and keeping the Research Corpus technologically current.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(7) | Comments closed

S 07.2.4.11.8

Comments are closed.

(8) Reviewers and Challengers. Prior to a Qualified User providing reviewers and challengers with access to Books within the Research Corpus, such reviewers and challengers shall execute an agreement with the Host Site, as agent for the Registry, limiting their use to reviewing and challenging the research conducted pursuant to Section 7.2(d)(xi)(2) (Research Agenda).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xi), Section 7.2(d)(xi)(8) | Comments closed

S 07.2.4.12

Comments are closed.

(xii) No Other Restrictions. None of the restrictions in this Section isintended to limit the right to access or use (1) any copyrighted material obtainedfrom sources outside of the Research Corpus or (2) except as specifically set forth in Section 7.2(d)(viii) (No Commercial Use) and Section 7.2(d)(ix) (Use of Data), any material not Protected under the Copyright Act.

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xii) | Comments closed

S 07.2.4.13

Comments are closed.

(xiii) Costs. The Registry is not responsible for any costs relating to the use of the Research Corpus, except as specifically set forth in Section 8.2(c)(Audits).

Also posted in Article 7, Section 7.2, Section 7.2(d), Section 7.2(d)(xiii) | Comments closed

S 07.2.5

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(e) Required Library Services Requirement.

Also posted in Article 7, Section 7.2, Section 7.2(e) | Comments closed

S 07.2.5.1

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(i) Obligation. Google will provide the following services listed in clauses (1) and (2) below (together, “Required Library Services”) by no later than five (5) years from the Effective Date:

Also posted in Article 7, Section 7.2, Section 7.2(e), Section 7.2(e)(i) | Comments closed

S 07.2.5.1.1

Comments are closed.

(1) For eighty-five percent (85%) of Library Scans other than (a) Not Counted Library Works and (b) Display Books, free search services Online through Google Products and Services (including Preview Use or Snippet Display if permitted under this Agreement) and a Library Link; and

Also posted in Article 7, Section 7.2, Section 7.2(e), Section 7.2(e)(i), Section 7.2(e)(i)(1) | Comments closed

S 07.2.5.1.2

One response to “S 07.2.5.1.2”

  1. EFFred says:

    How does this intersect with the Google “exclusion power” for “editorial reasons” under Section 3.7(e)? Under that section, Google has a duty to disclose such exclusions and make the scans available to the Registry. However, under this provision, Google can simply fail to deliver search, Library Links, Public Access Service, or ISD access for up to 15% of Display Books. Doesn’t that effectively give Google unfettered discretion to make as many as 15% of the books effectively “disappear” without explanation (while still including them in Google’s own corpus for their own internal research)?

(2) For eighty-five percent (85%) of Library Scans other than (a) Not Counted Library Works, (b) No Display Books, and (c) Library Scans that are not authorized to be included in Institutional Subscriptions pursuant to the terms of this Amended Settlement Agreement, free search services Online through Google Products and Services (including Preview Use or Snippet Display if permitted under this Agreement), a Library Link, the Public Access Service, and Institutional Subscription for Higher Education Institutions.

Also posted in Article 7, Section 7.2, Section 7.2(e), Section 7.2(e)(i), Section 7.2(e)(i)(2) | Comments closed

S 07.2.5.2

Comments are closed.

(ii) Third-Party Required Library Services Provider. If Google fails tomeet the Required Library Services Requirement, or if Google gives notice to theRegistry, the Fully Participating Libraries and the Cooperating Libraries of itsintent not to meet the Required Library Services Requirement at any time after the Effective Date, and does not cure this failure within ninety (90) days after notice from the Fully Participating Libraries and the Cooperating Libraries invoking this provision, acting through the Designated Representative, then the Fully Participating Libraries and the Cooperating Libraries, or the Registry, may seek to engage one or more third parties (each, a “Third-Party Required Library Services Provider”) to provide any or all of the Required Library Services (provided that, at a minimum, the Third-Party Required Library Services Provider provides at least one of the Required Library Services not provided by Google that caused the foregoing right to use a Third-Party Required Library Services Provider to be triggered) on substantially the same terms described in this Amended Settlement Agreement. Any such arrangement will be subject to the consent of each of (1) the Registry and (2) the Fully Participating Libraries and the Cooperating Libraries, acting through the Designated Representative, which consents shall not be unreasonably withheld or delayed. If a Third-Party Required Library Services Provider is identified and the foregoing required consents are obtained, then Google will provide such Third-Party Required Library Services Provider with a Digital Copy of Library Scans (excluding particular Library Scans that are restricted from further distribution under the Digitization Agreement between Google and a Fully Participating Library or a Cooperating Library) to be used solely to provide Required Library Services (as such Required Library Services may evolve over time) in accordance with the terms of this Amended Settlement Agreement and the terms of Google’s Digitization Agreements with each of the Fully Participating Libraries and the Cooperating Libraries. If, within one hundred and twenty (120) days after the Fully Participating Libraries and the Cooperating Libraries invoke this provision following such failure by Google, a Third-Party Required Library Services Provider has not been agreed upon, then the Fully Participating Libraries and the Cooperating Libraries, if they wish, may continue to attempt to engage a Third-Party Required Library Services Provider in the manner described above or may elect to provide the Required Library Services themselves. Any such self-provision shall be subject to the applicable terms of this Amended Settlement Agreement and to the Registry’s approval, which approval shall not be unreasonably withheld or delayed. In any event, the Fully ParticipatingLibraries may continue to use their LDCs in accordance with Section 7.2(b) (Use of Library Digital Copies), Non-Consumptive Research may continue to be conducted using the Research Corpus in accordance with the provisions of Section 7.2(d) (Research Corpus), and the requirement that the Fully Participating Libraries and the Host Sites comply with the Security Standard in Article VIII (Security and Breach) will continue to be in effect. Any Third-Party Required Library Services Provider is, in connection with any Claim arising out of its providing any or all of the Required Library Services, deemed to be a successor of Google for purposes of Section 10.1(g) (Google Releasees).

Also posted in Article 7, Section 7.2, Section 7.2(e), Section 7.2(e)(ii) | Comments closed

S 07.2.5.3

Comments are closed.

(iii) Reporting. Upon request by the Fully Participating Libraries and the Cooperating Libraries, Google will provide such libraries with reasonable information regarding the number of Library Scans and the Required Library Services being provided by Google to determine Google’s compliance with the standard set forth in Section 7.2(e)(i) (Obligation).

Also posted in Article 7, Section 7.2, Section 7.2(e), Section 7.2(e)(iii) | Comments closed

S 07.2.5.4

Comments are closed.

(iv) Exercise or Waiver of Rights. The Fully Participating Libraries and the Cooperating Libraries may exercise their rights under this Section 7.2(e)(Required Library Services Requirement) or may consent to any agreement between Google and the Registry to waive the Required Library Services Requirement as to all Library Scans, acting through the Designated Representative. Further, the Fully Participating Libraries and the Cooperating Libraries may exercise their rights under Section 3.7(c) (Additional Contemplated Rightsholder Services Provider) with respect to Contemplated Rightsholder Services or may consent to any agreement between Google and the Registry towaive Google’s obligation to provide Contemplated Rightsholder Services as to all Library Scans, acting through the Designated Representative.

Also posted in Article 7, Section 7.2, Section 7.2(e), Section 7.2(e)(iv) | Comments closed

S 07.2.6

Comments are closed.

(f) Third-Party Beneficiary.

Also posted in Article 7, Section 7.2, Section 7.2(f) | Comments closed

S 07.2.6.1

Comments are closed.

(i) Fully Participating Libraries. With respect to the use of Books andInserts, the Library-Registry (Fully Participating) Agreement will bind a Fully Participating Library only with respect to the LDC. Plaintiffs and Google acknowledge and agree that each such Fully Participating Library is a third-party beneficiary of the following provisions of this Amended Settlement Agreement, entitled toenforce such provisions directly, as if such Fully Participating Library were aparty hereto: (i) Article X (Releases) (as applicable to Fully Participating Libraries) and (ii) the terms of Sections 1.281.31 (Commercially Available), 3.2(d)(iii) (Mistakes), 3.5(a)(ii) (Back-up Storage), 3.5(b)(i)(1) (Exclusion from Library Digital Copy), 3.5(b)(iii) (Coupling Requirement), 3.5(b)(v) (Waiver of Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e)(i) (Digital Copy of Excluded Books), 4.1(d) (Basic Features of Institutional Subscriptions), 4.1(e) (Institutional Subscription Terms and Conditions), 4.1(f) (Subscriber Experience), 6.2(a) (Not-For-Profit Entity), 6.3 (Unclaimed and Public Domain Funds), 6.5(b) (Data for Fully Participating Libraries) and 17.14 (No Liability for Consequential Damages) and Articles VII (Fully Participating Library and Cooperating Library Rights and Obligations) and VIII (Security and Breach). Any action to enforce any such provision that arises out of the samefacts or breach brought by one or more Fully Participating Libraries and, pursuant to Section 7.2(f)(ii) (Cooperating Libraries), one or more Cooperating Libraries, must be brought by all such libraries as a single consolidated action, to the extent that such consolidation is permitted by the Court or Arbitrator, with one such Fully Participating Library or Cooperating Library, and/or one counsel for all the libraries bringing such action, having primary responsibility for communicating with the party or parties against which the action is brought.

Also posted in Article 7, Section 7.2, Section 7.2(f), Section 7.2(f)(i) | Comments closed

S 07.2.6.2

Comments are closed.

(ii) Cooperating Libraries. Plaintiffs acknowledge and agree that each Cooperating Library is a third-party beneficiary of the following provisions of this Amended Settlement Agreement, entitled to enforce such provisions directly, as if such Cooperating Library were a party hereto: (i) Article X (Releases) (as applicableto Cooperating Libraries) and (ii) the terms of Sections 1.28 1.31 (CommerciallyAvailable), 3.2(d)(iii) (Mistakes), 3.5(b)(iii) (Coupling Requirement), 3.5(b)(v) (Waiver of Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder Services Provider), 3.7(e)(i) (Digital Copy of Excluded Books), 4.1(d) (Basic Features of Institutional Subscriptions), 4.1(e) (Institutional Subscription Terms and Conditions), 4.1(f) (Subscriber Experience), 6.2(a) (Not-For-Profit Entity), 6.3 (Unclaimed Funds and Public Domain Funds), and 17.14 (No Liability for Consequential Damages) and Article VII (Fully Participating Library and Cooperating Library Rights and Obligations). Any action to enforce any such provision that arises out of the same facts or breach brought by one or more Cooperating Libraries and, pursuant to Section 7.2(f)(i) (Fully Participating Libraries), one or more Fully Participating Libraries, must be brought by all such libraries as a single consolidated action, to the extent such consolidation is permitted by the Court or Arbitrator, with one such Cooperating Library or Fully Participating Library, and/or one counsel for all the libraries bringing such action,having primary responsibility for communicating with the party or parties againstwhich the action is brought.

Also posted in Article 7, Section 7.2, Section 7.2(f), Section 7.2(f)(ii) | Comments closed

S 07.2.6.3

Comments are closed.

(iii) Failure to Comply. No failure by a Fully Participating Library or a Cooperating Library to comply with its Library-Registry Agreement will affect such library’s third-party beneficiary rights specified in Section 7.2(f)(i) (Fully Participating Libraries) and Section 7.2(f)(ii) (Cooperating Libraries), respectively.

Also posted in Article 7, Section 7.2, Section 7.2(f), Section 7.2(f)(iii) | Comments closed

S 07.2.6.4

Comments are closed.

(iv) No Modification Without Consent. None of the provisions set forth in paragraphs (i) -(iii) above, this paragraph (iv), or the provisions referred to therein as to which the Fully Participating Libraries or the Cooperating Libraries, as applicable, are express third-party beneficiaries may be modified oramended in a way that negatively affects the interests of the Fully Participating Libraries or the Cooperating Libraries, as applicable, without their agreement,acting through the Designated Representative. In addition, the provisions of Sections 2.2 (Authorization of Google, Fully Participating Libraries and Cooperating Libraries), 3.1(a) (Non-Exclusive Digitization Rights), 4.1(a)(i) (Objectives) and 6.6 (d) (Claimed Books to be Public) may not be modified or amended in a way that negatively affects the interests of the Fully Participating Libraries or the Cooperating Libraries without the agreement of the Fully Participating Libraries and the Cooperating Libraries, as applicable, acting through the Designated Representative.

Also posted in Article 7, Section 7.2, Section 7.2(f), Section 7.2(f)(iv) | Comments closed

S 07.2.6.5

Comments are closed.

(v) Related Agreements with Google. Each Fully Participating Library and each Cooperating Library also may enter into a separate agreement with Google (or an amendment to its current Digitization Agreement with Google) setting forth other agreements between them relating to this Amended Settlement Agreement, including agreements, if any, setting forth which provisions of this Amended Settlement Agreement. Google is required to enforce (which provisions may be publicized by Google and/or such Fully Participating Library or Cooperating Library); provided, however, that no such amendment or other agreement will permit any Fully Participating Library to make any uses of its LDC that are prohibited by its Library-Registry (Fully Participating) Agreement or by this Amended Settlement Agreement.

Also posted in Article 7, Section 7.2, Section 7.2(f), Section 7.2(f)(v) | Comments closed

S 07.2.7

Comments are closed.

(g) Accommodated Service.

Also posted in Article 7, Section 7.2, Section 7.2(g) | Comments closed

S 07.2.7.1

Comments are closed.

(i) Definition. “Accommodated Service” means a service that offers the text of Books to users of Access Uses and other Revenue Models in the form of electronic text used in conjunction with screen enlargement, voice output, and refreshable Braille displays, or, at Google’s option and with the Registry’sapproval, other technologies to reasonably accommodate Print Disabilities, at no greater charge than the charge to view Books in a similar manner to users of Access Uses and other Revenue Models without a Print Disability.

Also posted in Article 7, Section 7.2, Section 7.2(g), Section 7.2(g)(i) | Comments closed

S 07.2.7.2

Comments are closed.

(ii) Google Intention. Google intends to make Digital Copies of Books and Inserts accessible to users with Print Disabilities consistent with Section 3.3(d) (Accommodation of Print Disabilities). To the extent that Google is unable to make Books and Inserts accessible as set out in Section 7.2(g)(ii)(1) (Offering of Accommodated Service), Google will reasonably cooperate to enable access to Books and Inserts pursuant to Section 7.2(g)(ii)(2) (Alternative Accommodated Service Providers).

Also posted in Article 7, Section 7.2, Section 7.2(g), Section 7.2(g)(ii) | Comments closed

S 07.2.7.2.1

Comments are closed.

(1) Offering of Accommodated Service. To satisfy the requirements of this Section 7.2(g) (Accommodated Service]), Google must (a) use commercially reasonable efforts to enable an Accommodated Service for Books and Inserts for Access Uses and other Revenue Models as authorized under this Amended Settlement Agreement; (b) for users of the Institutional Subscription with Print Disabilities, offer an Accommodated Service for all Books and Inserts in the Institutional Subscription Database for which Google’s automated OCR system is successful; and (c) not unreasonably withhold its consent to a request from a Fully Participating Library to work with particular third-party contractors to provide access to the full text of Books and Inserts as described in this Section 7.2(g) (Accommodated Service) and to improve the quality of such Books (e.g., OCR quality and structure extraction) for the purpose of providing suchaccess. In order to develop the Accommodated Service, Google may work with any third parties to provide access to the full text of Books and Inserts as described in this Section 7.2(g)(ii)(1) (Offering of Accommodated Service), and to improve the quality of such Books (e.g., OCR quality and structure extraction) for the purpose of providing such access. The third-party contractors working with Google in such efforts shall not otherwise be permitted to use or distribute such Books or Inserts and, when such efforts are completed, shall return any such Books and Inserts to Google and delete all copies of any such Books and Inserts that have been provided by Google or created by any such third-party contractors in the course of such efforts.

Also posted in Article 7, Section 7.2, Section 7.2(g), Section 7.2(g)(ii), Section 7.2(g)(ii)(1) | Comments closed

S 07.2.7.2.2

Comments are closed.

(2) Alternative Accommodated Service Provider.

Also posted in Article 7, Section 7.2, Section 7.2(g), Section 7.2(g)(ii), Section 7.2(g)(ii)(2) | Comments closed

S 07.2.7.2.2.1

Comments are closed.

a) Identification of Alternative Accommodated Service Provider. If, within five (5) years from the Effective Date, Google has not complied with Section 7.2(g)(ii)(1) (Offering of Accommodated Service), or if, following such five (5)-year period, Google ceases to comply with Section 7.2(g)(ii)(1) (Offering of Accommodated Service), then, upon notice to Google and theRegistry by the Fully Participating Libraries and the Cooperating Libraries acting through the Designated Representative, Google shall use commercially reasonable efforts to identify and work with an alternative provider (the “Alternative Accommodated Service Provider”) to readily provide copies of Books and Inserts requested by the Alternative Accommodated Service Providersolely for the purpose of the Alternative Accommodated Service Provider making Digital Copies of these Books and Inserts accessible to users with Print Disabilities.

Also posted in Article 7, Section 7.2, Section 7.2(g), Section 7.2(g)(ii), Section 7.2(g)(ii)(2), Section 7.2(g)(ii)(2)(a) | Comments closed

S 07.2.7.2.2.2

Comments are closed.

b) Agreement With Alternative Accommodated Service Provider. The Alternative Accommodated Service Provider will enter into an agreement with Google and the Registry that includes terms protecting the security of the Books and Inserts, terms similar to those contained in Section 7.2(b)(ii) (Users with Print Disabilities) and terms that require the Alternative Accommodated Service Provider to make available to users with Print Disabilities the services of an “authorized entity” within the meaning of 17 U.S.C. § 121. The terms of any such agreements shall be made available to the Designated Representative.

Also posted in Article 7, Section 7.2, Section 7.2(g), Section 7.2(g)(ii), Section 7.2(g)(ii)(2), Section 7.2(g)(ii)(2)(b) | Comments closed

S 07.3

Comments are closed.

Google’s Obligations.

Also posted in Article 7, Section 7.3 | Comments closed

S 07.3.1

Comments are closed.

(a) Notification of Libraries. Google will notify each library providing Books to Google as part of the GLP pursuant to a Digitization Agreement of the requirements to become a Fully Participating Library if it wishes to have a LDC, and will use commercially reasonable efforts to obtain such library’s agreement to enter into the Library-Registry (Fully Participating) Agreement and become a Fully Participating Library.

Also posted in Article 7, Section 7.3, Section 7.3(a) | Comments closed

S 07.3.2

Comments are closed.

(b) Breach By Participating or Cooperating Libraries. Google will reasonably cooperate with the Rightsholders and/or the Registry in connection with any material breach by a Fully Participating Library or a Cooperating Library of its Library-Registry Agreement or the terms of this Amended Settlement Agreement applicable to such Fully Participating Library or Cooperating Library; provided, however, that Google is not required to disclose confidential or personally identifiable information other than as required by law or valid legal process.

Also posted in Article 7, Section 7.3, Section 7.3(b) | Comments closed

S 07.4

Comments are closed.

Fully Participating Libraries’ and Cooperating Libraries’ Exercise of Collective Rights.

Also posted in Article 7, Section 7.4 | Comments closed

S 07.4.1

Comments are closed.

(a) Designated Representative and Security Representatives.

Also posted in Article 7, Section 7.4, Section 7.4(a) | Comments closed

S 07.4.1.1

Comments are closed.

(i) Role. To the extent that Sections 3.5(b)(v) (Waiver of Coupling Requirement), 3.7(c) (Additional Contemplated Rightsholder Services Provider), 6.3(a) (Unclaimed Funds), 7.2(d)(ii) (Host Sites), 7.2(e)(ii) (Third-Party Required Library Services Provider), 7.2(e)(iv) (Exercise or Waiver of Rights), 7.2(f)(iv)(No Modification Without Consent), 7.2(g)(ii)(2) (Alternative Accommodated Service Provider), 7.5 (Meetings to Discuss Library Uses) and 8.2(b) (Changes to Security Standard) contemplate that any Fully Participating Library or Cooperating Library may exercise rights or waive rights acting through the Designated Representative or Security Representatives, such library may do so only by acting through the Designated Representative or Security Representatives, as applicable. Google and the Registry, in dealing with the Fully Participating Libraries and the Cooperating Libraries, are obligated to accept instructions, decisions and positions only from such Designated Representative or Security Representatives, as applicable, regarding such matters. Google and the Registry may rely on instructions, decisions and positions provided to Google and the Registry by the Designated Representative or Security Representatives, as applicable. All Fully Participating Libraries and all Cooperating Libraries shall be bound by the instructions, decisions and positions conveyed to Google and the Registry by the Designated Representative or Security Representatives, as applicable, regarding all matters referenced in the Sections set forth in the first sentence of this Section 7.4(a) (Designated Representative and Security Representatives).

Also posted in Article 7, Section 7.4, Section 7.4(a), Section 7.4(a)(i) | Comments closed

S 07.4.1.2

Comments are closed.

(ii) Selection and Failure to Select. The Fully Participating Libraries and the Cooperating Libraries shall select a Designated Representative within thirty (30) days after the Effective Date, and the Fully Participating Libraries shall select Security Representatives by the two (2)-year anniversary of the Effective Date. If, after the date set for the appointment of the initial Designated Representative or of the initial Security Representatives, as the case may be, the Registry or Google requests the consent, waiver or agreement of the Designated Representative or of the Security Representatives, as the case may be, and if the Designated Representative or Security Representatives, as the case may be, fail to respond (whether due to failure to have been appointed or otherwise) to such request within sixty (60) days, then the Registry or Google, as the case may be, may extend such sixty (60)-day period or, if not extended, may proceed as if such consent, waiver or agreement had been given; provided that, the Registry or Google, as the case may be, will give ten (10) days’ prior notice of its intent to proceed unless the Designated Representative or Security Representatives, as the case may be, respond within such ten (10)-day period. Any such request shall be made in writing by Google or the Registry to the Designated Representative or the Security Representatives, as the case may be, if so appointed at the time. However, if the Registry makes such a request of the Designated Representative or the Security Representatives, and no Designated Representative or SecurityRepresentatives, as the case may be, have been appointed at the time, then the Registry may direct such request to Google. Any such request directed to Google satisfies the foregoing expectation that the Registry will deal with the Designated Representative or Security Representatives, as the case may be. In addition, to the extent Google provides instructions, decisions or positions in response to such request, the Registry’s obligation to accept instructions, decisions and positions only from the Designated Representative or the Security Representatives, as the case may be, is fulfilled; provided that if Google fails to respond to such request within sixty (60) days, then the Registry may extend such sixty (60)-day period or, if not extended, may proceed as if such consent, waiver or agreement had been given.

Also posted in Article 7, Section 7.4, Section 7.4(a), Section 7.4(a)(ii) | Comments closed

S 07.4.2

Comments are closed.

(b) Notification of Identity. One of the Fully Participating Libraries or the Cooperating Libraries will notify Google and the Registry of the initial Designated Representative and one of the Fully Participating Libraries will notify Google and the Registry of the initial Security Representatives by written notice, which written notice shall be signed on behalf of (but not necessarily by) all Fully Participating Libraries and Cooperating Libraries in the case of the Designated Representative, or on behalf of (but not necessarily by) all Fully Participating Libraries in the case of the Security Representatives. Any changes in the identity of the Designated Representative or Security Representatives shall be communicated promptly to Google and the Registry by one of the Fully Participating Libraries, by one of the Cooperating Libraries or by the existing or previous Designated Representative or an existing or previous Security Representative, as applicable.

Also posted in Article 7, Section 7.4, Section 7.4(b) | Comments closed

S 07.4.3

Comments are closed.

(c) Authority. The Designated Representative will not have independent authority to make decisions on behalf of the Fully Participating Libraries and/or theCooperating Libraries, as the case may be, but will, instead, convey to Google and/or the Registry, as applicable, instructions, decisions and positions of the Fully Participating Libraries and the Cooperating Libraries on matters as referred to in Section 7.4(a) (Designated Representative and Security Representatives).

Also posted in Article 7, Section 7.4, Section 7.4(c) | Comments closed

S 07.4.4

Comments are closed.

(d) Revocation of Instructions, Decisions and Positions. If any Fully Participating Library or Cooperating Library believes that the Designated Representative, or if any Fully Participating Library believes that the Security Representatives, have conveyed to Google and/or the Registry any instructions, decisions or positions of the Fully Participating Libraries and/or the Cooperating Libraries, as the case may be, that had not been agreed upon in accordance with the governance rules established 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), then such Fully Participating Library or Cooperating Library in thecase of instructions, decisions or positions of the Designated Representative, or such Fully Participating Library in the case of instructions, decisions or positions of the Security Representatives, may countermand such instruction, decision or position in writing to Google and/or the Registry, as applicable, and Google and/or the Registry, as applicable, will, only if it has not yet acted upon such instruction, decision or position, delay acting upon such instruction, decision or position unless and until the Designated Representative or Security Representatives, as applicable, re-affirms such instruction, decision or position to Google and/or the Registry, as applicable.

Also posted in Article 7, Section 7.4, Section 7.4(d) | Comments closed

S 07.4.5

Comments are closed.

(e) Selection Process and Establishment of Governance Rules. 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 Representatives and Security Representatives) and Establishment of Governance Rules) establishes the process for selecting the Designated Representative and Security Representatives and for establishing governance rules among the Fully Participating Libraries and the Cooperating Libraries.

Also posted in Article 7, Section 7.4, Section 7.4(e) | Comments closed

S 07.5

Comments are closed.

Meetings to Discuss Library Uses.

Also posted in Article 7, Section 7.5 | Comments closed

S 07.5.1

Comments are closed.

(a) Operational Matters. The Registry, Google and the Fully Participating Libraries will meet from time to time as mutually agreed to discuss operational matters regarding the applicable Library-Registry (Fully Participating) Agreements, and the provisions of this Amended Settlement Agreement that are applicable to Fully Participating Libraries, including the communication of requests from Fully Participating Libraries to Rightsholders regarding uses of LDCs, communication of information to Fully Participating Libraries required for them to implement this Amended Settlement Agreement and the applicable Library-Registry (Fully Participating) Agreements (e.g., the Commercial Availability status), and how the Fully Participating Libraries are using the LDC for personal scholarly and classroom purposes, as authorized by Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use).

Also posted in Article 7, Section 7.5, Section 7.5(a) | Comments closed

S 07.5.2

Comments are closed.

(b) Establishing Standards. Within six (6) months after the Effective Date, the Registry and the Fully Participating Libraries, acting through the Designated Representative, will establish reasonable uniform standards for the Fully Participating Libraries’ maintenance of records, submissions to the auditor and reports to and notifications of the Registry of uses (i) authorized pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research), (ii) authorized pursuant to Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (iii) made pursuant to the proviso in Section 7.2(c)(ii), and for the auditing of such uses. Such standards will provide that the maintenance of records, the submissions to the auditor and reports to and notifications of the Registry include, at a minimum, the following information: (1) the name of the Fully Participating Library; (2) with respect to Section 7.17.2(b)(vi) (Use for Non-Consumptive Research), the same information that Host Sites are obligated to maintain and report to the auditor pursuant to Section 7.2(d) (Research Corpus); and (3) with respect to uses made pursuant to Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) and the proviso in Section 7.2(c)(ii), for each Book used by the Fully Participating Library, the title and author of the Book, a description of the type of use made of the Book, and the amount of pages of the Book used. Such standards, and any template used by the Fully Participating Libraries to maintain, submit to the auditor and report to and notify the Registry of such information, will be attached to each Library-Registry (Fully Participating) Agreement. Without limiting the foregoing, neither the Registry nor the Fully Participating Libraries, acting through the Designated Representative, shall unreasonably delay discussions on, or unreasonably withhold agreement to, such standards; provided, however, that if the Designated Representative unreasonably fails to discuss or agree to such standards, the Registry may establish such standards for the Fully Participating Libraries that are consistent with this Section 7.5(b) (Establishing Standards); provided, however, that the Fully Participating Libraries, acting through the Designated Representative, may, in lieu of complying with such standards established by the Registry, invoke an arbitration pursuant to Article IX (Dispute Resolution) in which the Arbitrator would establish, on a de novo basis, reasonable standards that are consistent with this Section 7.5(b) (Establishing Standards); pending the Arbitrator’s Decision, the Fully Participating Libraries will provide at least the minimum information set forth in the second sentence of this Section 7.5(b) (Establishing Standards).

Also posted in Article 7, Section 7.5, Section 7.5(b) | Comments closed

S 07.6

Comments are closed.

When Fully Participating Libraries, Cooperating Libraries and Public Domain Libraries are Bound. Notwithstanding anything to the contrary in this Amended Settlement Agreement, no Fully Participating Library, Cooperating Library or Public Domain Library is bound by any provision of this Amended Settlement Agreement; rather, each Fully Participating Library’s, Cooperating Library’s and Public Domain Library’s rights and obligations are as set forth in the applicable Library-Registry Agreement and no library has any rights or obligations as a third-party beneficiary under this Amended Settlement Agreement unless and until it enters into a Library-Registry Agreement and becomes a Fully Participating Library or a Cooperating Library.

Also posted in Article 7, Section 7.6 | Comments closed

S 08

Comments are closed.

ARTICLE 8 — SECURITY AND BREACH

Also posted in Article 8 | Comments closed

S 08.1

Comments are closed.

Obligations of Google, the Fully Participating Libraries and the Host Sites. Google, each Fully Participating Library and each Host Site shall be responsible for the security of Digital Copies of Books and any LDC (and, in the case of a Host Site, the Research Corpus) in accordance with this Article VIII (Security and Breach) while any such Digital Copies and any LDC (and, in the case of a Host Site, the Research Corpus) are in the possession, custody or control of such entity.

Also posted in Article 8, Section 8.1 | Comments closed

S 08.2

Comments are closed.

Security Standard, Security Implementation Plan and Security Audits.

Also posted in Article 8, Section 8.2 | Comments closed

S 08.2.1

Comments are closed.

(a) Security Implementation Plan.

Also posted in Article 8, Section 8.2, Section 8.2(a) | Comments closed

S 08.2.1.1

Comments are closed.

(i) Compliance. At all times, Google, each Fully Participating Library and each Host Site shall comply with its own, then-in-effect Security Implementation Plan.

Also posted in Article 8, Section 8.2, Section 8.2(a), Section 8.2(a)(i) | Comments closed

S 08.2.1.2

Comments are closed.

(ii) Initial Security Implementation Plan. Google, each Fully Participating Library and each Host Site shall formulate an initial Security Implementation Plan that meets the requirements of the Security Standard and shall implement such initial Security Implementation Plan promptly on or before the Effective Date. After the Effective Date, until it submits to the Registry and implements an initial Security Implementation Plan (a) Google shall not make any Display Uses, other than Snippet Display of a Display Book, except as authorized by the Rightsholder or the Registry, (b) a Fully Participating Library shall not make any uses of its LDC or receive an LDC from Google, and (c) Google shall not provide a Host Site with a Research Corpus.

Also posted in Article 8, Section 8.2, Section 8.2(a), Section 8.2(a)(ii) | Comments closed

S 08.2.1.3

Comments are closed.

(iii) Revised Security Implementation Plan. Google, each Fully Participating Library and each Host Site may revise its Security Implementation Plan from time to time and, if it does so, shall implement such revised Security Implementation Plan.

Also posted in Article 8, Section 8.2, Section 8.2(a), Section 8.2(a)(iii) | Comments closed

S 08.2.1.4

Comments are closed.

(iv) Approval of Security Implementation Plan. Google, each Fully Participating Library and each Host Site shall submit its initial and any revised Security Implementation Plan to the Registry. The Registry shall review such Security Implementation Plan. Within sixty (60) days after such submission, the Registry will (1) approve such Security Implementation Plan, (2) notify Google, the Fully Participating Library or the Host Site, as applicable, that the Registry reasonably believes that any such Security Implementation Plan does not meet the requirements of the Security Standard, citing specific reasons for such belief, or (3) notify Google, the Fully Participating Library or the Host Site, as applicable, that the Registry requires additional time for such review for good cause, the reason therefor, and the date by which the Registry will respond, which additional time shall, in any event, not exceed sixty (60) additional days; provided, however, that if the Registry does not provide such notice, the Security Implementation Plan shall be deemed to be approved. Google, the Fully Participating Library or the Host Site, as applicable, if it determines to implement a new or revised security plan, shall respond to any notice given under clause (2) above within sixty (60) days, either by amending its Security Implementation Plan or by explaining in writing how its Security Implementation Plan meets the requirements of the Security Standard. Any disputes related thereto shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 8, Section 8.2, Section 8.2(a), Section 8.2(a)(iv) | Comments closed

S 08.2.2

Comments are closed.

(b) Changes to Security Standard. Every two (2) years after the Effective Date during the term of this Amended Settlement Agreement, upon the Registry’s written request, Google, the Registry and up to a total of four (4) representatives on behalf of the Fully Participating Libraries (which four (4) representatives may include a representative of the Host Sites, at the option of the Fully Participating Libraries acting through the Designated Representative, and shall be selected in the manner set forth in Attachment 1 (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules) to Exhibit C of the Library-Registry (Fully Participating) Agreement and are defined therein as the “Security Representatives”) will review and, if necessary, revise the Security Standard to take account of technological developments, including new threats to security, and will agree on a schedule for implementation of any changes in the Security Standard. This procedure is not intended to alter the relative obligations of Google, the Registry, the Fully Participating Libraries and the Host Sites under this Amended Settlement Agreement or analogous provisions incorporated into the Library-Registry (Fully Participating) Agreement or Host Site-Registry Agreement, as applicable, but to allow for changes in technology. To the extent possible, any such revisions to the Security Standard will not require drastic changes, substantial unreasonable additional costs, or new technology. If they are unable to agree upon changes, Google, the Registry and the Security Representatives shall resolve the dispute pursuant to Article IX (Dispute Resolution). The Fully Participating Libraries may change the Security Representatives for any reason, in the manner set forth in Attachment 1 to Exhibit C of the Library-Registry (Fully Participating) Agreement (Selection of Designated Representative and Security Representatives and Establishment of Governance Rules). Notwithstanding the foregoing, if the Fully Participating Libraries fail to designate any representatives by the two (2)-year anniversary of the Effective Date, thereafter, if, and for so long as, the Fully Participating Libraries have failed to select Security Representatives, Google and the Registry may agree to revisions to the Security Standard or, if they are unable to agree, then Google and the Registry shall resolve the dispute pursuant to Article IX (Dispute Resolution).

Also posted in Article 8, Section 8.2, Section 8.2(b) | Comments closed

S 08.2.3

Comments are closed.

(c) Audits.

Also posted in Article 8, Section 8.2, Section 8.2(c) | Comments closed

S 08.2.3.1

Comments are closed.

(i) Audited Parties. Audited Parties. Google, each Fully Participating Library and each Host Site (each, an “Audited Party”) will permit a mutually agreeable third party to conduct annual audits (or, if reasonably necessary, then semi-annual audits) of its security and usage to verify compliance with the Audited Party’s then-in-effect Security Implementation Plan. The auditor will be subject to a reasonable nondisclosure agreement (an “NDA”) provided by the Audited Party that protects the Audited Party’s confidential information. The auditor may provide a report of the audit to the Registry that the Audited Party is permitted to review in advance of its disclosure to ensure that no trade secrets or other proprietary information is disclosed by the auditors in the report. Such audit shall be conducted on reasonable prior notice on a date and at a time that is mutually agreed with the Audited Party and shall be conducted during the Audited Party’s normal business hours.

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(i) | Comments closed

S 08.2.3.2

Comments are closed.

(ii) Share of Audit Costs. Google and the Registry will share equally the Registry’s out-of-pocket costs of conducting audits of the Audited Parties, subject to the following limits:

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(ii) | Comments closed

S 08.2.3.2.1

Comments are closed.

(1) If there are a total of twenty-five (25) or fewer Host Sites and Fully Participating Library locations at which LDCs are located, Google’s share will not exceed two hundred thousand United States dollars (U.S. $200,000) for such costs incurred during a calendar year;

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(ii), Section 8.2(c)(ii)(1) | Comments closed

S 08.2.3.2.2

Comments are closed.

(2) For every additional ten (10) locations that are Host Sites and at which LDCs are located, Google’s share shall increase by one hundred thousand United States dollars (U.S. $100,000) for such costs incurred during a calendar year. Google shall be obligated to pay such one hundred thousand United States dollars (U.S. $100,000) toward such incurred costs when the first Fully Participating Library or Host Site over the previous group of ten (10) Fully Participating Libraries and Host Sites signs a Library-Registry (Fully Participating) Agreement or Host Site-Registry Agreement (i.e., the 26th, 36th, 46th, etc. Fully Participating Library or Host Site).

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(ii), Section 8.2(c)(ii)(2) | Comments closed

S 08.2.3.3

Comments are closed.

(iii) Adjustment to Audit Costs. The limits set forth in Section8.2(c)(ii) (Share of Audit Costs) shall be adjusted as of January 1 of each year to that amount which is equal to the product obtained by multiplying (1) the amount specified, by (2) a fraction, the numerator of which is the Consumer Price Index published for the immediately preceding year and the denominator of which is the Consumer Price Index published for 2008. The term “Consumer Price Index” means the “Consumer Price Index, for All Urban Consumers, Subgroup “All Items” (Base Year 1982-84=100),” which is, as of the Amended Settlement Agreement Date, published by the United States Department of Labor, Bureau of Labor Statistics. If, however, the Consumer Price Index is changed so that the base year is altered from that used as of the Amended Settlement Agreement Date, then the Consumer Price Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics, to obtain the same results that would have been obtained had the base year not been changed. If no conversion factor is available or if the Consumer Price Index is otherwise changed, revised or discontinued for any reason, there shall be substituted in lieu thereof and the term “Consumer Price Index” as used in this Amended Settlement Agreement shall thereafter refer to the most nearly comparable official price index of the United States Government to obtain substantially the same result as would have been obtained had the original Consumer Price Index not been changed, revised or discontinued, which alternative index shall be selected by Google and shall be subject to the Registry’s reasonable approval.

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(iii) | Comments closed

S 08.2.3.4

Comments are closed.

(iv) No Carry Forward. If Google’s share of the Registry’s out-of pocket costs incurred in conducting audits for any calendar year does not exceed the limits set forth in Section 8.2(c)(ii) (Share of Audit Costs), then any difference between Google’s actual contribution toward such costs and such limits may not be carried forward to future years.

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(iv) | Comments closed

S 08.2.3.5

Comments are closed.

(v) Use of LDC for Non-Consumptive Research. If the use by one or more Fully Participating Libraries, other than any Fully Participating Libraries that are Host Sites, Hosting Fully Participating Libraries or Requesting Fully Participating Libraries, of its or their LDCs for Non-Consumptive Research pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research) results in any additional out-of-pocket costs to the Registry of conducting audits of such Fully Participating Libraries, beyond the costs of conducting audits at Fully Participating Libraries that do not make such use of their LDCs, then the Fully Participating Libraries that use their LDCs for such purposes shall bear all such additional costs to the extent reasonable.

Also posted in Article 8, Section 8.2, Section 8.2(c), Section 8.2(c)(v) | Comments closed

S 08.3

Comments are closed.

Breaches – General Principles.

Also posted in Article 8, Section 8.3 | Comments closed

S 08.3.1

Comments are closed.

(a) Notification of Registry by Google, Fully Participating Library or Host Site; Cure. If Google, a Fully Participating Library or a Host Site becomes aware of (i) a breach of its then-in-effect Security Implementation Plan, other than an Inconsequential Breach, (ii) in the case of Google, a breach by it of any other provision of this Amended Settlement Agreement resulting in Unauthorized Access, (iii) in the case of a Fully Participating Library or a Host Site, any Prohibited Access, or (iv) any Unauthorized Access by Google, any Prohibited Access by a Fully Participating Library or a Host Site or any Third-Party Unauthorized Access (even if Google, the Fully Participating Library or Host Site, as applicable, has complied with this Amended Settlement Agreement and its then-in-effect Security Implementation Plan), it shall (1) promptly notify the Registry of any such breach, Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access; (2) promptly cure any such breach or block such Unauthorized Access (which may include, in the case of Google, temporary suspension of Display Uses of a Book), Prohibited Access or Third-Party Unauthorized Access, as applicable; (3) if such breach cannot be cured or such Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access blocked promptly, report to the Registry on an on-going basis the status of its efforts to do so; (4) promptly notify and confer with the Registry on ways to prevent any such breach or such Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, as applicable, from reoccurring; and (5) promptly negotiate with the Registry (in the case of a breach of its then-in-effect Security Implementation Plan) and with the Registry and/or affected Rightsholder(s) (in the case of an Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access), an appropriate monetary remedy, if any, in accordance with Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site), or 8.6 (Remedies for Security Violations by Third Parties), as applicable. Each Audited Party shall report to the auditor in connection with the audit described in Section 8.2(c) (Audits) all breaches of its then-in-effect Security Implementation Plan that pose a reasonable risk of compromising the security of Digital Copies or of proximately causing any other breaches that are not Inconsequential Breaches.

Also posted in Article 8, Section 8.3, Section 8.3(a) | Comments closed

S 08.3.2

Comments are closed.

(b) Notification of Registry by Rightsholders. All Rightsholders who wish to make a claim against Google, a Fully Participating Library, and/or a Host Site shall first notify the Registry pursuant to this Amended Settlement Agreement, the Library-Registry (Fully Participating) Agreement and the Host Site-Registry Agreement, respectively.

Also posted in Article 8, Section 8.3, Section 8.3(b) | Comments closed

S 08.3.3

Comments are closed.

(c) Notification of Google, Fully Participating Library or Host Site by Registry. The Registry promptly shall provide notice to Google, the Fully Participating Library and/or the Host Site, as applicable, of the claimed breach.

Also posted in Article 8, Section 8.3, Section 8.3(c) | Comments closed

S 08.3.4

Comments are closed.

(d) Consolidation of Claims. If the Registry or a Rightsholder has a claim against Google for breach of any provision of this Article VIII (Security and Breach) or against a Fully Participating Library or a Host Site for breach of the analogous provisions incorporated in the Library-Registry (Fully Participating) Agreement or the Host Site-Registry Agreement, respectively, then, at the option of the allegedly breaching party or the Registry, such claims will be consolidated as set forth below:

Also posted in Article 8, Section 8.3, Section 8.3(d) | Comments closed

S 08.3.4.1

Comments are closed.

(i) Rightsholder Notice. Upon the Registry’s receipt of a notice sent pursuant to Section 8.3(b) (Notification of Registry by Rightsholders), or if the Registry wishes to, on its own, make a claim against Google, a Fully Participating Library, and/or a Host Site, the Registry shall notify all affected Rightsholders whose Books may be subject to Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access of a claim arising out of a breach of a then-in-effect Security Implementation Plan and, in its discretion, of any other claim of Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access affecting more than one Rightsholder; provided, however, that, with respect to a claim against Google or a Fully Participating Library, for so long as the contents of such notification would reasonably be expected to result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, then the Registry, in its discretion, may, or at Google’s or, in the case of a Fully Participating Library, the Fully Participating Library’s request, or in the case of a Host Site, the Host Site’s request, shall, delay in providing such notice; and, provided further, that Google or the Fully Participating Library, as applicable, will promptly notify the Registry when notification under this Section 8.3(d)(i) (Rightsholder Notice) would no longer reasonably be expected to result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access.

Also posted in Article 8, Section 8.3, Section 8.3(d), Section 8.3(d)(i) | Comments closed

S 08.3.4.2

Comments are closed.

(ii) Notification of Same Claims. Rightsholders will be required to notify the Registry of all claims arising out of the same claimed breach within ninety (90) days of the date of notice to Rightsholders under Section 8.3(d)(i) (Rightsholder Notice), and the Registry shall have ninety (90) days after the end of such ninety (90)-day period to investigate and pursue the claiming Rightsholders’ claims for breach, provided that the Registry cannot, absent the approval of an affected Rightsholder, settle such a claim, except that affirmative approval from every affected Rightsholder is not necessary so long as those Rightsholders are given prior notice and an opportunity to be heard if they wish.

Also posted in Article 8, Section 8.3, Section 8.3(d), Section 8.3(d)(ii) | Comments closed

S 08.3.5

Comments are closed.

(e) Claim Resolution. If the Registry does not pursue such claims for breach within the periods specified in Section 8.3(d)(ii) (Notification of Same Claims), a claiming Rightsholder will then have an additional sixty (60) days after the end of such periods to submit the claims for resolution pursuant to Article IX (Dispute Resolution). If the Registry does pursue such claims within such periods, the Registry shall inform Google, the Fully Participating Library or the Host Site, as applicable, of the responses of Rightsholders and, based on those responses, Google, the Fully Participating Library, or the Host Site, as applicable, shall have the opportunity to negotiate a settlement with the Registry. Following agreement on a settlement proposal, the Registry will notify the affected Rightsholders of the potential settlement of such claims, and each affected Rightsholder shall have the opportunity to accept or reject the Registry’s settlement proposal for such Rightsholder’s claim. Any Rightsholder that rejects the Registry’s settlement proposal for his, her or its claim shall have one hundred twenty (120) days after the date of such notice of potential settlement to submit such claim for resolution pursuant to Article IX (Dispute Resolution).

Also posted in Article 8, Section 8.3, Section 8.3(e) | Comments closed

S 08.3.6

Comments are closed.

(f) Sole Means. The procedures set forth in this Section 8.3 (Breaches – General Principles) and in Article IX (Dispute Resolution) shall be the sole means for a Rightsholder to bring a claim arising out of this Article VIII (Security and Breach).

Also posted in Article 8, Section 8.3, Section 8.3(f) | Comments closed

S 08.3.7

Comments are closed.

(g) Remedies. The monetary damages for any breach of any Security Implementation Plan, or for any breach of this Amended Settlement Agreement resulting in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access would be difficult to approximate and, therefore, the amounts set forth in Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site) and 8.6 (Remedies for Security Violations by Third Parties), as such amounts may be modified by Section 8.7 (Adjustments to Liability Ranges and Caps), are deemed to be reasonable approximations of such damages and shall not be deemed to be penalties.Subject to the last sentence of this Section 8.3(g) (Remedies), such monetary remedies (whether or not any damages are awarded) shall be the sole remedy and Google’s, each Fully Participating Library’s and each Host Site’s sole obligation for any such breaches (in addition to injunctive relief to prevent a continuing breach which may be awarded by the Arbitrator pursuant to Article IX (Dispute Resolution)), unless any Fully Participating Library or Host Site elects otherwise pursuant to Section 8.4(d) (Election of Remedies). With respect to all of the monetary remedies set forth in such Section, the monetary remedies applicable to Host Sites are the same as the monetary remedies applicable to the Fully Participating Libraries for Host Sites that are, or are similar to, Fully Participating Libraries, and the same as the monetary remedies applicable to Google for any other Host Sites (e.g., for any commercial enterprises). A Host Site’s Host Site-Registry Agreement shall specify the monetary remedies applicable to such Host Site. If a Fully Participating Library uses its LDC for Non-Consumptive Research pursuant to Section 7.2(b)(vi) (Use for Non-Consumptive Research) and either (i) breaches its obligation to notify the Registry of such use pursuant to such Section or (ii) an Arbitrator determines, pursuant to Article IX (Dispute Resolution), that such Fully Participating Library has materially breached its obligation, as set forth in such Section, to comply with the provisions of Section 7.2(d) (Research Corpus) as if such Fully Participating Library were a Host Site and as if the Fully Participating Library’s LDC were the Research Corpus, then the Arbitrator may, as a further remedy, if appropriate under the circumstances, determine that such Fully Participating Library may not use its LDC for Non-Consumptive Research; provided, however, that if, to the Registry’s or the Arbitrator’s reasonable satisfaction, the Fully Participating Library demonstrates subsequently that it is able and intends to so comply, then such Fully Participating Library may use its LDC for Non-Consumptive Research.

Also posted in Article 8, Section 8.3(g) | Comments closed

S 08.4

Comments are closed.

Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access. Monetary remedies for Google’s, a Fully Participating Library’s or a Host Site’s breach of its Security Implementation Plan that does not result in Unauthorized Access, Prohibited Access or Third-Party Unauthorized Access, are as follows:

Also posted in Article 8, Section 8.4 | Comments closed

S 08.4.1

Comments are closed.

(a) Inconsequential Breach. If Google, a Fully Participating Library and/or a Host Site has breached its then-in-effect Security Implementation Plan, but such breach constitutes an Inconsequential Breach, then Google, such Fully Participating Library and/or such Host Site, as applicable, will not be responsible for any damages to the Rightsholder or Registry.

Also posted in Article 8, Section 8.4, Section 8.4(a) | Comments closed

S 08.4.2

Comments are closed.

(b) Single or Non-Willful/Intentional Breach of Security Implementation Plan. If Google, a Fully Participating Library and/or a Host Site has breached its then-in-effect Security Implementation Plan, and such breach is not an Inconsequential Breach and the breaching conduct is not willful or intentional misconduct, then the Registry and the breaching party will negotiate or arbitrate pursuant to Article IX (Dispute Resolution) an appropriate monetary remedy, if any, that will be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), within the range of zero to twenty-five thousand United States dollars (U.S. $0 -$25,000) in the case of Google and zero to twelve thousand five hundred United States dollars (U.S. $0 –$12,500) in the case of a Fully Participating Library, which amounts may depend, among other things, on the type of breach and whether the breaching conduct was reckless conduct. The breaching party shall pay all such amounts to the Registry. There will be no monetary remedy for the foregoing breaches described in this Section 8.4(b) (Single or Non-Willful/Intentional Breach of Security Implementation Plan), however, if the breaching party (i) promptly and fully reports the breach to the Registry upon discovery and (ii) cures the breach as expeditiously as practical.

Also posted in Article 8, Section 8.4, Section 8.4(b) | Comments closed

S 08.4.3

Comments are closed.

(c) Repeated or Willful/Intentional Breaches of Security Implementation Plan. If Google, a Fully Participating Library or a Host Site has breached its then-in-effect Security Implementation Plan, and such breach is not an Inconsequential Breach and either is the second (or more) of the same breach (i.e., the second or more breach with the same root cause) within a six (6)-month period or the breaching conduct is willful or intentional misconduct, then the Registry and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution) an appropriate monetary remedy, if any, that will be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), within the range of zero to fifty thousand United States Dollars (U.S. $0 -$50,000) in the case of Google and zero to twenty-five thousand United States dollars (U.S. $0 –$25,000) in the case of a Fully Participating Library, which amounts may depend, among other things, on the number and type of breach and whether the breaching conduct was willful or intentional misconduct. The breaching party shall pay all such amounts to the Registry.

Also posted in Article 8, Section 8.4, Section 8.4(c) | Comments closed

S 08.4.4

Comments are closed.

(d) Election of Remedies. Each Fully Participating Library, in its Library-Registry (Fully Participating) Agreement, and each Host Site, in its Host Site-Registry Agreement, must, for all breaches that are subject to this Section 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result in Unauthorized Access or Prohibited Access), make an election to either (i) agree to the monetary remedies specified in Section 8.4(b) (Single or Non-Willful/Intentional Breach of Security Implementation Plan) or 8.4(c) (Repeated or Willful/Intentional Breaches of Security Implementation Plan), or (ii) subject itself to a judicial action or an arbitration pursuant to Article IX (Dispute Resolution) at the Registry’s election) allowing the Registry to seek all available remedies in equity and at law.

Also posted in Article 8, Section 8.4, Section 8.4(d) | Comments closed

S 08.5

Comments are closed.

Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site. Monetary remedies for breaches of this Amended Settlement Agreement by Google, a Fully Participating Library or a Host Site, or the Library-Registry (Fully Participating) Agreement or Host Site-Registry Agreement, as applicable, including breaches of its then-in-effect Security Implementation Plan that result in Unauthorized Access (in the case of Google) or Prohibited Access (in the case of a Fully Participating Library or a Host Site) are as follows; provided, however, that if such then-in-effect Security Implementation Plan was not yet approved by the Registry and such Unauthorized Access or Prohibited Access is a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the provisions of Section 8.5(b) (Reckless, Willful or Intentional Misconduct) shall apply and not the provisions of Section 8.5(a) (Inadvertent and Negligent Conduct), unless Google, the Fully Participating Library, or the Host Site, as applicable, demonstrates to the Arbitrator that its implementing of such then-in-effect Security Implementation Plan, including the element in issue, was not reckless.

Also posted in Article 8, Section 8.5 | Comments closed

S 08.5.1

Comments are closed.

(a) Inadvertent and Negligent Conduct. If Google, a Fully Participating Library or a Host Site has inadvertently or negligently breached this Settlement Agreement resulting in Unauthorized Access (in the case of Google) or breached this Amended Settlement Agreement, the EDIT-> [Library-Registry (Participating) Agreement] or the Host Site-Registry Agreement resulting in Prohibited Access (in the case of a Fully Participating Library or a Host Site), then the Registry and/or the affected Rightsholders, in accordance with Section 8.3(d) (Consolidation of Claims), and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, that will be limited to actual damages. Notwithstanding the foregoing, neither Google, nor a Fully Participating Library nor any Host Site will be responsible for any damages from such Unauthorized Access or Prohibited Access, as applicable, if (i) Google has complied with the process for determining whether a book is in the public domain under the Copyright Act in the United States under Section 3.2(d)(v) (Safe Harbor Public Domain Determination) and, despite such compliance, has mistakenly identified one or more Books as being in the public domain under the Copyright Act in the United States, resulting in such Unauthorized Access or Prohibited Access, as applicable, (ii) Google, a Fully Participating Library or a Host Site has relied on incorrect or incomplete information provided by the Registry and that incorrect or incomplete information caused the Unauthorized Access or Prohibited Access, as applicable, or (iii) the Unauthorized Access or Prohibited Access occurred as a result of reasons beyond the control of Google, the Fully Participating Library or the Host Site, as applicable. In any of the cases set forth in clauses (i)-(iii) above, each breaching party shall cure the breach as expeditiously as practical. Aggregate damages recoverable by Rightsholders for all claims under this Section 8.5(a) (Inadvertent and Negligent Conduct) from a single incident of such breach (i.e., all breaches resulting from the same root cause) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, ten million United States dollars (U.S. $10 million) and, in the case of a Fully Participating Library, three hundred thousand United States dollars (U.S. $300,000).

Also posted in Article 8, Section 8.5, Section 8.5(a) | Comments closed

S 08.5.2

Comments are closed.

(b) Reckless, Willful or Intentional Misconduct. If Google, a Fully Participating Library or a Host Site has breached this Amended Settlement Agreement resulting in Unauthorized Access (in the case of Google) or Prohibited Access (in the case of a Fully Participating Library or a Host Site), and the breaching conduct was reckless or was willful or intentional misconduct, then the Registry and/or the affected Rightsholders, in accordance with Section 8.3(d) (Consolidation of Claims), and the breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution) an appropriate monetary remedy, if any, which will attempt to approximate actual damages for such breach. Such damages may be in the range beginning with zero and up to the statutory damages available to the affected Rightsholders under Section 504 of the Copyright Act. Aggregate damages recoverable by Rightsholders for all claims resulting from a single incident of such breach (i.e., all breaches resulting from the same root cause) described in this Section 8.5(b) (Reckless, Willful or Intentional Misconduct) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, forty million United States dollars (U.S. $40 million) if the breaching conduct was reckless, and fifty million United States dollars (U.S. $50 million) if the breaching conduct was willful or intentional misconduct, and, in the case of a Fully Participating Library, five million United States dollars (U.S. $5 million) if the breaching conduct was reckless and seven and one-half million United States dollars (U.S. $7.5 million) if the breaching conduct was willful or intentional misconduct.

Also posted in Article 8, Section 8.5, Section 8.5(b) | Comments closed

S 08.6

Comments are closed.

Remedies for Security Violations by Third Parties. Remedies for security violations by a third party are as follows:

Also posted in Article 8, Section 8.6 | Comments closed

S 08.6.1

Comments are closed.

(a) Compliance with Security Implementation Plan. If, due to a security failure, a third party violates Google’s, a Fully Participating Library’s or a Host Site’s security and obtains Third-Party Unauthorized Access, and such Third-Party Unauthorized Access does not result from the failure of Google, such Fully Participating Library, or such Host Site, as applicable, to comply with its then-in-effect Security Implementation Plan, then neither Google, nor the Fully Participating Library, nor the Host Site, as applicable, will be responsible for any damages to a Rightsholder or the Registry; provided, however, that if such then-in-effect Security Implementation Plan was not yet approved by the Registry and such access is a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the provisions of Section 8.6(b) (Breach of Security Implementation Plan) shall apply and not the provisions of this Section 8.6(a) (Compliance with Security Implementation Plan); provided, further, that a Fully Participating Library is not considered to be a third party when accessing its own LDC, a Host Site is not considered to be a third party when accessing the Research Corpus and a Hosting Fully Participating Library is not considered to be a third party when hosting an LDC of a Requesting Fully Participating Library. Google, the Fully Participating Library and the Host Site will reasonably assist the Registry in seeking remedies against the third party; provided, further, that, in no event shall Google, the Fully Participating Library or the Host Site be required to disclose confidential or personally identifiable information except as compelled by law or valid legal process. Conduct by Google, a Fully Participating Library or a Host Site in compliance with a Security Implementation Plan approved by the Registry will not in any event be deemed to be or constitute negligence, recklessness or intentional misconduct.

Also posted in Article 8, Section 8.6, Section 8.6(a) | Comments closed

S 08.6.2

Comments are closed.

(b) Breach of Security Implementation Plan. If Google, a Fully Participating Library or a Host Site has breached its then-in-effect Security Implementation Plan and a third party violates Google’s, such Fully Participating Library’s or such Host Site’s security and obtains Third-Party Unauthorized Access as a proximate result of such breach, or if Google, a Fully Participating Library or a Host Site had complied with its then-in-effect Security Implementation Plan but its then-in-effect Security Implementation Plan was not yet approved by the Registry and the access was a proximate result of an element of such then-in-effect Security Implementation Plan that is determined not to meet the requirements of the Security Standard, then the Registry and/or affected Rightsholders, in accordance with Section 8.3(d) (Consolidation of Claims), and each breaching party will negotiate or arbitrate (pursuant to Article IX (Dispute Resolution)) an appropriate monetary remedy, if any, which will attempt to approximate actual damages for such breach of the Security Implementation Plan, provided that a Fully Participating Library is not considered to be a third party when accessing its own LDC, a Host Site is not considered to be a third party when accessing the Research Corpus and a Hosting Fully Participating Library is not considered to be a third party when hosting an LDC of a Requesting Fully Participating Library. Such damages may be in the range beginning with zero and up to the statutory damages available to the affected Rightsholders under Section 504 of the Copyright Act. Aggregate damages recoverable by Rightsholders for all claims resulting from a single incident of such breach (i.e., all breaches resulting from the same root cause) described in this Section 8.6(b) (Breach of Security Implementation Plan) shall be, subject to Section 8.7 (Adjustments to Liability Ranges and Caps), in the case of Google, fifteen million United States dollars (U.S. $15 million) if the breaching conduct was negligent, twenty million United States dollars (U.S. $20 million) if the breaching conduct was reckless and twenty-five million United States dollars (U.S. $25 million) if the breaching conduct was willful or intentional misconduct, and, in the case of a Fully Participating Library, two million United States dollars (U.S. $2 million) if the breaching conduct was negligent, three million United States dollars (U.S. $3 million) if the breaching conduct was reckless and five million United States dollars (U.S. $5 million) if the breaching conduct was intentional or willful misconduct.

Also posted in Article 8, Section 8.6, Section 8.6(b) | Comments closed

S 08.6.3

Comments are closed.

(c) No Multiple Damages. If the Registry and/or affected Rightsholders recover damages from a third party who has obtained Third-Party Unauthorized Access to one or more Books or Inserts, then any amounts recoverable by the Registry and/or such Rightsholders against Google, a Fully Participating Library or a Host Site under this Section 8.6 (Remedies for Security Violations by Third Parties) for any claim arising out of such Unauthorized Access shall be reduced by the amount of such damages.

Also posted in Article 8, Section 8.6, Section 8.6(c) | Comments closed

S 08.7

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Adjustments to Liability Ranges and Caps. The liability ranges and caps set forth in Sections 8.4 (Remedies for Breaches of the Security Implementation Plan that Do Not Result In Unauthorized Access or Prohibited Access), 8.5 (Remedies for Breaches Resulting in Unauthorized Access by Google or Prohibited Access by a Fully Participating Library or a Host Site) and 8.6 (Remedies for Security Violations by Third Parties) shall be adjusted on the tenth (10th) anniversary of the Effective Date and every tenth (10th) anniversary thereafter during the term of this Amended Settlement Agreement to that amount which is equal to the product obtained by multiplying (a) the amount specified in each such section, by (b) a fraction, the numerator of which is the Consumer Price Index published for the year immediately preceding the year in which the calculation is made and the denominator of which is the Consumer Price Index published for 2008.

Also posted in Article 8, Section 8.7 | Comments closed

S 09

Comments are closed.

Article 9 – Dispute Resolution

Also posted in Article 9 | Comments closed

S 09.01

Comments are closed.

Arbitration of Disputes and Exceptions

Also posted in Article 9, Section 9.1 | Comments closed

S 09.01.1

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(a) General Rules. Unless otherwise set forth in this Section 9.1 (Arbitration of Disputes and Exceptions), all disputes between and among Google, Rightsholders, Claimants, the Registry and Participating Libraries arising out of this Amended Settlement Agreement, and disputes pursuant to Section 13.2(d) (Claims) for Content that is Neither a Book nor an Insert), shall be subject to this Article IX (Dispute Resolution), including disputes involving Claimants and Rightsholders of Inserts; provided that disputes relating to Books between member(s) of the Author Sub-Class, on the one hand, and member(s) of the Publisher Sub-Class, on the other hand, shall be subject to this Article IX (Dispute Resolution) only to theextent provided, in the Author-Publisher Procedures, and disputes between and among members of the Publisher Sub-Class relating to Books shall not be subject to this Article IX (Dispute Resolution) unless otherwise agreed between such members.; and, provided further, that with respect to any dispute between or among Rightsholders and Claimants, the parties to such dispute may elect to resolve such dispute in court or by such other dispute resolution procedure as they may agree.

Also posted in Article 9, Section 9.1 | Comments closed

S 09.01.2

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(b) Exceptions. This Article IX (Dispute Resolution) shall not apply to disputes regarding:

Also posted in Article 9, Section 9.1, Section 9.1(b) | Comments closed

S 09.01.2.1

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(i) Breaches of this Amended Settlement Agreement that occur prior to the Effective Date;

Also posted in Article 9, Section 9.1, Section 9.1(b)(i) | Comments closed

S 09.01.2.2

Comments are closed.

(ii) Google’s obligation to provide Digital Copies to an Additional Contemplated Rightsholder Services Provider pursuant to Section 3.7(c) (Additional Contemplated Rightsholder Services Provider);

Also posted in Article 9, Section 9.1, Section 9.1(b)(ii) | Comments closed

S 09.01.2.3

Comments are closed.

(iii) Section 4.7 (NewAdditional/ Revenue Models);

Also posted in Article 9, Section 9.1, Section 9.1(b)(iii) | Comments closed

S 09.01.2.4

Comments are closed.

(iv) Section 7.2(a)(iv) (LimitationLimitations);

Also posted in Article 9, Section 9.1, Section 9.1(b) | Comments closed

S 09.01.2.5

Comments are closed.

(v) Google’s obligation not to make certain assertions in any proceeding outside the United States pursuant to the last sentence of Section 10.2(b) (Limitations on Releases); or

Also posted in Article 9, Section 9.1, Section 9.1(b), Section 9.1(b)(v) | Comments closed

S 09.01.2.6

Comments are closed.

(vi) Section 17.19 (Destruction).

Also posted in Article 9, Section 9.1, Section 9.1(b), Section 9.1(b)(vi) | Comments closed

S 09.02

Comments are closed.

Executive Escalation. With respect to all disputes subject to this Article IX (Dispute Resolution), Google, any Plaintiff, any Rightsholder, any Claimant, the Registry, any Fully Participating Library, any Cooperating Library, and/or any Host Site, as applicable, shall immediately submit such disputes to a contact provided by each party to the dispute (“Contact”) for resolution. For thirty (30) days after the submission, or such other period of time as the parties to the dispute may mutually agree (the “Resolution Period”), the Contacts shall meet in person or by telephone and attempt to resolve such dispute. The Contacts must be personnel who have the proper authorizations, from each of their respective parties, to resolve the dispute in a final and binding fashion. The Contact for Google is its General Counsel, or his or her designee. The Registry will appoint a Contact. Any party other than Google and the Registry that is subject to this Article IX (Dispute Resolution) must identify a Contact at the time that a dispute involving such party is first raised or within ten (10) Business Days of receiving notice of a dispute.

Also posted in Section 9.2 | Comments closed

S 09.03

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Arbitration

Also posted in Article 9, Section 9.3 | Comments closed

S 09.03.1

Comments are closed.

(a) AAA Arbitration. With respect to all disputes subject to this Article IX (Dispute Resolution) that have not been resolved within the Resolution Period, each of the parties to the dispute shall compile a specific list of the matters relating to the dispute to which it believes the parties to the dispute have not reached agreement, in each case setting forth its respective position in as succinct a manner as reasonably possible (collectively, the “Matters in Dispute”). The parties to the dispute shall, upon expiration of the Resolution Period, agree upon and appoint one or more arbitrators from the pool of potential arbitrators selected in accordance with Section 9.3(c) (Pool of Potential Arbitrators). The selected arbitrator(s) (the “Arbitrator”) shall decide the Matters in Dispute, and only the Matters in Dispute. If the disputing parties fail to select the Arbitrator within fifteen (15) days after the expiration of the Resolution Period, either party may immediately file a petition for arbitration before the American Arbitration Association (the “AAA”). The place of arbitration shall be New York, New York unless the parties to the dispute agree otherwise or unless a Rightsholder or Claimant who is party to a dispute requests that the arbitration be held by telephone or videoconference in order to save time, travel and other costs. If the AAA ceases to operate in New York, New York, then the Court shall, upon the consent of Google and the Registry, appoint another entity to administer the dispute resolution procedures. The arbitrators shall apply New York law to the merits of any dispute or claim, without reference to rules of conflict of law.

Also posted in Article 9, Section 9.3, Section 9.3(a) | Comments closed

S 09.03.2

Comments are closed.

(b) Arbitrator. The Arbitrator shall be drawn from a special pool of arbitrators who will be familiar with the area of the dispute (e.g., the publishing industry, security, the Internet) as well as this Amended Settlement Agreement.

Also posted in Article 9, Section 9.3, Section 9.3(b) | Comments closed

S 09.03.3

Comments are closed.

(c) Pool of Potential Arbitrators. Google and the Registry will create the pool of arbitrators in conjunction with the AAA; provided, however, that, for disputes involving any Fully Participating Library, Cooperating Library or Public Domain Library, the arbitrators need not be selected from such pool. The pool will be drawn from one or more of the following:

Also posted in Article 9, Section 9.3, Section 9.3(c) | Comments closed

S 09.03.3.1

Comments are closed.

(i) Current AAA arbitrators;

Also posted in Article 9, Section 9.3, Section 9.3(c), Section 9.3(c)(i) | Comments closed

S 09.03.3.2

Comments are closed.

(ii) Individuals recommended by Google and the Plaintiffs; and

Also posted in Article 9, Section 9.3, Section 9.3(c), Section 9.3(c)(ii) | Comments closed

S 09.03.3.3

Comments are closed.

(iii) Individuals identified through a search in conjunction with (or conducted by) AAA.

Also posted in Article 9, Section 9.3, Section 9.3(c), Section 9.3(c)(iii) | Comments closed

S 09.03.4

Comments are closed.

(d) Expedited Procedures. Except for disputes listed in Section 9.3(e) (Other Disputes), all disputes subject to this Article IX (Dispute Resolution) shall be arbitrated before a single Arbitrator under the Expedited Procedures of the AAA Commercial Arbitration Rules; provided, however, that a party may petition the Arbitrator for discovery, if reasonably necessary for resolution of the dispute and the parties may mutually agree on other procedures.

Also posted in Article 9, Section 9.3(d) | Comments closed

S 09.03.5

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(e) Other Disputes. Any disputes arising under the following Sections shall be arbitrated under the AAA Commercial Arbitration Rules, unless the parties agree to the procedures set forth in Section 9.3(d) (Expedited Procedures), and the Arbitrator shall be a panel of three (3) arbitrators:

Also posted in Article 9, Section 9.3(e) | Comments closed

S 09.03.5.01

Comments are closed.

(i) Sections 3.7(a) (Obligation) and (b) (Failure to Provide Contemplated Rightsholder Services);

Also posted in Article 9, Section 9.03(e)(i), Section 9.3(e) | Comments closed

S 09.03.5.02

Comments are closed.

(ii) Section 3.8 (Effect of Other Agreements and Changes in Law);

Also posted in Article 9, Section 9.03(e)(ii), Section 9.3(e) | Comments closed

S 09.03.5.03

Comments are closed.

(iii) Section 4.1 (Institutional Subscriptions);

Also posted in Article 9, Section 9.3(e), Section 9.3(e)(iii) | Comments closed

S 09.03.5.04

Comments are closed.

(iv) Section 4.2 (Consumer Purchases);

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(iv) | Comments closed

S 09.03.5.05

Comments are closed.

(v) Section 4.5(b) (Discounting, Special Offers and Subsidies);

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(v) | Comments closed

S 09.03.5.06

Comments are closed.

(vi) Section 4.9 (Economic Terms Renegotiation);

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(vi) | Comments closed

S 09.03.5.07

Comments are closed.

(vii) Section 6.3 (Unclaimed Funds and Public Domain Funds);

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(vii) | Comments closed

S 09.03.5.08

Comments are closed.

(viii) Section 7.2 (Fully Participating Library Uses);

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(viii) | Comments closed

S 09.03.5.09

Comments are closed.

(ix) Section 8.2 (Security Standard, Security Implementation Plan and Security Audits); and

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(viii) | Comments closed

S 09.03.5.10

Comments are closed.

(x) Any breach of Article VIII (Security and Breach) related to a Security Implementation Plan or claims related to the security of Digital Copies of Books, the Research Corpus or any LDC.

Also posted in Article 9, Section 9.3, Section 9.3(e), Section 9.3(e)(x) | Comments closed

S 09.04

Comments are closed.

Notice to Rightsholders. The Registry will provide notice to Registered Rightsholders as required pursuant to Section 8.3(d) (Consolidation of Claims) and concerning the disputes identified in Sections 9.3(e)(i)-(vi) (Other Disputes).

Also posted in Article 9, Section 9.4 | Comments closed

S 09.05

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Notice to Registry; Consolidation. Notice of all disputes subject to this Article IX (Dispute Resolution) will be provided to the Registry as well as AAA. If the Registry believes that multiple disputes raise common issues, the Registry may request the parties to consolidate them; however, certain disputes are subject to mandatory consolidation pursuant to Section 7.2(f)(i) (Fully Participating Libraries), Section 7.2(f)(ii) (Cooperating Libraries) and Section 8.3(d) (Consolidation of Claims).

Also posted in Article 9, Section 9.5 | Comments closed

S 09.06

Comments are closed.

Precedential Effect. The AAA or the Registry shall maintain a database of Decisions rendered pursuant to this Article IX (Dispute Resolution) for purposes of this Amended Settlement Agreement only. The Arbitrators may rely on or be guided by such precedent, as appropriate, but stare decisis will not apply. In any dispute between Google and the Registry and/or a Rightsholder subject to this Article IX (Dispute Resolution), however, no such party to such dispute shall seek to admit into evidence, or otherwise refer to, the fact that Google has entered into or concluded any negotiation or arbitration with a Participating Library.

Also posted in Article 9, Section 9.6 | Comments closed

S 09.07

Comments are closed.

Decision. The Arbitrator shall decide the Matters in Dispute by written opinion with clear and express language (the “Decision”). The Decision shall be final, binding and non appealable, and judgment on the Decision may be entered only in the Court. Upon receipt of the Decision, the parties shall immediately effect the resolution in accordance with the Decision.

Also posted in Article 9, Section 9.7 | Comments closed

S 09.08

Comments are closed.

Confidentiality. The entire contents of all papers and records related to the arbitration, and, except as provided in Section 8.3(d) (Consolidation of Claims) and Section 9.4 (Notice to Rightsholders) or as agreed by the parties to the arbitration, the fact of the arbitration, shall be deemed to be confidential information of the parties to the arbitration; provided, however, that (a) the Registry may be permitted to disclose the existence and costs of arbitrations to which it is a party in connection with required financial disclosures; and (b) all Registered Rightsholders and parties to an arbitration will have access to all Decisions; provided, further, (i) such Rightsholders and/or parties shall have executed an agreement obligating the Rightsholders and/or parties to use the Decisions only for the prosecution or defense of a claim and not to make the Decisions public; and (ii) names, other personally identifiable information and any confidential information will be redacted from the Decisions before the Decisions are made available to such Rightsholders and/or parties.

Also posted in Article 9, Section 9.8 | Comments closed

S 09.09

Comments are closed.

Fees and Costs. Any Arbitrator’s fees and any costs payable to the Arbitrator shall be shared equally by the parties to the arbitration, unless otherwise agreed under this Amended Settlement Agreement (including the Author-Publisher Procedures). Each party to the arbitration will bear his, her or its own legal fees and expenses, unless otherwise provided under this Amended Settlement Agreement.

Also posted in Article 9, Section 9.9 | Comments closed

S 09.10

Comments are closed.

Joinder. Joinder is permissible if required for complete resolution of claim.

Also posted in Article 9, Section 9.10 | Comments closed

S 09.11

Comments are closed.

Injunctive Relief. If a party would be prejudiced or irreparably harmed by delay (e.g., the party has need for emergency or temporary injunctive relief, which could be in the form of specific performance), a party has repeatedly, willfully or intentionally not complied with its obligations under this Amended Settlement Agreement, or a party is claiming a breach of Section 15.2 (Obligations), the party claiming a breach of this Amended Settlement Agreement may apply to any court of competent jurisdiction (or, if the dispute involves a Fully Participating Library, the Court) for a temporary restraining order, preliminary injunction, other interim or conservatory relief or injunctive relief, as necessary, without breach of this Article IX (Dispute Resolution) and without any abridgment of the powers of the Arbitrator, while simultaneously following the process set forth in Section 9.2 (Executive Escalation) and, if unsuccessful, the arbitration procedure set forth in this Article IX (Dispute Resolution).

Also posted in Article 9, Section 9.11 | Comments closed

S 09.12

Comments are closed.

Continuing Jurisdiction. This Article IX (Dispute Resolution) is subject to Section 17.23 (Court’s Continuing Jurisdiction).

Also posted in Article 9, Section 9.12 | Comments closed

S 10

Comments are closed.

Article 10 – Releases

Also posted in Article 10 | Comments closed

S 10.1

Comments are closed.

Definitions.

Also posted in Article 10, Section 10.1 | Comments closed

S 10.1.01

Comments are closed.

(a) “Claim” means any claim (including any claim relating to any right, contract, obligation, debt, dues, sum of money, or attorneys’ fees), action, cause of action, proceeding, adjustment, execution, offset, judgment, suit, accounting, reckoning, bond, bill, trespass, damage, demand (whether written or oral), liability, controversy, expense, and loss whatsoever, whether arising in law or in equity, based on United States federal, state, territorial or common law, whether foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, existing now or arising in the future.

Also posted in Article 10, Section 10.1, Section 10.1(a) | Comments closed

S 10.1.02

Comments are closed.

(b) “Cooperating Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademarkinfringement, or moral rights violation) against each Cooperating Library Releasee that arises out of, with respect to Books and Inserts held by such Cooperating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Cooperating Library Releasee’s provision of Books and Inserts (or Books and Inserts in a form Digitized by such Cooperating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products and Services, (iii) such Cooperating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or permitted by the applicable Library-Registry (Cooperating) Agreement, as if the Cooperating Library had been a Cooperating Library at the time of such use, and (v) such Cooperating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Cooperating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this AmendedSettlement Agreement or such Library-Registry (Cooperating) Agreement.

Also posted in Article 10, Section 10.1, Section 10.1(b) | Comments closed

S 10.1.03

Comments are closed.

(c) “Cooperating Library Releasees” means each Cooperating Library and all of such Cooperating Library’s past, present, and future parents, predecessors,subsidiaries, affiliates, and divisions, all of its and their respective contractors, andlicensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, students, members, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Article 10, Section 10.1, Section 10.1(c) | Comments closed

S 10.1.04

Comments are closed.

(d) “Fully Participating Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Fully Participating Library Releasee that arises out of, with respect to Books and Inserts held by such Fully Participating Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Fully Participating Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’suse in Google Products and Services, (iii) such Fully Participating Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, (iv) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts, to the extent such use is described as a use permitted under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry (Fully Participating) Agreement, as if the Fully Participating Library had been a Fully Participating Library at the time of such use, and (v) such Fully Participating Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after theEffective Date, any act or omission authorized by this AmendedSettlement Agreement or the Library-Registry (Fully Participating) Agreement when that act or omission is undertaken by or on behalf of a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry (Fully Participating) Agreement.

Also posted in Article 10, Section 10.1, Section 10.1(d) | Comments closed

S 10.1.05

Comments are closed.

(e) “Fully Participating Library Releasees” means each Fully Participating Library and all of such Fully Participating Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, students, members, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Article 10, Section 10.1, Section 10.1(e) | Comments closed

S 10.1.06

Comments are closed.

(f) “Google Released Claims” means each and every Claim of everyRightsholder that has been or could have been asserted in the Action against any Google Releasee (including all Claims of copyright infringement, trademark infringement, or moral rights violation) that arises out of: (A) any of the following actions taken on or before the Effective Date, (i) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s, Public Domain Library Releasee’s or Other Library Releasee’s provision of Books and Inserts (or the provision of Books and Inserts in a form Digitized by such Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Library Releasee or Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of Books and Inserts for Google’s use in Google Products and Services other than such uses that are based on authorizations granted to Google under separateagreements entered into directly with the Rightsholder, (iii) the distribution to each Fully Participating Library, Cooperating Library and Public Domain Library of Digital Copies of Books and Inserts held by such library, (iv) any use by a Fully Participating Library, a Cooperating Library or a Public Domain Library of such Digital Copies, to the extent such use is described as a use permitted by a Fully Participating Library under Section 7.2(b) (Use of Library Digital Copies) or is permitted by the applicable Library-Registry Agreement, as if such Fully Participating Library, Cooperating Library or Public Domain Library had been a Fully Participating Library, Cooperating Library or Public Domain Library at the time of such use, and (v) any Fully Participating Library Releasee’s, Cooperating Library Releasee’s or Public Domain Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after theEffective Date, any act or omission authorized by this Amended Settlement Agreement, or a Library-Registry Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this Amended Settlement Agreement or such Library-Registry Agreement; and (C) on or before sixty (60) days after the Settlement Agreement Date,December 27, 2008 the distribution to each Other Library of Digital Copies of Books and Inserts held by such library.

Also posted in Article 10, Section 10.1, Section 10.1(f) | Comments closed

S 10.1.07

Comments are closed.

(g) “Google Releasees” means Google and all of its past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, owners, partners, governors, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives, provided, however, that the Google Releasees do not include any library or any other Person providing a Book or Insert to Google for purposes of Digitization by Google or providing Books and Inserts to Google in a Digitized form, except to the extent such library acts as a contractor to Google as contemplated by Section 3.1 (Digitization, Identification and Use of Books).

Also posted in Article 10, Section 10.1, Section 10.1(g) | Comments closed

S 10.1.08

Comments are closed.

(h) “Other Library Released Claims” means each and every Claim of every Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Other Library Releasee that arises out of, with respect to Books and Inserts held by such Other Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Other Library Releasee’s provision of such Books and Inserts (or Books and Inserts in a form Digitized by such Other Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, and (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Insertsfor use in Google Products and Services; and (B) on or before sixty (60) days after the Settlement Agreement Date,December 27, 2008 such Other Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts (but, for purposes of clarification, not such Other Library Releasee’s use of such Digital Copies).

Also posted in Article 10, Section 10.1, Section 10.1(h) | Comments closed

S 10.1.09

Comments are closed.

(i) “Other Library Releasees” means each Other Library, and all of such Other Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, members, students, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Article 10, Section 10.1, Section 10.1(i) | Comments closed

S 10.1.10

Comments are closed.

(j) “Public Domain Library Released Claims” means each and every Claim ofevery Rightsholder (including all Claims of copyright infringement, trademark infringement, or moral rights violation) against each Public Domain Library Releasee that arises out of, with respect to Books and Inserts held by such Public Domain Library Releasee: (A) any of the following actions taken on or before the Effective Date, (i) such Public Domain Library Releasee’s provision of Books and Inserts (or provision of Books and Inserts in a form Digitized by such Public Domain Library Releasee) to a Google Releasee for the purposes of Digitization and use in Google Products and Services, (ii) any Google Releasee’s Digitization of such Books and Inserts and any Google Releasee’s use of Digital Copies of such Books and Inserts for Google’s use in Google Products andServices, (iii) such Public Domain Library Releasee’s receipt from a Google Releasee of Digital Copies of such Books and Inserts, and (iv) such Public Domain Library Releasee’s use of Digital Copies of such Books and Inserts for Non-Consumptive Research; and (B) after the Effective Date, any act or omission authorized by this Amended Settlement Agreement or the Library-Registry (Public Domain) Agreement when that act or omission is undertaken by a Person who is authorized to undertake it under this AmendedSettlement Agreement or such Library-Registry(Public Domain) Agreement.

Also posted in Article 10, Section 10.1, Section 10.1(j) | Comments closed

S 10.1.11

Comments are closed.

(k) “Public Domain Library Releasees” means each Public Domain Libraryand all of such Public Domain Library’s past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, all of its and their respective contractors and licensees, all of its and their respective officers, directors, trustees, regents, owners, partners, governors, patrons, members, students, employees, and agents, and all of its and their respective nominees, successors, assigns and legal representatives.

Also posted in Article 10, Section 10.1, Section 10.1(k) | Comments closed

S 10.1.12

Comments are closed.

(l) “Releases” means the releases set forth in Section 10.2 (Releases) by all of the Rightsholder Releasors and by all of the Google Releasees.

Also posted in Article 10, Section 10.1, Section 10.1(l) | Comments closed

S 10.1.13

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(m) “Rightsholder Releasors” means Plaintiffs, any and all Rightsholders, and each Plaintiff’s and Rightsholder’s heirs, executors, administrators, beneficiaries, predecessors, successors, assigns, employees, and agents, any person claiming by or through any Rightsholder and any Person representing any or all Plaintiffs and/or Rightsholders.

Also posted in Article 10, Section 10.1, Section 10.1(m) | Comments closed

S 10.1.14

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(n) Scope of Release. Where, in this Article X (Releases), Claims are released, such release includes the reproduction, distribution, transmission, display, and preparation of derivative works of such Books or Inserts undertaken for the purpose of, and only to the extent reasonably required for, making the released use, by whatever means and technology.

Also posted in Article 10, Section 10.1, Section 10.1(n) | Comments closed

S 10.2

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Releases.

Also posted in Article 10, Section 10.2 | Comments closed

S 10.2.1

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(a) Release of Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees and Other Library Releasees. Without further action by anyone, as of the Effective Date, the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged (i) the Google Released Claims against each and every one of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (ii) the Fully Participating Library Released Claims against each and every one of the Fully Participating Library Releasees, (iii) the Cooperating Library Released Claims) against each and every one of the Cooperating Library Releasees, (iv)the Public Domain Library Released Claims against each and every one of the Public Domain Library Releasees, (v) the Other Library Released Claims) against each and every one of the Other Library Releasees, provided that no Other Library Released Claims) are released, relinquished, settled or discharged against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, (vi) all Claims against the Google Releasees, Fully Participating Library Releasees, Cooperating Library Releasees, Public Domain Releasees, Class Counsel and Plaintiffs that relate in any way to the commencement, prosecution, defense or settlement of the Action or to the negotiation or execution of the original Settlement Agreement orthis Amended Settlement Agreement,or theLibrary-Registry Agreements or the Supplemental Agreement Regarding Right toTerminate, and (vii) any and all Claims for attorneys’ fees, costs or disbursements incurred by Class Counsel or other counsel representing Plaintiffs in connection with or related in any manner to the Action, the settlement of the Action, including the negotiation and execution of this the original Settlement Agreement, this Amended Settlement Agreement,or the Author-Publisher Procedures, the Library-Registry Agreements or the Supplemental Agreement Regarding Right to Terminate, or the administration of the Action provided that in the case of this clause (vii) Google meets its payment obligations under Section 5.5 (Attorneys’ Fees).

Also posted in Article 10, Section 10.2, Section 10.2(a) | Comments closed

S 10.2.2

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(b) Limitations on Releases. The Releases are subject to the following: (i) nothing in this Amended Settlement Agreement releases or adversely affects any Claims of any Amended Settlement Class members who opted out of the original Settlement Agreement by September 4, 2009 or who opt out of the Amended Settlement by the Opt-Out Deadline, (ii) no [Claims]theAgreement between the Amended Settlement Agreement Date and the Supplemental (https://nylssites.wpengine.com/thepublicindex/archives/category/settlement/s-10/s-10-1/s-10-1-a) are released with respect to any Digitization or any other form of copying or use of Books or Inserts outside the United States (e.g., making a copy of, or using, a Book in Finland), (iii) no Claims are released with respect to any acts or omissions after the Settlement Agreement DateOctober 28, 2008 that, if occurring after the Effective Date, would not beauthorized by this Amended Settlement Agreement, (iv) no Claims are released with respect to breaches of this Amended Settlement Agreement after the Effective Date, and (v) no Claims are released with respect to any acts of copying, transmission or distribution of a Book or Insert that Google undertakes in response to a search or other request of a user outside of the United States that results in displaying parts or all of such Book or Insert in such user’s jurisdiction, except if such display is lawful in such jurisdiction or Google has the appropriate permission for such display in such jurisdiction. Google agrees that, in asserting or responding to any legal claim outside the United States for copyright infringement arising from any use of Books or Inserts outside the United States, it will not in any way assert, including by way of defense, that, based on the fact that this AmendedSettlement Agreement or the Final Judgment and Order of Dismissal authorizes, or releases Claims relating to, the making of copies or uses of Books and Inserts in the United States, either applicable non-United States law or a Rightsholder authorized such use of Books or Inserts outside the United States.

Also posted in Article 10, Section 10.2, Section 10.2(b) | Comments closed

S 10.2.3

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(c) Effect of Dismissal. The Final Judgment and Order of Dismissal shall have the effect of a dismissal with prejudice of all Fully Participating Library Released Claims, Cooperating Library Released Claims, Public Domain Library Released Claims and Other Library Released Claims as though each Fully Participating Library Releasee, Cooperating Library Releasee, Public Domain Releasee and Other Library Releasee had been named a defendant in the Action, and the Final Judgment and Order of Dismissal shall bar all such Fully Participating Library Released Claims, Cooperating Library Released Claims), Public Domain Library Released Claims and Other Library Released Claims) by any Rightsholder Releasor, provided that the Final Judgment and Order of Dismissal shall have no such effect with respect to, and shall not bar, any Other LibraryReleased Claims against any Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy.

Also posted in Article 10, Section 10.2, Section 10.2(c) | Comments closed

S 10.2.4

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(d) Bar Order. The Final Judgment and Order of Dismissal shall forever bar (a) all Rightsholder Releasors from instituting, maintaining, prosecuting, assigning or collecting on any and all (i) Claims against any Google Releasee, Fully Participating Library Releasee, Cooperating Library Releasee, and Public Domain Library Releasee that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or to the negotiation or execution of thisthe original Settlement Agreement, or this Amended Settlement Agreement or the Library-Registry Agreements, (ii) Google Released Claims against any of the Google Releasees, except as provided in Section 3.5(b)(vii) (Government Works and Public Domain Works), (iii) Fully Participating Library Released Claims against any of the Fully Participating Library Releasees, (iv) the Cooperating Library Released Claims) against any of the Cooperating Library Releasees, (v) the Public Domain Library Released Claims against any of the Public Domain LibraryReleasees, and (vi) Other Library Released Claims) against any of the Other Library Releasees, provided that no Rightsholder Releasor is barred from instituting, maintaining, prosecuting, assigning or collecting on any Other Library Released Claim against an Other Library Releasee if and to the extent such Other Library Releasee, at any time, makes any infringing use of a Digital Copy, including without limitation, by participating in, or recovering as a result of, any class or representative action, whether under United States federal or state law, in which any such Google Released Claims, Fully Participating Library Released Claims, Cooperating Library Released Claims), Public Domain Library Released Claims, or Other Library Released Claims) have been or may be brought, and (b) all Google Releasees, all Cooperating Library Releasees, all Fully Participating Library Releasees, all Public Domain Library Releasees and all Other Library Releasees from instituting, maintaining, prosecuting, assigning or collecting on, any and all Claims against any Rightsholder Releasor or Class Counsel that directly or indirectly relate to, are based upon or arise out of the commencement, prosecution, defense or settlement of the Action, or the negotiation and execution of thisthe original Settlement Agreement, or this Amended Settlement Agreement or the Library-Registry Agreements.

Also posted in Article 10, Section 10.2, Section 10.2(d) | Comments closed

S 10.2.5

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(e) Release of Rightsholder Releasors and Class Counsel. Without further action by anyone, as of the Effective Date, each of the Google Releasees, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation and execution of this Settlement Agreement.

Also posted in Article 10, Section 10.2, Section 10.2(e) | Comments closed

S 10.2.6

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(f) Mutual Releases by Insert/Book Rightsholder Releasors. Without further action by anyone, as of the Effective Date, each of the Google Releasees, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally and forever released, relinquished, settled, and discharged, each Rightsholder Releasor and Class Counsel, from any and all Claims that directly or indirectly relate to, are based upon or arise out of, the commencement, prosecution or settlement of the Action, or the negotiation and execution of this Settlement Agreement. Without further action by anyone, as of the Effective Date, each of the Rightsholder Releasors, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and the Final Judgment and Order of Dismissal shall have, fully, finally, and forever released, relinquished, settled, and discharged Claims arising out of the inclusion, removal or exclusion of a Book or an Insert in or from Google Products and Services by (i) any Rightsholder Releasor that has a Copyright Interest in an Insert against each and every Rightsholder Releasor that has a Copyright Interest in a Book that contains such Insert and (ii) any Rightsholder Releasor that has a Copyright Interest in a Book against each and every Rightsholder Releasor that has a Copyright Interest in an Insert contained in such Book.

Also posted in Article 10, Section 10.2, Section 10.2(f) | Comments closed

S 10.2.7

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(g) Waiver of Section 1542. With respect to any and all of the Releases, upon the Effective Date and without further action, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, all Rightsholder Releasors and Google Releasees shall be deemed to have, and by operation of the Final Judgment and Order of Dismissal shall have, fully, finally, and forever expressly waived and relinquished, to the fullest extent permitted by law, any and all provisions, rights, and benefits of Section 1542 of the California Civil Code and any and all provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation orprinciple of common law that is similar, comparable, equivalent or identical to Section 1542 of the California Civil Code, which provides:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Each Rightsholder Releasor and Google Releasee may hereafter discover factsother than or different from those that he, she, or it knows or believes to be true withrespect to the Claims released by the Releases, but, notwithstanding Section 1542 and any similar provisions, rights, and benefits of any United States federal, state or territorial law, rule or regulation or common law principle, each such Person hereby expressly waives and fully, finally, and forever settles and releases, upon the Effective Date, any known or unknown, suspected or unsuspected, contingent or non-contingent Claim that isreleased by the Releases, without regard to the subsequent discovery or existence of such different or additional facts.

Also posted in Article 10, Section 10.2, Section 10.2(g) | Comments closed

S 10.2.8

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(h) Foreign Claims. No Rightsholder releases any Claim for the reproduction, distribution, transmission, display, adaptation or preparation of derivative works of any Book or Insert in any jurisdiction outside the United States.

Also posted in Article 10, Section 10.2, Section 10.2(h) | Comments closed

S 11

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ARTICLE 11 – PRELIMINARY SETTLEMENT APPROVAL

As soon as practicable after the AmendedSettlement Agreement Date, Plaintiffs shall file a Motion For Preliminary Approval of the Amended Settlement ApprovalAgreement , together with a Proposed Order For Preliminary Settlement Approval substantially in a form attached hereto as Attachment H ([Proposed] Order Granting Preliminary Settlement).

Also posted in Article 11 | Comments closed

S 12

3 responses to “S 12”

  1. Gillian Spraggs says:

    ‘publishing the Summary Notice (translated from English whenever appropriate) in the publications listed on the Paid Media Schedule attached hereto as Attachment K’

    If the intention really was to ensure that UK authors were properly notified, the selection of UK papers and magazines listed in Attachment K is distinctly odd: no Guardian (which has a big book review supplement on Saturdays), no Times Literary Supplement or London Review of Books.

  2. Interesting. Court-required publication of notices has always been odd; I’ve never fully understood the theory by which publishing a notice of a name change in a single newspaper chosen by the court is a significant improvement over no notices at at all. While the papers and magazines in the U.K. in attachment K are important ones, they’re not the ones that matter most to the publishing and literary community.

  3. Gillian Spraggs says:

    To an English person, the choice of papers is actually rather funny. The News of the World might be politely called a scandal-sheet (its traditional nickname may be too crude for a respectable legal website); The Daily Telegraph (aka Daily Torygraph) has been known for decades as ‘the house organ of the Conservative Party’; while the Daily Mail and its companion paper the Mail on Sunday are tabloids aimed at the right-wing lower-middle-class. If I were a dedicated conspiracy theorist, I’d speculate that there has been a real attempt to avoid alerting the left wing.

ARTICLE 12 – CLASS NOTICE PROGRAM

In connection with the motion filed pursuant to Article XI (Preliminary Settlement Approval), Class Counsel will submit to the Court a proposed Notice of Class Action Settlement (“Notice”) and a Summary Notice of Class Action Settlement (“Summary Notice”) substantially in the forms attached hereto, respectively, as Attachment I (Notice of Class Action Settlement) and Attachment J (Summary Notice of Class Action Settlement). Class Counsel will recommend to the Court that the Class Notice Program provide notice to the widest practicable group of Settlement Class members inside and outside the United States, and that the Class Notice Program will consist of the following: (a) Direct Notice – sending the Notice (translated from English whenever appropriate) by email or first class mail, postage prepaid, to those Settlement Class Class members that can be identified by any reasonable means, with notice by email used whenever possible, and postal notice limited to those Settlement Class members whose email addresses are unavailable; (b) Paid Media – publishing the Summary Notice (translated from English whenever appropriate) in the publications listed on the Paid Media Schedule attached hereto as Attachment K (Paid Media Schedule), or reasonable substitutes, if necessary (e.g., if certain publications decline to publish the Summary Notice), that will provide the same level of coverage to the intended audience, as well asusing online advertising directing users to the Settlement Website; (c) Earned Media – utilizing press coverage, including the issuance by Google and the Plaintiffs of joint press releases and convening of a joint press conference, which will, among other things, provide the press with the address of the website dedicated to the Settlement as referenced below and contact information for Settlement Class members to learn about the Settlement and how to obtain the Notice; (d) Additional Outreach – providing notice materials to websites and organizations whose constituencies may include Settlement Class members and encouraging them to direct interested parties to the Settlement Administrator or the Settlement Website; and (e) Settlement Website – maintenance of a website dedicated to the Settlement and through which the Notice, this Settlement Agreement, and other relevant information (translated from English whenever appropriate) will be made available (the “Settlement Website”). In connection with clause (d), from the Settlement Agreement Date to the Opt-Out Deadline, Google prominently will display a statement on the Google Book Search home page (http://books.google.com) informing users that an agreement has been reached with authors and publishers and linking to a user information page. At the top of such user information page immediately beneath its title, Google will display a statement directing authors, publishers and copyright holders to visit the Settlement Website and linking to the Settlement Website. All Administrative Costs, including the costs of the Class Notice Program, shall be paid solely out of the Settlement Fund.

Also posted in Article 12 | Comments closed

S 12.1

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Original Notice. In connection with the motion filed pursuant to Article XI (Preliminaryon October 28, 2008 for preliminary approval of the Settlement Approval)Agreement, Class Counsel will submitsubmitted to the Court a proposed Notice of Class Action Settlement (“Notice”) and a Summary Notice of Class Action Settlement (“Summary Notice”) substantially in the forms attached hereto, respectively, as Attachment I (Notice of Class Action Settlement) and Attachment J (Summary Notice of Class Action Settlement). Class Counsel will recommendrecommended to the Court that the Class Notice Program provide notice to the widest practicable group of Settlement Classoriginal settlement class members inside and outside the United States, and that the Class Notice Program willwould consist of the following: (a) Direct Notice – sending the Notice (translated from English whenever appropriate) by email or first class mail, postage prepaid, to those Settlement Classoriginal settlement class members that cancould be identified by any reasonable means, with notice by email used whenever possible, and postal notice limited to those Settlement Classoriginal settlement class members whose email addresses arewere unavailable; (b) Paid Media – publishing the Summary Notice (translated from English whenever appropriate) in the publications listed on the Paid Media Schedule attached hereto as Attachment K (Paid Media Schedule), or reasonable substitutes, if necessary (e.g., if certain publications declinedeclined to publish the Summary Notice), that willwould provide the same level of coverage to the intended audience, as well as using online advertising directing users to the Settlement Website; (c) Earned Media – utilizing press coverage, including the issuance by Google and the Plaintiffs of joint press releases and convening of a joint press conference, which willwould, among other things, provide the press with the address of the website dedicated to the Settlement as referenced below and contact information for Settlement Classoriginal settlement class members to learn about the Settlement and how to obtain the Notice; (d) Additional Outreach – providing notice materials to websites and organizations whose constituencies may include Settlement Classhave included original settlement class members and encouraging them to direct interested parties to the Settlement Administrator or the Settlement Website; and (e) Settlement Website – maintenance of a website dedicated to the Settlement and through which the Notice, thisthe original Settlement Agreement, and other relevant information (translated from English whenever appropriate) willwould be made available, located at http://www.googlebooksettlement.com (the “Settlement Website”). In connection with clause (d), from the Settlement Agreement Date to the Opt-Out Deadline, GoogleGoogle agreed to prominently will display a statement on the Google Book Search home page (http://books.google.com/) informing users that an agreement hashad been reached with authors and publishers and linking to a user information page. At the top of such user information page immediately beneath its title, Google willagreed to display a statement directing authors, publishers and copyright holders to visit the Settlement Website and linking to the Settlement Website. All Administrative Costs, including the costs of the Class Notice Program, shall be paid solely out of the Settlement Fund. By Order dated November 14, 2008, the Court approved the form and aforementioned manner of dissemination of the Notice and Summary Notice, and Plaintiffs implemented the Class Notice Program as ordered.

Also posted in Article 12, Section 12.1 | Comments closed

S 12.2

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Supplemental Notice. Class Counsel will submit to the Court a proposed Supplemental Notice of Class Action Settlement (“Supplemental Notice”) substantially in the form attached hereto as Attachment N Supplemental Notice). Class Counsel will recommend to the Court that the Supplemental Notice (translated into the same languages into which the original Notice was translated) be (a) emailed or sent by postal mail to all Persons who provided contact information on the Settlement Website or on a Claim Form, who opted out of the original Settlement Agreement, or who filed an objection, amicus position or other statement with the Court, (b) emailed or sent by postal mail to all authors’ and publishers’ groups and Reproduction Rights Organizations that assisted Plaintiffs in the dissemination of the original Notice, (c) placed on the Settlement Website, and (d) announced in and outside the United States, Canada, the United Kingdom and Australia with a press release issued by the Supplemental Notice provider. In addition, the Settlement Administrator will continue its informational toll-free telephone service. All Administrative Costs, including the costs of the Class Notice Program, shall be paid solely out of the Settlement Fund.

Also posted in Article 12, Section 12.2, Uncategorized | Comments closed

S 13

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SETTLEMENT ADMINISTRATION PROGRAM

Also posted in Article 13 | Comments closed

S 13.1

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Registration and Completing Claims. To receive the benefits of the Settlement, a Person claiming to be a Rightsholder or acting on behalf of a Rightsholder (a “Claimant”) must provide to the Registry the information set forth below on a claim form that Plaintiffs and Google will submit to the Court for its approval prior to the Notice Commencement Date The claim form provided by the Settlement Administrator (“Claim Form”); provided that, if a Publisher Sub-Class Claimant selects Section 13.1(c)(ii)(2)(B) rather than Section 13.1(c)(ii)(2)(A) for a Book, then Claimant may not make a claim for a Cash Payment for that Book and may not Remove that Book, but Claimant’s rights under the Amended Settlement Agreement (includingthe right to exclude a Book from Display Uses) will not otherwise be affected by such selection. Claimants will be able to complete and submit their Claim Forms on the Settlement Website, by postal mail, and otherwise as the Registry may determine in order to maximize Rightsholder efficiency in completing the Claim Forms.

Also posted in Article 13, Section 13.1 | Comments closed

S 13.1.1

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(a) General Information. A Claimant must provide the following

Also posted in Article 13, Section 13.1, Section 13.1(a) | Comments closed

S 13.1.1.1

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(i) his, her or its name and contact information, including postal address, telephone number and, if available, email address, and if the Claimant is, or is acting on behalf of, a U.S. Person, that Person’s social security number or other tax identification number; and

Also posted in Article 13, Section 13.1, Section 13.1(a), Section 13.1(a)(i) | Comments closed

S 13.1.1.2

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(ii) an attestation that (1) all of the information submitted on the Claim Form is true to the best of his, her or its knowledge, information and belief, and(2) the Claimant has a good faith belief that he, she or it holds a Copyright Interest in the Book or the Insert that is the subject of the claim, or that the Person who holds such a Copyright Interest has authorized the Claimant to act on such Person’s behalf.

Also posted in Article 13, Section 13.1, Section 13.1(a), Section 13.1(a)(ii) | Comments closed

S 13.1.2

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(b) Pre-Population of Claim Forms. Based on a Claimant’s identification of Books, Google, through a search and selection interface, will pre-populate information regarding those Books in the Settlement Website’s Claim Form for Books.

Also posted in Article 13, Section 13.1, Section 13.1(b) | Comments closed

S 13.1.2.3

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(iii) provide information sufficient to identify such Book, including, at a minimum, either the (1) title of the Book and the name(s) of the author(s) and/or editors of the Book or (2) ISBN (if the Book has an ISBN); and

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(iii) | Comments closed

S 13.1.2.4

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(iv) state either (1) that such Claimant believes that such Book is not a “United States work,” as defined in 17 U.S.C. § 101 or (2) that such Claimant believes that such Book was registered with the U.S. Copyright Office by the Notice Commencement Date. A Claimant may provide information through a data feed, an electronic spreadsheet or such other means as the Registry may specify in order to maximize Rightsholder efficiency in completing the claim forms.

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(iv) | Comments closed

S 13.1.3

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(c) Books. To claim a Book (not including its Inserts), a Claimant must:

Also posted in Article 13, Section 13.1, Section 13.1(c) | Comments closed

S 13.1.3.1

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(i) identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Book;

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(i) | Comments closed

S 13.1.3.2

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(ii) indicate on the Claim Form, to the best of Claimant’s knowledge,whether such Book:

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(ii) | Comments closed

S 13.1.3.2.1

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(1) is or is not a work for hire, and

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Section 13.1(c)(ii)(1) | Comments closed

S 13.1.3.2.2

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(2) for a Publisher Sub-Class member Claimant, whether (A) such Publisher Sub-Class member is highly confident that the Book is not reverted (based, e.g., on the individual Book or contract for the Book) or(B) such Publisher Sub-Class member is confident that the Book is not reverted (based, e.g., on the type of Book or type of contract for the Book), or

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Section 13.1(c)(ii)(2) | Comments closed

S 13.1.3.2.3

2 responses to “S 13.1.3.2.3”

  1. ehasbrouck says:

    What is “reverted” supposed to mean if no electronic rights were licnsed or granted ounder the original contract between the author and the print publisher? The appropriate questions should be questions about the copyright ownership and the terms of any pre-existing contracts: Whether the claimed electronic rights are exclusive or non-exclusive,whether they can be exercised or licensed individually or only by joint consent of the rightsholders (e.g. multiple authors, or both the author or publisher) , and what percentages of revenues are due to which parties. (A publisher-author contract, for example, minght have granted the publisher the exclusive right to market electronic and other subsidiary rights, but subject to the approval of the author, with a 50/50 of 60/40 or 4/60 or other revenue split.) The question about “reversion” embodies a whole portmanteau of assumptions, not necessarily justified, about the terms of pre-exisitng author-publisher contracts.

  2. Gillian Spraggs says:

    Further to the comment by ehasbrouck: this section also assumes, quite wrongly, that in every case the original contract has licensed the US rights to the publisher. But there are many works by foreign authors (myself among them) where the US rights have never been the subject of a contract. The author has always retained them; ergo, they cannot revert.

(3) for an Author Sub-Class member Claimant, whether (A) such Book is or is not reverted or (B) Claimant does not know whether such Book is reverted;

Also posted in Article 13, Section 13.1, Section 13.1(c), Section 13.1(c)(ii), Section 13.1(c)(ii)(3) | Comments closed

S 13.1.4

Comments are closed.

(d) Inserts. To claim an Insert, a Claimant must identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Insert and must provide information sufficient to identify such Insert, which information shall include:

Also posted in Article 13, Section 13.1, Section 13.1(d) | Comments closed

S 13.1.4.1

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(i) To claim an Insert, a Claimant must identify whether he, she or it is the author, publisher, heir, successor or assignee, or other type of Rightsholder of the Insert and must provide information sufficient to identify such Insert, which information shall include identification or a description of the content of the Insert, and identification of the Book, Public Domain Book or Government Work in which the Insert appears;

Also posted in Article 13, Section 13.1, Section 13.1(d), Section 13.1(d)(i) | Comments closed

S 13.1.4.2

One response to “S 13.1.4.2”

  1. Gillian Spraggs says:

    Why did they specify the date June 1, 2003? It presumably wasn’t picked out at random.

(ii) 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; and

Also posted in Article 13, Section 13.1, Section 13.1(d), Section 13.1(d)(ii) | Comments closed

S 13.1.4.3

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(iii) a statement either (1) that such Claimant believes that the Insert is not part of a work that was first published in the United States or (2) that such Claimant believes that such Insert, either alone or as part of another work, was registered with the U.S. Copyright Office by the Notice Commencement Date.

Also posted in Article 13, Section 13.1, Section 13.1(d), Section 13.1(d)(iii) | Comments closed

S 13.2

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Validating and Challenging Claims.

Also posted in Article 13, Section 13.2 | Comments closed

S 13.2.1

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(a) Registry Claim Review. The Registry may review claim forms to verify that the information provided by a Claimant is accurate and supports the claim that the Claimant, or the Person on whose behalf the Claimant is acting, is a Rightsholder of a Book or an Insert. Google may also provide to the Registry any information that Google may have regarding the validity of claims. The Registry may challenge the validity of a claim either on its own accord or based on a dispute between or among Rightsholders under the Author-Publisher Procedures. If the Registry reasonably requests that a Claimant provide additional information to validate such claim, the Claimant shall provide such information if it is within his, her or its possession or control. The Registrymay consider such information and, in its discretion, consult with the Claimant tovalidate the claim. The Registry will advise the Claimant whether the Registry has validated or rejected its claims.

Also posted in Article 13, Section 13.2, Section 13.2(a) | Comments closed

S 13.2.2

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(b) Claimant-Registry Challenges. The Claim Form will provide that the Claimant may challenge, pursuant to Article IX (Dispute Resolution), any Registry decision not to validate his, her or its claim.

Also posted in Article 13, Section 13.2, Section 13.2(b) | Comments closed

S 13.2.3.1

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(i) As set forth in this Section 13.2(c) (Google-Claimant Challenges), to deter and discover fraud, mistake, intentional misconduct or negligence by Claimants in submitting Claim Forms, Google may challenge whether a Claimant is a Rightsholder of the Book or Insert that he, she or it has claimed only in the case that the Claimant has requested Cash Payments or Removal.

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(i) | Comments closed

S 13.2.3.2

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(ii) Google may only make such a challenge under the following conditions:

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(ii) | Comments closed

S 13.2.3.2.1

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(1) in the case of requests for Cash Payments, Google may only make such a challenge if the total amount of all claims for Cash Payments exceeds forty-five million United States dollars (U.S. $45 million), and

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(ii), Section 13.2(c)(ii)(1) | Comments closed

S 13.2.3.2.2

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(2) in the case of requests for Removal of Books that are not Commercially Available, Google may only make such a challenge if the total number of Books that are not Commercially Available that Claimants have directed to be Removed exceeds two hundred thousand (200,000).

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(ii), Section 13.2(c)(ii)(2) | Comments closed

S 13.2.3.3

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(iii) Further, Google may only make such a challenge if:

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(iii) | Comments closed

S 13.2.3.3.1

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(1) (A) such Claimant has filed such claims for more than (I) a number of Books or Inserts agreed between Google and the Plaintiffs in the case of a challenge brought pursuant to clause (ii)(1) above, or (II) another number of Books agreed between Google and the Plaintiffs in the case of a challenge brought pursuant to clause (ii)(2) above, in a confidential letter agreement, such numbers not disclosed herein for the purpose of fraud prevention, or (B) Google believes that such Claimant is a Person that has registered multiple claims under one or more aliases, and

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(iii), Section 13.2(c)(iii)(1) | Comments closed

S 13.2.3.3.2

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(2) no dispute between such Claimant and any other Claimants for the Book was, or is being, resolved pursuant to the Author-Publisher Procedures.

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(iii), Section 13.2(c)(iii)(2) | Comments closed

S 13.2.3.4

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(iv) Any challenge in the case of:

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(iv) | Comments closed

S 13.2.3.4.1

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(1) clause (ii)(1) above may be made no later than ninety (90) days after the later of (A) the date Google receives the Registry’s final report under Section 13.513.6 (Final Report Regarding Cash Payments) or (B) the Effective Date, or

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(iv), Section 13.2(c)(iv)(1) | Comments closed

S 13.2.3.4.2

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(2) clause (ii)(2) above may be made no later than ninety (90) days after the later of (A) the condition in clause (ii)(2) has been met, (B) the Effective Date or (C) the date the request for Removal was made.

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(iv), Section 13.2(c)(iv)(2) | Comments closed

S 13.2.3.5

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(v) Any challenge brought pursuant to this Section 13.2(c) (Google Claimant Challenges) must be based on Google’s good faith belief, supported by evidence, that the Claimant’s claim may be invalid. Google shall not challenge claims in an effort to deter Claimants from submitting valid claims.

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(v) | Comments closed

S 13.2.3.6

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(vi) Google will initiate challenges by providing notice to the Registry, and the Registry will forward such notice to the Claimant. Google will attempt to resolve the challenge with the Registry, or another representative chosen by the Claimant, on behalf of the Claimant. If Google is unable to resolve the challengewith the Registry or such other representative on behalf of the Claimant andcontinues to have a good faith belief, supported by evidence, that the claimant’s claim may be invalid, then Google may initiate dispute resolution pursuant to Article IX (Dispute Resolution). Provided that the Claimant completes the Claim Form as required, including providing all required attestations, Google will bear the burden of providing clear and convincing evidence, including significant evidence specific to the Books or Inserts that are the subject of the claim, which evidence is reviewed by an individual such as a Google attorney, that a reasonable number of the Claimant’s claims within a set of claims identified by Google are invalid; provided that information about Books other than those that are the subject of Claimant’s claims will only be used by Google to challenge the Claimant’s claims for an imprint if Google shows that such information is relevant to such claims; provided, further that evidence of industry-wide baseline error rates in claims filed with the Registry is not clear and convincing evidence. (For purposes of this Section 13.2(c)(vi), a “set of claims,” means, with respect to claims of a member of the Publisher Sub-Class, claims of Books published by such member’s imprint, that are similar with respect to such evidence and that share other characteristics, such as genre and date of publication.) If Google meets this burden, the Claimant will bear the burden of proving the validity of the claims within such set. If Google does not meet this burden, Google will bear the burden of proving the invalidity of the challenged claims.

Also posted in Article 13, Section 13.2, Section 13.2(c), Section 13.2(c)(vi) | Comments closed

S 13.2.3.7

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(vii) Nothing in this [Settlement Agreement](https://nylssites.wpengine.com/thepublicindex/archives/category/settlement/s-1/s-1-140 obligates Google to take directions for which this Settlement Agreement provides, or to make Cash Payments, with respect to content that is not a Book or an Insert. Any Claimant may dispute a determination by Google or the Registry that the content that such Claimant has claimed is not a Book or an Insert only pursuant to Article IX(Dispute Resolution). A claim for a Commercially Available Book shall not be subject to any challenge under this Section 13.2(c)(Google-Claimant Challenges) unless, upon review of the Claim Form and other information that Google may reasonably consult, there is no apparent link between the Claimant and the publisher of the Book. In any challenge with respect to a Commercially Available Book where Google asserts that the claim is invalid because rights in the Book have reverted, Google shall provide clear and convincing evidence specific to such Book.

Also posted in Article 13, Section 13.2, Section 13.2(c)(vii) | Comments closed

S 13.2.4

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(d) Claims for Content that is Neither a Book nor an Insert. Nothing in this Amended Settlement Agreement obligates Google to take directions for which this Amended Settlement Agreement provides, or to make Cash Payments, with respect to content that is not a Book or an Insert. Any Claimant may dispute a determination by Google or the Registry that the content that such Claimant has claimed is not a Book or an Insert only pursuant to Article IX (Dispute Resolution).

Also posted in Article 13, Section 13.2, Section 13.2(d) | Comments closed

S 13.3

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(c) Google-Claimant Challenges.

Also posted in Article 13, Section 13.2, Section 13.2(c) | Comments closed

S 13.3

One response to “S 13.3”

  1. […] fairness hearing on February 18, 2010. As particularly close followers of the settlement know, the deadline for claiming the $60 one-time cash payment for already-scanned works is March 31, 2011. These two […]

Time for Filing Deadline for Registration/Claim Forms. Rightsholdersmay register to participate in the Settlement at any time, provided that a Rightsholder who may be eligible for a Cash Payment pursuant to Section 5.1 (Cash Payment to Class Members Whose Books and Inserts Have Been Digitized) shall be required to complete and submit the portion of the Claim Form relating to the claim for such Cash Payment within one year of the Notice Commencement Date by midnight, Eastern Time, March 31, 2011 or such other time as the Court may order.

Also posted in Article 13, Section 13.3 | Comments closed

S 13.3

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Claiming Process and Website. The Registry and, for so long as Google continues to provide operational support for the Registry, Google, will (i) assist Claimants in claiming Books pursuant to Section 13.1 (Registration and Completing Claim Forms) and (ii) maintain and improve the Settlement Website so as to facilitate the claiming of Books pursuant to Article XII (Class Notice Program). Google will also use reasonable commercial efforts to correct errors in the Books Database as Google discovers such errors or as they are identified to Google.

Also posted in Article 13, Section 13.3 | Comments closed

S 13.4

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Registry Determination of Rightsholder. The Registry will maintain adatabase of Rightsholders and their respective rights under, and directions made pursuant to, this Amended Settlement Agreement. Except as provided in Section 13.2 (Validating and Challenging Claims), in the event of a dispute as to such rights and directions, the Registry will determine the appropriate Rightsholder(s) (for Books, pursuant to the Author-Publisher Procedures) or, if the Registry cannot resolve any such dispute, such dispute will be resolved as provided in Article IX (Dispute Resolution). Until such determination is made, the Registry shall not make any Cash Payment or other payment, or implement any direction for Removal, exclusion, inclusion, or pricing, or any other directions with respect to the matters that are the subject of such dispute.

Also posted in Article 13, Section 13.4 | Comments closed

S 13.5

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Final Report Regarding Cash Payments.

Also posted in Article 13, Section 13.5 | Comments closed

S 13.5.1

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(a) Draft Final Report. Within a reasonable time after the period set forth in Section 13.313.4 (Time for Filing Deadline for Registration/Claim Form) for a Rightsholder to submit a Claim Form for a Cash Payment, the Registry shall issue a draft final report to Google and Class Counsel setting forth: (i) the number of valid Claim Forms requesting such Cash Payment, (ii) a list of the Books claimed, (iii) a list of the Inserts claimed and the Books, Government Works or Public Domain Works in which they appear, and (iv) the amount of the Supplemental Deposit, if any, that Google is required to make pursuant to Article V (Other Settlement Benefits) based on the information in such draft final report.

Also posted in Article 13, Section 13.5, Section 13.5(a) | Comments closed

S 13.5.2

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(b) Further Information. Based on the draft final report, Google will provide the following information:

Also posted in Article 13, Section 13.5, Section 13.5(b) | Comments closed

S 13.5.2.1

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(i) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an any Insert for which a Cash Payment has been requested (1) for appearance of the Insert in more than one Book, Principal Work or Government Work, and (2) for the Book in which such Insert appeared as content that was not an Insert, any Book for which a Cash Payment has been requested (1) that has the same Principal Work as another Book for which a Cash Payment has also been requested and (2) where the soft cover Book does not contain additional or different Protected Expression as compared to the hard cover Book but a Cash Payment has been requested for both,

Also posted in Article 13, Section 13.5, Section 13.5(b), Section 13.5(b)(i) | Comments closed

S 13.5.2.2

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(ii) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an any Insert for which a Cash Payment has been requested (1) for appearance of the Insert in more than one Book, Principal Work or Government Work, and (2) for the Book in which such Insert appeared as content that was not an Insert, and

Also posted in Article 13, Section 13.5, Section 13.5(b), Section 13.5(b)(ii) | Comments closed

S 13.5.2.3

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(iii) any Principal Work for which a Cash Payment has been requested both for that Principal Work and for Expression from that Principal Work that is an Insert.

Also posted in Article 13, Section 13.5, Section 13.5(b), Section 13.5(b)(iii) | Comments closed

S 13.5.3

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(c) Final Report. The Registry will issue a final report setting forth the information in Section 13.5(a)13.6 (Draft Final Report), as amended to take into account the further information provided by Google pursuant to Section 13.5(b)13.6 (Further Information) and to be consistent with Google’s obligations under Section 5.1(a) (Cash Payments).

Also posted in Article 13, Section 13.5(c) | Comments closed

S 13.5.4

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(d) Disputes. Any disputes regarding the final report shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 13, Section 13.5, Section 13.5(d) | Comments closed

S 13.6

3 responses to “S 13.6”

  1. To the non-legal mind, this sounds very much as though they are saying: ‘Oh, by the way, we could give the promised cash payments for your books to any old claimant, or, indeed, withhold them altogether, and you will have no right to sue us.’ Is that what it means?

  2. I would think mostly, yes. The remedy for misdirected payments is to look to the person to whom the payments were mistakenly sent. The idea is that you’re supposed to sue them, not Google or the Registry, etc. If Google or the Registry started simply withholding payments completely, I would think that would end up being actionable as a breach of the settlement agreement itself, or perhaps a violation of the Registry’s charter.

  3. ‘actionable as a breach of the settlement agreement itself’

    But doesn’t the second part rule that out:

    this Amended Settlement Agreement is not intended to, nor shall it in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against Plaintiffs, Class Counsel, the Registry, Settlement Administrator or other agents designated by Class Counsel, Google or its counsel, or any third party

    ‘Any third party’ would even seem on the face of it to rule out action against a person who was sent a payment in error by the person(s) to whom it should have been sent.

No Liability For Settlement or Registry Administration. No Person will have any claim against Plaintiffs, Class Counsel, Google, the Registry, the Settlement Administrator or any agent of any such Person for (a) any decision with respect to any Cash Payment or (b) actions taken with respect to any Cash Payments or other disbursements from the Settlement Fund. Except as expressly set forth herein, this Amended Settlement Agreement is not intended to, nor shall it in any way be construed or interpreted to, create or support any cause of action or any claim for damages or injunctive relief against Plaintiffs, Class Counsel, the Registry, Settlement Administrator or other agents designated by Class Counsel, Google or its counsel, or any third party.

Also posted in Article 13, Section 13.6 | Comments closed

S 14

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FINAL FAIRNESS HEARING

Plaintiffs shall, at least one week prior to the hearing for final approval of this Amended Settlement Agreement (the “Final Fairness Hearing”), as set by the Court, or some other time as the Court may order, file a Motion for Final Judgment and Order of Dismissal substantially in the form attached hereto as Attachment L ([Proposed] Final Judgment and Order of Dismissal).

Also posted in Article 14 | Comments closed

S 15

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SECTION XV – CONFIDENTIALITY

Also posted in Article 15 | Comments closed

S 15.1

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Confidential Information. “Confidential Information” means any information relating to or disclosed in the course of implementing this the original Settlement Agreement or this Amended Settlement Agreement by any Plaintiff or Google, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, including the content of negotiations between any of Plaintiffs and Google, information about any customers, resellers and advertisers, technical processes and algorithms, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data or pricing of any Plaintiff or Google, including information that may be disclosed by an auditor under Sections 4.6(e) (Audit Rights), 6.3(d) (Audit Rights) and 8.2(c) (Audits). “Confidential Information” shall not include information (a) that members of the Amended Settlement Class reasonably have the right to know as Amended Settlement Class members represented in the Action, (b) already lawfully known by the receiving party without an obligation of confidentiality, (c) independently developed by the receiving party at any time without use of or reference to Confidential Information, (d) disclosed in published materials, (e) generally known to the public, or (f) lawfully obtained from any third party without breach of such third party’s obligations of confidentiality.

Also posted in Article 15, Section 15.1 | Comments closed

S 15.2

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Obligations. Confidential Information shall be governed by the Settlement Discussions Confidentiality Agreement and such agreement shall continue to be in effect according to its terms. The Registry and Google will enter into a non-disclosure agreement that will supersede the Settlement Discussions Confidentiality Agreement on a going forward basis.

Also posted in Article 15, Section 15.2 | Comments closed

S 15.3

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Confidentiality of Rightsholder Information. Google shall maintain and keep in strict confidence, and shall not use or disclose for any purpose other than to effectuate this Amended Settlement Agreement, any Rightsholder’s personally identifiable information (i.e., any information that can be used to uniquely identify, contact or locate a single person, including the Rightsholder’s computer’s unique identifier information) that Google receives in connection with the process by which Rightsholders register with the Registry, claim Books and Inserts or otherwise participate under this Amended Settlement Agreement, whether such information is received from the Registry or from the Rightsholder. These restrictions, however, do not apply to Rightsholder information that is publicly available or obtained by Google from other sources, and shall not limit any uses by Google that are authorized by the Rightsholder.

Also posted in Article 15, Section 15.3 | Comments closed

S 15.4

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Disclosures Required by Law. In the event disclosure of Confidential Information is required of any party under the laws, rules or regulations of any applicable governing body, the party requested to make the disclosure (the “Disclosing Party”) will (a) only disclose that portion of the Confidential Information of the other party (the “Other Party”) reasonably required to be disclosed, (b) submit a request to such governing body that the Confidential Information or portions thereof receive confidential treatment under the laws, rules and regulations of such governing body or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body, (c) provide notice to the Other Party in advance of the disclosure so the Other Party may, at its election, seek confidential treatment for the Confidential Information, a protective order or other appropriate remedy, relief or assurances, and (d) co-operate with the Other Party to obtain such confidential treatment, orders or other remedies, relief or reliable assurances that confidential treatment will be afforded the Confidential Information so disclosed. Disclosure under this Section 15.4 (Disclosures Required by Law) shall not relieve the Disclosing Party of its obligations of confidentiality generally under this Amended Settlement Agreement. In no event shall the Disclosing Party oppose an action by the Other Party to obtain a protective order or other relief requiring that Confidential Information to be disclosed under this Section 15.4 (Disclosures Required by Law) be treated confidentially.

Also posted in Article 15, Section 15.4 | Comments closed

S 16

2 responses to “S 16”

  1. Gillian Spraggs says:

    The Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffs and Google

    What about the rest of the settlement class? If this document is part of the settlement agrement, surely they have a right to see it?

  2. That’s a good question. This clause gives a potentially open-ended right to terminate to the parties, on conditions and with procedures that are spelled out in a secret document. I would think that the contents of that document would be critical for authors and publishers to evaluate whether or not the settlement is a good deal for them.

ARTICLE XVI — RIGHT TO TERMINATE AGREEMENTIntentionally Omitted

Google, the Author Sub-Class, and the Publisher Sub-Class each will have theright but not the obligation to terminate this Settlement Agreement if the withdrawal conditions set forth in the Supplemental Agreement Regarding Right to Terminate between Plaintiffs and Google have been met. Any decision by Google, the Author Sub-Class or the Publisher Sub-Class to terminate this Settlement Agreement pursuant to this Article XVI (Right to Terminate Agreement) will be in accordance with the procedures set forth in the Supplemental Agreement Regarding Right to Terminate. The Supplemental Agreement Regarding Right to Terminate is confidential between Plaintiffsand Google, and will not be filed with the Court except as provided therein.

Also posted in Article 16 | Comments closed

S 17

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ARTICLE XVII — MISCELLANEOUS PROVISIONS

Also posted in Article 17 | Comments closed

S 17.01

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Good Faith Efforts. Google and Plaintiffs shall cooperate in good faith to effectuate this Amended Settlement Agreement as soon as practicable, including cooperating as set forth herein in seeking the Court’s certification of the Amended Settlement Class, the Court’s preliminary and final approval of the Settlement, and the Court’s approval of procedures to secure the prompt, complete and final dismissal with prejudice of the Action. Further, Google and the Registry shall at all times perform their respective obligations under this Amended Settlement Agreement in good faith and with fair dealing.

Also posted in Article 17, Section 17.1 | Comments closed

S 17.02

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Plaintiffs’ Participation in Settlement. None of the Representative Plaintiffs or Associational Plaintiffs will opt out of or object to the Settlement.

Also posted in Article 17, Section 17.2 | Comments closed

S 17.03

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Final if Not Terminated. This Amended Settlement Agreement, if not terminated pursuant to any provision hereof, shall become final on the Effective Date and shall expire on the date on which the last U.S. copyright in any Book or Insert terminates.

Also posted in Article 17, Section 17.3 | Comments closed

S 17.04

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Dismissal of Action. Upon the Final Approval Date, Plaintiffs and Rightsholders shall be deemed to have stipulated that the Action shall be dismissed with prejudice.

Also posted in Article 17, Section 17.4 | Comments closed

S 17.05

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Effect of Termination. Upon the Final Approval Date, Plaintiffs and Rightsholders shall be deemed to have stipulated that the Action shall be dismissed with prejudice. In the event thisAmended Settlement Agreement does not become final for any reason, this Amended Settlement Agreement shall be null and void (except for the second sentence of Section 5.3(h) (Google Rights and Obligations), the first sentence of Section 15.2 (Obligations) and Section 17.6 (Reimbursement if Terminated), which will remain in full force and effect) and of no force and effect (unless all Plaintiffs and Google agree to proceed with the Amended Settlement as they may agree to modify it (subject to Section 7.2(f)(iv) (No Modification Without Consent)), in which event Plaintiffs and Google shall proceed with this Amended Settlement Agreement as so modified), and this Amended Settlement Agreement and all negotiations and proceedings connected with it shall be without prejudice to the rights of either Google or any of the Plaintiffs, shall not be deemed or construed to be an admission by Google or any of the Plaintiffs of any fact or matter, and shall not be used in any way in the Action or in any other action or proceedings, and all parties shall have the same legal rights and obligations as they had before the Amended Settlement Agreement Date with respect to the matters covered by this Amended Settlement Agreement, except with respect to payments of Administrative Costs. In addition, the Settlement Discussions Confidentiality Agreement shall continue to be in effect according to its terms.

Also posted in Article 17, Section 17.5 | Comments closed

S 17.06

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Reimbursement if Terminated. Subject to Article XVI (Right to Terminate Agreement), if thisIf this Amended Settlement Agreement becomes null and void pursuant to Section 17.5 (Effect of Termination), within five (5) Business Days of notice by Google to Plaintiffs of such event, the balance of the Settlement Fund, including interest, shall be disbursed to Google by wire transfer into an account designated by Google, less all Administrative Costs incurred or owing for the Settlement Administration Program. For purposes of the disbursement made pursuant to this Section 17.6 (Reimbursement if Terminated), no deduction shall be made for fees of Class Counsel for the Author Sub-Class or for any costs other than those Administrative Costs already incurred. ClassCounsel shall not be responsible for any losses, principal or otherwise, of the Settlement Fund.

Also posted in Article 17, Section 17.6 | Comments closed

S 17.07

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Jurisdiction.

Also posted in Article 17, Section 17.7 | Comments closed

S 17.07.1

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(a) Use Outside the United States.

Also posted in Article 17, Section 17.7, Section 17.7(a) | Comments closed

S 17.07.1.1

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(i) No Other Authorizations. This Amended Settlement Agreement does not authorize the Digitization or any other form of copying, Display Use, Non- Display Use, or any other use of Books and Inserts outside the United States.

Also posted in Article 17, Section 17.7, Section 17.7(a), Section 17.7(a)(i) | Comments closed

S 17.07.1.2

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(ii) Foreign Public Domain Works. Further, with respect to Books thatare not in the public domain under the Copyright Act in the United States, but arein the public domain in any jurisdiction outside the United States, this Amended Settlement Agreement neither authorizes nor prohibits Google from exploiting those Booksin such jurisdiction; provided, however, that, in countries that do not have acopyright law that provides for a copyright term of at least the life of the authorand fifty (50) years after the author’s death for literary works that are notanonymous or pseudonymous where copyright is granted to natural persons, thenGoogle will not treat Books as in the public domain in such jurisdiction.

Also posted in Article 17, Section 17.7, Section 17.7(a), Section 17.7(a)(ii) | Comments closed

S 17.07.1.3

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(iii) Notification of Foreign Use. Google agrees to notify the Registryif and when Google commences any use of Books or (to Google’s knowledge)Inserts outside of the United States that displays Protected material other than material that is allowed to be displayed in Snippet Display.

Also posted in Article 17, Section 17.7, Section 17.7(a), Section 17.7(a)(iii) | Comments closed

S 17.07.2

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(b) Public Domain. Except as specifically set forth in Section 17.7(a)(ii) (Foreign Public Domain Works), nothing herein restricts Google’s use of public domain material, nor are any authorizations given with respect to such material.

Also posted in Article 17, Section 17.07(b), Section 17.7 | Comments closed

S 17.08

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Contact with Rightsholders. Google may contact Rightsholders through the Registry with announcements related to uses of their Books and Inserts authorized by this Amended Settlement Agreement or the Registry, provided that such announcements are no more than quarterly in frequency and provided that any Rightsholder may opt out of receiving such announcements. Google shall notify Rightsholders of the existence of the Registry and the means by which Rightsholders can register and/or submit claims with the Registry, for example, through a link to the Registry on a page soliciting participation in the Google Partner Program, before initiating communication concerning the Settlement with Rightsholders with whom Google is not already in communication.

Also posted in Article 17, Section 17.8 | Comments closed

S 17.09

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Separate Agreements with Amended Settlement Class Members. Google may already have, and may in the future enter into, separate agreements directly with individual members of the Amended Settlement Class regarding their Books, e.g., through the Google Partner Program. Nothing herein restricts or affects Google’s and such members’ right to enter into or maintain such separate agreements; however, except with respect to any member of the Amended Settlement Class with whom Google has such separate agreements as of the Amended Settlement Agreement Date, at the outset of any initial communication with such a member regarding matters under this Amended Settlement Agreement, Google shall inform such member (a) of the reason for the communication, (b) that such member’s interests are affected by the terms of this Amended Settlement Agreement and are represented by the Registry, together with a brief explanation of both, (c) that such member is free to continue to have his, her or its interests so represented, as opposed to dealing directly with Google, and (d) if such member remains interested in dealing directly with Google, Google is prepared to do so. The non-exclusive rights of Google under this Amended Settlement Agreement are in addition to any rights granted to Google by any Rightsholder in any such separate agreement; provided, however, that any specific prohibitions imposed upon Google by aRightsholder in any such other agreement shall apply during the term of such other agreement. In cases in which Google has, on or after the Amended Settlement Agreement Date, a direct agreement with a Rightsholder with respect to that Rightsholder’s Books (through the Google Partner Program or otherwise), then the payments required to be paid to the Registry set forth in Article IV (Economic Terms for Google’s Use of Books) shall not apply to those Books and the payments set forth in the applicable direct agreement will apply; provided, however, that Google shall comply with the procedures in Section 3.5(c) (Take-Down or Transfer Requests).

Also posted in Article 17, Section 17.9 | Comments closed

S 17.10

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Scan Quality. Google will strive to detect and eliminate errors in the Digitization quality or Metadata. Google makes no guarantees, however, regarding the Digitization quality or Metadata quality of any Book or Insert and, accordingly, Google will not be deemed in breach of the authorizations under this Amended Settlement Agreement due to omissions of text that may occur unintentionally due to technical limitations.

Also posted in Article 17, Section 17.10 | Comments closed

S 17.11

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Use of Contractors. If and to the extent that Google uses third parties to exercise its rights, including to Digitize Books or Inserts, or to perform any of its obligations, as set forth in this Amended Settlement Agreement, Google shall, at all times, be and remain responsible for ensuring that such parties act in accordance with Google’s obligations under this Amended Settlement Agreement. Google shall be liable for any such third party’s nonconformance with or breach of this Amended Settlement Agreement, and such breaches shall be regarded as breaches by Google for purposes of Article VIII (Security and Breach).

Also posted in Article 17, Section 17.11 | Comments closed

S 17.12

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Effect of Right to Exclude. Google shall not base its determination of whether to sell a Book through Consumer Purchase or Institutional Subscriptions solely on the decision of the Rightsholder to exclude that Book from a particular Display Use, unless Google demonstrates that its inability to make Preview Use or Snippet Display, as applicable, results in economic harm to Google in selling that Book or that type of Book. In the event that Google makes a determination not to sell through Consumer Purchase orInstitutional Subscription a Book that the Rightsholder has excluded from Preview Use or Snippet Display, then Google will notify the Registry thereof and will state its reasons for that determination and, if the determination was based on the decision of the Rightsholder to exclude the Book from Preview Use or Snippet Display, Google will, with such notice, provide the Registry with data and information demonstrating that Google’s inability to make Preview Use or Snippet Display, as applicable, results in economic harm to Google in selling that Book or that type of Book. All disputes under this provision shall be resolved pursuant to Article IX (Dispute Resolution); provided, however, that until theArbitrator renders a Decision in favor of Google, Google shall not refrain from selling such Book through Consumer Purchase or Institutional Subscriptions.

Also posted in Article 17, Section 17.12 | Comments closed

S 17.13

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Patent Indemnity. Google, at its own expense, shall defend or, at its option settle, any claim, suit or proceeding brought against the Registry or its directors, officers, employees and agents by a third party arising out of a claim that Google’s Digitization of Books or Inserts, Google’s use of Books or Inserts in Google Products and Services under this Amended Settlement Agreement or any other acts of Google undertaken pursuant to or in furtherance of this Amended Settlement Agreement infringe any such third party’s United States patents, or that the Registry induced any such infringement. Google shall indemnify and hold harmless the Registry and any and all of its directors, officers, employees and agents from any liabilities, damages and costs awarded in any such claim,suit or proceeding or agreed to by Google in settlement thereof, or otherwise incurred by Google or by the Registry at Google’s direction in connection therewith. The foregoing obligations are subject to the Registry providing Google with: (a) prompt written notice of such claim, suit or proceeding, (b) exclusive control over the defense and settlement of such claim, suit or proceeding and (c) proper and full information and assistance, at Google’s expense, to settle or defend any such claim, suit or proceeding. Notwithstanding the foregoing, in no event shall Google have any obligations or liability under this Section 17.13 (Patent Indemnity) to the extent that any such claim, suit or proceeding arises out of any content, information or data provided to Google by the Registry or any Rightsholder. The Registry may, at its own expense, assist in the defense of any claim, suit or proceeding for which Google indemnifies the Registry under this Section 17.13 (Patent Indemnity) if the Registry so chooses.

Also posted in Article 17, Section 17.13 | Comments closed

S 17.14

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No Liability for Consequential Damages. In no event will Google, a Fully Participating Library, a Cooperating Library, Plaintiffs, Class Counsel, or the Registry be liable for lost profits or any form of indirect, special, incidental, consequential or punitive damages of any character from any claims arising out of this Amended Settlement Agreement, whether based on breach of contract (including breach of the Security Standard or any Security Implementation Plan), tort (including negligence), or otherwise, and whether or not Google, a Fully Participating Library, a Cooperating Library, Plaintiffs, Class Counsel or the Registry has been advised of the possibility of such damage.

Also posted in Article 17, Section 17.14 | Comments closed

S 17.15

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Notices.

Also posted in Article 17, Section 17.15 | Comments closed

S 17.15.1

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(a) Legal Notices. All notices and demands concerning (i) any breach oralleged breach of this Amended Settlement Agreement, (ii) any dispute under this Amended Settlement Agreement, (iii) any exercise of audit rights under this Amended Settlement Agreement, (iv) pricing of Institutional Subscriptions, Consumer Purchases, additional Public Access Service and other Revenue Models under this Amended Settlement Agreement, (v) payment of any amounts under any provision of this Amended Settlement Agreement, (vi) any Alternative Accommodated Service Provider, (vii) any Third-Party Required Library Services Provider, and (viii) any matter under Articles XI (Preliminary Settlement Approval), XII (Class Notice Program), XIII (Settlement Administration Program), andXIV (Final Fairness Hearing), and XVI (Right to Terminate Agreement) and Section 17.6 (Reimbursement if terminated) shall be sent (1) before the Effective Date, to counsel for the Author Sub-Class, counsel for the Publisher Sub-Class, and Google’s General Counsel, and (2) after the Effective Date, to the chief executive officer of the Registry and Google’s General Counsel.

Also posted in Article 17, Section 17.15, Section 17.15(a) | Comments closed

S 17.15.2

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(b) Other Notices. All other notices, demands, and requests for which the recipient is not specified in this Amended Settlement Agreement shall be sent (i) before theEffective Date, to counsel for the Author Sub-Class, counsel for the Publisher Sub-Class, and Google’s General Counsel, and (ii) after the Effective Date, to Google’s Vice President, Content Partnerships and, until such time as the Registry designates other counsel, to counsel for the Author Sub-Class and counsel for the Publisher Sub-Class.

Also posted in Article 17, Section 17.15, Section 17.15(b) | Comments closed

S 17.15.3

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(c) Delivery. All notices, demands and requests as specified herein shall be in writing and shall be sent by e-mail (if practicable) and either by overnight courier or by such other delivery methods as provide the sender with proof of the recipient’s receipt and actual notice or, alternatively, with respect to notices under Section 17.15(b (Other Notices) only, through a mode of electronic communication agreed between Google and the Registry. Notice shall be deemed received upon written verification from overnight courier or such other delivery methods of the recipient’s receipt. Contact information shall be updated in writing as necessary to ensure that each such party has current information regarding all such contacts. In no event shall the time period for taking any action under this Amended Settlement Agreement be extended by reason of Rule 6(d) of the Federal Rules of Civil Procedure.

Also posted in Article 17, Section 17.15, Section 17.15(c) | Comments closed

S 17.16

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Time Periods. All time periods set forth herein shall be computed in calendar days unless otherwise provided. In computing any period of time prescribed or allowed by this Amended Settlement Agreement or by order of the Court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be so included, unless it is a Saturday, Sunday or otherwise not a Business Day, or, when the act to be done is the filing of a paper in Court, a day on which weather or other conditions have made the office of the Clerk of the Court inaccessible, in which event the period shall run until the end of the next day that is not one of the aforementioned days.

Also posted in Article 17, Section 17.16 | Comments closed

S 17.17

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Public Statements. Any party may make public statements about the Action, the Settlement and this Amended Settlement Agreement, including statements to the press, subject to the limitations regarding confidentiality set forth in Article XV (Confidentiality).

Also posted in Article 17, Section 17.17 | Comments closed

S 17.18

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Tax Consequences. No opinion or advice concerning the tax consequences of this Amended Settlement Agreement to individual members of the Amended Settlement Class is being given or will be given by Class Counsel. No representation or warranty in such regard is made by virtue of this Amended Settlement Agreement. The Notice will direct members of the Amended Settlement Class to consult their own tax advisors regarding the tax consequences of the Settlement and any tax reporting obligations they may have with respect thereto. Each such member’s tax obligations, and the determination thereof, are the sole responsibility of such member, and it is understood that the tax consequencesmay vary depending on the particular circumstances of each individual member of the Amended Settlement Class.

Also posted in Article 17, Section 17.18 | Comments closed

S 17.19

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Destruction. Within thirty (30) days after the Effective Date, counsel for the Author Sub-Class, counsel for the Publisher Sub-Class and counsel for Google will destroy all copies of, and erase from computer memory, all documents produced to them pursuant to the Action, except for documents that the producing party agrees in writing are necessary for the Registry and/or the claims administration process. Counsel for the Author Sub-Class and counsel for the Publisher Sub-Class will notify Google, and Google will notify counsel for the Author Sub-Class class and Counsel for the Publisher Sub-Class, that such destruction has occurred.

Also posted in Article 17, Section 17.19 | Comments closed

S 17.20

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Attachments. All of the Attachments to this Amended Settlement Agreement are material and integral parts hereof, and are incorporated in this Amended Settlement Agreement by reference herein.

Also posted in Article 17, Section 17.20 | Comments closed

S 17.21

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No Other Representations. Other than as set forth in this Amended Settlement Agreement, the Supplemental Agreement Regarding Right to Terminate, and the separate settlement agreement Amended Settlement Agreement between the Representative Plaintiffs that represent the Publisher Sub-Class and Google in The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (JESDS) (which settlement agreementAmended Settlement Agreement is attached hereto as Attachment M (Amended Settlement Agreement Between Publishers and Google)), no party to this Amended Settlement Agreement has relied on any representation of another party in entering into this Amended Settlement Agreement.

Also posted in Article 17, Section 17.21 | Comments closed

S 17.22

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Governing Law. This Amended Settlement Agreement, including the Author-Publisher Procedures, shall be governed by and construed in accordance with the laws of the State of New York, without reference to principles of conflicts of laws.

Also posted in Article 17, Section 17.22 | Comments closed

S 17.23

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Court’s Continuing Jurisdiction. The Court shall retain jurisdiction over the interpretation and implementation of this Amended Settlement Agreement. Except as provided in Article IX (Dispute Resolution), any claims, disputes or actions arising under or to enforce this Amended Settlement Agreement shall be commenced and maintained only in the Court.

Also posted in Article 17, Section 17.23 | Comments closed

S 17.24