Category Archives: Article 04

S 04

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

Also posted in Settlement | Comments closed

S 04.1

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Institutional Subscriptions.

Also posted in Section 4.1, Settlement | Comments closed

S 04.1.1

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(a) General Guidelines for Pricing of Institutional Subscriptions.

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

S 04.1.1.1

One response to “S 04.1.1.1”

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

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

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

S 04.1.1.2

2 responses to “S 04.1.1.2”

  1. Deven Desai says:

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

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

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

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

  2. Deven Desai says:

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

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

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

S 04.1.1.3

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

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

S 04.1.1.4

Comments are closed.

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

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

S 04.1.1.4.1

5 responses to “S 04.1.1.4.1”

  1. Deven Desai says:

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

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

  3. Deven Desai says:

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

  4. Deven Desai says:

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

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

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

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

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

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

S 04.1.1.4.2

Comments are closed.

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

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

S 04.1.1.4.3

6 responses to “S 04.1.1.4.3”

  1. Deven Desai says:

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

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

  3. Deven Desai says:

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

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

  5. benjamin says:

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

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

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

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

S 04.1.1.4.4

One response to “S 04.1.1.4.4”

  1. Deven Desai says:

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

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

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

S 04.1.1.4.5

2 responses to “S 04.1.1.4.5”

  1. Deven Desai says:

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

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

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

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

S 04.1.1.4.6

4 responses to “S 04.1.1.4.6”

  1. Deven Desai says:

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

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

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

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

  3. Deven Desai says:

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

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

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

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

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

S 04.1.1.5

Comments are closed.

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

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

S 04.1.1.6

Comments are closed.

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

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

S 04.1.1.6.1

Comments are closed.

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

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

S 04.1.1.6.1.1

Comments are closed.

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

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

S 04.1.1.6.1.2

Comments are closed.

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

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

S 04.1.1.6.1.3

Comments are closed.

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

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

S 04.1.1.6.1.4

Comments are closed.

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

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

S 04.1.1.6.1.5

Comments are closed.

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

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

S 04.1.1.6.1.6

Comments are closed.

f) The Price Change Cut Off Date.

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

S 04.1.1.6.2

Comments are closed.

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

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

S 04.1.1.6.3

Comments are closed.

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

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

S 04.1.1.6.4

Comments are closed.

(4) Process.

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

S 04.1.1.6.4.1

Comments are closed.

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

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

S 04.1.1.6.4.2

Comments are closed.

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

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

S 04.1.1.7

Comments are closed.

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

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(vii), Settlement | Comments closed

S 04.1.1.8

Comments are closed.

(viii) Adjustments to Pricing Strategy.

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(viii), Settlement | Comments closed

S 04.1.1.8.1

Comments are closed.

(1) Google Proposed Adjustments. Google may propose adjustments to the then-current agreed upon Pricing Strategy. If Google and the Registry cannot agree to a change to the Pricing Strategy after negotiating for a period of sixty (60) days after Google’s notice of its proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision; provided, however, that Google and the Registry may agree, or an Arbitrator pursuant to Article IX (Dispute Resolution) may require, that the new pricing be retroactive to sixty (60) days after the date of Google’s notice of adjustments to the then-current agreed upon Pricing Strategy.

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(viii), Section 4.1(a)(viii)(1), Settlement | Comments closed

S 04.1.1.8.2

Comments are closed.

(2) Registry Proposed Adjustments. The Registry may propose adjustments to the then-current agreed upon Pricing Strategy. If Google and the Registry cannot agree to a change to the Pricing Strategy after negotiating for a period of sixty (60) days after the Registry’s notice of its proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision. If the renegotiation of the Pricing Strategy concludes, or if the Arbitrator renders a Decision, prior to the Price Change Cut Off Date, then any increase in the price resulting from the renegotiation or Decision will take effect for the academic year first starting after the Price Change Cut Off Date. If the renegotiation of the Pricing Strategy concludes, or if the Arbitrator renders a Decision, on or after the Price Change Cut Off Date, then any price increase will take effect not for the academic year first starting after the Price Change Cut Off Date, but in the next following academic year. In addition, any price increase will not apply to any then-existing subscriber contracts until they are renewed or extended. “Price Change Cut Off Date” means a date that is prior to the commencement of the academic year first starting after such date and that is set to provide Google with a reasonable period of time within which to sell the Institutional Subscription for that academic year without an intervening price increase for Institutional Subscriptions, which period of time reasonably approximates the typical sales cycle for comparable products and services.

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(viii), Section 4.1(a)(viii)(2), Settlement | Comments closed

S 04.1.1.9

Comments are closed.

(ix) Adjunct Products. Google will inform the Registry of any Google Products and Services that Google offers for a fee as an adjunct to any Institutional Subscription or (if Google and the Registry agree to offer Consumer Subscriptions) Consumer Subscription, which product or service meets the following conditions:

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(ix), Settlement | Comments closed

S 04.1.1.9.1

Comments are closed.

(1) the preponderance of the value of such product or service tousers of the subscription is realized through access to Books through suchsubscription, and

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(ix), Section 4.1(a)(ix)(1), Settlement | Comments closed

S 04.1.1.9.2

Comments are closed.

(2) such product or service exploits access to Books by users of the subscription in a manner that could not, with similar efforts, be similarly exploited by other entities ((1) and (2) together, an “Adjunct Product”).

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(ix), Section 4.1(a)(ix)(2), Settlement | Comments closed

S 04.1.1.9.3

Comments are closed.

(3) The Registry will have the right immediately to renegotiate and, if necessary, resolve pursuant to Article IX (Dispute Resolution), with Google the prices of the applicable Institutional Subscription(s) or Consumer Subscription(s) with which such Adjunct Product is used under the procedures set forth in Section 4.1(a)(viii) (Adjustments to Pricing Strategy), which revised prices will apply prospectively only. Google, at its sole discretion, may choose to remove access to Books as part of the Adjunct Product or modify the Adjunct Product in a manner that ensures that conditions in clauses (1) and (2) above are no longer met if Google wishes to avoid the Registry’s option of renegotiating or resolving pursuant to Article IX (Dispute Resolution). Renegotiation and resolution pursuant to Article IX (Dispute Resolution), as set forth in this Section4.1(a)(ix) (Adjunct Products), shall be the Registry’s sole remedy and Google’s sole obligation for disputes under this Section 4.1(a)(ix) (Adjunct Products).

Also posted in Section 4.1, Section 4.1(a), Section 4.1(a)(ix), Section 4.1(a)(ix)(3), Settlement | Comments closed

S 04.1.2

Comments are closed.

(b) Institutional Consortia. Google may work through Institutional Consortia to sell Institutional Subscriptions.

Also posted in Section 4.1, Section 4.1(b), Settlement | Comments closed

S 04.1.3

Comments are closed.

(c) Intermediaries. Google may work through intermediaries to sell Institutional Subscriptions, subject to Registry approval, which approval shall not be unreasonably withheld or delayed.

Also posted in Section 4.1, Section 4.1(c), Settlement | Comments closed

S 04.1.4

One response to “S 04.1.4”

  1. Deven Desai says:

    So I know others have mentioned privacy concerns, but this clause seems to raise them starkly. Insofar as people have fought to allow libraries not to track what one reads, this system seems to require tracking of precisely who reads what. If people are using this system as a library (which is in fact part of the idea), then this provision seems to require further thought.

(d) Basic Features of Institutional Subscriptions. Institutional Subscriptions will enable users to view, copy/paste, and print pages of a Book, and may enable Book Annotations. With respect to copy/paste, the user will not be able to select, copy and paste more than four (4) pages of the content of a Display Book with a single copy/paste command. Printing will be on a page-by-page basis or a page range basis, but the user will not be able to select a page range that is greater than twenty (20) pages with one print command for printing. Google will include a visible watermark on pages printed from the Institutional Subscription Database, which identifies the material as copyrighted and displays encrypted session identifying information provided by the subscribing institution during such session, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed. Such watermark will not obscure the content of the printed pages.

Also posted in Section 4.1, Section 4.1(d), Settlement | Comments closed

S 04.1.5

2 responses to “S 04.1.5”

  1. Deven Desai says:

    (4) not prohibit any uses of Books or Inserts that would otherwise be permitted under the Copyright Act without the need for express authorization from the Rightsholder

    This clause seems to be a nod to fair use, but I wonder if it has any teeth. Given the literature about fair use’s problems as a doctrine, I am not certain this clause does much work. Still, it at least appears to acknowledge the idea of copyright law’s role in some of this deal.

    (5) include the right for Google to restrict or terminate a user’s account, including additional restrictions on printing and copy/paste, if the user distributes the copyrighted material from a Book in a manner that is prohibited by the terms and conditions or applicable law

    This clause seems to reinvent notice and take down problems that occur under the DMCA. It further raises the complication that one has to check with the contract and the copyright law to see what one can do with the book. The literature about the pros and cons of contract as way to govern copyrighted material seems to be required here.

  2. I think this is more of a three-strikes-you’re out problem than a notice-and-takedown problem.

(e) Institutional Subscription Terms and Conditions. In its terms and conditions applicable to Institutional Subscriptions, (i) Google will (1) limit access to Books to appropriate individuals within the subscriber institution (e.g., in the case of educational institutions, faculty, students, researchers, staff members, librarians, personnel and business invitees of the subscriber and walk-in users from the general public; in the case of corporate or government offices, personnel and business invitees; and, in the case of Public Libraries, library patrons and personnel), (2) permit users to view, copy/paste, and print pages of Books only to the extent authorized under this Amended Settlement Agreement, (3) permit users to make available the Books and Inserts in the Institutional Subscription Database to other users of that Institutional Subscription through hyperlinks, or similar or appropriate technology, when such Books and Inserts are served by Google, for course use (e.g., e-reserves and course management systems), only to the extent authorized under this Amended Settlement Agreement, (4) not prohibit any uses of Books or Inserts that would otherwise be permitted under the Copyright Act without the need for express authorization from the Rightsholder, and (5) include the right for Google to restrict or terminate a user’s account, including additional restrictions on printing and copy/paste, if the user distributes the copyrighted material from a Book in a manner that is prohibited by the terms and conditions or applicable law, and (ii) Google may enable Book Annotations. Prior to Google’s initial launch of the Institutional Subscription, Google will provide to the Registry a copy of the terms and conditions applicable to any Institutional Subscriptions offered by Google.

Also posted in Section 4.1, Section 4.1(e), Settlement | Comments closed

S 04.1.6

2 responses to “S 04.1.6”

  1. Deven Desai says:

    Time limits on the access pose interesting issues. Unlike JSTOR, Lexis, and Westlaw, where one can obtain a personal use copy of the work and use it when away from an authorized terminal or account, this system (I think) does not allow such downloads or uses. So one is now in a world of pay-to-read or perpetual licensing for content, correct? The answer may be that one has to buy the book to be able to use it more robustly. Yet, given the annotation functions that may occur (and need to be examined) it seems that like Kindle criticisms, this system allows someone to be cut-off from works and perhaps lose one’s personal notes that are connected to the works (i.e., when one loses access to the work, one also loses access to one’s annotations).

  2. We are in such a world, yes. The settlement does leave open New Revenue Models: print-on-demand, in particular, creates explicitly non-time-limited possibilities. But that’s not activated by default.

(f) Subscriber Experience. The experience and rights provided to subscribers and their users under Institutional Subscriptions will be no less favorable to them than the experience and rights offered in the Consumer Purchase, except that such experience and rights will be time-limited to the duration of the Institutional Subscription. In addition, and without limiting the foregoing, Institutional Subscriptions must permit searching the full text of Books in the Institutional Subscription Database and, in the case of Higher Education Institutions, permit users to make available the Books and Inserts in the Institutional Subscription Database to other users of the Institutional Subscription through hyperlinks, or similar or appropriate technology, as described in Section 4.1(e) (Institutional Subscription Terms and Conditions).

Also posted in Section 4.1, Section 4.1(f), Settlement | Comments closed

S 04.1.7

Comments are closed.

(g) Beta Testing. Google may provide Institutional Subscriptions to a limited number of institutions as a beta product free of charge prior to the initial launch. Unless otherwise agreed by the Registry, Google shall be authorized to offer Institutional Subscriptions in beta form to up to five (5) Fully Participating Libraries and Cooperating Libraries, up to two (2) Public Libraries, up to two (2) not-for-profit institutions within each of the Carnegie Classifications for Institutions of Higher Education within the United States and, as agreed between Google and the Registry, other libraries. At least one institution from each such category of institutions shall be included in the beta-test group. Google shall provide to the Registry all pricing-related data collected from these beta-test partners to assist in the pricing for the versions of the Institutional Subscriptions. Once the beta Institutional Subscription is launched, Google shall be able to continue to support then-existing beta customers until the earlier of (i) two (2) years from the launch of the beta product (unless a longer period of time is agreed by the Registry) or (ii) launch of the Institutional Subscription.

Also posted in Section 4.1, Section 4.1(g), Settlement | Comments closed

S 04.2

Comments are closed.

Consumer Purchases.

Also posted in Section 4.2, Settlement | Comments closed

S 04.2.1

4 responses to “S 04.2.1”

  1. Gillian Spraggs says:

    ‘Consumer Purchase will enable purchasers to view … print pages of a Book’

    Google has clarified that in these circumstances the book will not be downloadable; it will be held on a server, ‘in the cloud’.

    This provision is evidently intended to reassure rights-holders that their works will be safe from being pirated. In fact, it offers virtually no protection. Anyone who doesn’t believe me should investigate the use of the PrintScr key on their keyboard, and of readily available (and perfectly legal) screen capture software.

  2. You don’t even need print-screen; Google has been strongly hiting that you just need to copy-and-paste in four-page increments. There won’t be an overall limit, so far as I’ve heard. I’ve heard the four- and twenty-page limits described as speed bumps, rather than an attempt at a fully secure system.

  3. Gillian Spraggs says:

    Google has been strongly hinting that you just need to copy-and-paste in four-page increments<\i>

    That’s very interesting. Can you point to a specific statement from the company that would support that? I’d rather taken it that the four pages was an absolute limit per work.

    One of the things that seems apparent is that Google in its public statements is trying to address (at least) two different constituencies, with widely differing, indeed, opposed interests: readers who are hoping for wider access to books at low (or no) cost and the copyright maximalists and protectionists among the publishers and authors. (Its own interests are not necessarily the same as those of either group.)

  4. Gillian Spraggs says:

    “speed bumps”: I see that a statement to that effect, and in very much those terms, was given to Claude Almansi by the counsel for the authors. Thank you; this is a useful reference.

(a) Basic Features of Consumer Purchase. Consumer Purchase will enable purchasers to view, copy/paste and print pages of a Book, and may enable Book Annotations. With respect to copy/paste, the user will not be able to select, copy and paste more than four (4) pages of the content of a Display Book with a single copy/paste command. Printing will be on a page-by-page basis or a page range basis, but the user will not be able to select a page range that is greater than twenty (20) pages with one print command for printing. Google will include a visible watermark on pages printed from the Consumer Purchase, which identifies the material as copyrighted and displays encrypted session identifying information, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed. Such watermark will not obscure the content of the printed pages.

Also posted in Section 4.2, Section 4.2(a), Settlement | Comments closed

S 04.2.1.1

Comments are closed.

(i) Alternative License Terms. In lieu of the basic features of Consumer Purchase set forth in Section 4.2(a) (Basic Features of Consumer Purchase), a Rightsholder may direct the Registry to make its Books available at no charge pursuant to one of several standard licenses or similar contractual permissions for use authorized by the Registry under which owners of works make their works available (e.g., Creative Commons Licenses), in which case such Books may be made available without the restrictions of such Section.

Also posted in Section 4.2, Section 4.2(a), Section 4.2(a)(i), Settlement | Comments closed

S 04.2.2

Comments are closed.

(b) Pricing Options.

Also posted in Section 4.2, Section 4.2(b), Settlement | Comments closed

S 04.2.2.1

Comments are closed.

(i) Pricing of Consumer Purchases. A Rightsholder may select one of two pricing options for Consumer Purchases:

Also posted in Section 4.2, Section 4.2(b), Section 4.2(b)(i), Settlement | Comments closed

S 04.2.2.1.1

Comments are closed.

(1) Specified Price. In this option, the Rightsholder identifies the price (which may be as low as $0.00) for which it wants its Book authorized for Consumer Purchase to be sold. This pricing option is referred to in this Amended Settlement Agreement as the “Specified Price.” The Specified Price may only be changed by the Rightsholder and is not subject to Article IX (Dispute Resolution).

Also posted in Section 4.2, Section 4.2(b)(i), Section 4.2(b)(i)(1), Settlement | Comments closed

S 04.2.2.1.2

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(2) Settlement Controlled Price. In this option, the Rightsholder permits the price for which its Book authorized for Consumer Purchase is to be sold to be determined by an algorithm (the “Pricing Algorithm”) that Google will design to find the optimal such price for each such Book and, accordingly, in order to maximize revenue for each Rightsholder revenues for the Rightsholder for such Book and without regard to changes to the price of any other Book (but Google may use historical price data of other Books in designing the Pricing Algorithm). This pricing plan is referred to in this Amended Settlement Agreement as the “Settlement Controlled Price,” and is governed by the provisions in Section 4.2(c) (Settlement Controlled Pricing).

Also posted in Section 4.2, Section 4.2(b), Section 4.2(b)(i), Section 4.2(b)(i)(2), Settlement | Comments closed

S 04.2.2.2

Comments are closed.

(ii) Change of Pricing Option. At any time, the Rightsholder of a Book may switch between the Specified Price and Settlement Controlled Price upon seven (7) days’ prior notice to Google or the Registry.

Also posted in Section 4.2, Section 4.2(b), Section 4.2(b)(ii), Settlement | Comments closed

S 04.2.2.3

Comments are closed.

(iii) Default Pricing Option. If the Rightsholder of a Book has not specifically directed that its Book be sold at a Specified Price, then Consumer Purchase of that Book will be sold at the Settlement Controlled Price.

Also posted in Section 4.2, Section 4.2(b), Section 4.2(b)(iii), Settlement | Comments closed

S 04.2.3

Comments are closed.

(c) Settlement Controlled Pricing.

Also posted in Section 4.2, Section 4.2(c), Settlement | Comments closed

S 04.2.3.1

Comments are closed.

(i) Pricing Bins. For Books that will be sold at the Settlement Controlled Price, Google and the Registry will agree upon use a set of pre-defined prices for Books (“Pricing Bins”), and each Book will be priced at one of those prices. The initial Pricing Bins for Books will be: $1.99, $2.99, $3.99, $4.99, $5.99, $6.99, $7.99, $8.99, $9.99, $14.99, $19.99 and $29.99. Google and the Registry may agree to establish additional or different Pricing Bins between, below and above these prices at any time; provided, however that (a) the Unclaimed Works Fiduciary has the right to approve the use of such additional or different Pricing Bins for unclaimed Books and (b) the use of such additional or different Pricing Bins for a Registered Rightsholder’s Books is subject to thirty (30) days’ prior notice to such Rightsholder. At any time, the Rightsholder of a Book may specify a maximum and/or a minimum Pricing Bin for its Book and Google will implement such specification within seven (7) days after Google receives notice thereof. In any event, either Google or the Registry has the option to require renegotiation of the number of Pricing Bins or the prices of the Pricing Bins at the end of the three (3)-year period commencing with the Effective Date, and every four (4) years thereafter. Google or the Registry shall give the other party notice at least ninety (90) days prior to the end of the then-current three (3)-or four (4)-year period, as applicable, of its exercise of its option to renegotiate. Such ninety (90)-day period may be extended by mutual written agreement of Google and the Registry. In the event that Google and the Registry cannot agree on changes to the number of Pricing Bins or the prices for each Pricing Bin, as applicable, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). In the event of such a dispute, the then-current number of Pricing Bins and the prices for each Pricing Bin will continue to apply unless and until the earlier of (1) Google and the Registry agreeing to such changes or (2) the Arbitrator rendering a Decision.

Also posted in Section 4.2(c), Section 4.2(c)(i), Settlement | Comments closed

S 04.2.3.2

Comments are closed.

(ii) Pricing and Distribution of Books Into Pricing Bins.

Also posted in Section 4.2, Section 4.2(c), Section 4.2(c)(ii), Settlement | Comments closed

S 04.2.3.2.1

Comments are closed.

(1) Initial Pricing Bin Distribution. The initial distribution percentages of Settlement Controlled Price Books that Google offers for Consumer Purchase in the Pricing Bins will be: 5% ($1.99), 10% ($2.99), 13% ($3.99), 13% ($4.99), 10% ($5.99), 8% ($6.99), 6% ($7.99), 5% ($8.99), 11% ($9.99), 8% ($14.99), 6% ($19.99) and 5% ($29.99).

Also posted in Section 4.2, Section 4.2(c), Section 4.2(c)(ii), Section 4.2(c)(ii)(1), Settlement | Comments closed

S 04.2.3.2.2

Comments are closed.

(2) Development of Pricing Algorithm and Changes to Pricing Bin Distribution. Google will develop the Pricing Algorithm and unilaterally, with no involvement of or control by the Registry or any Rightsholder; provided, however, that Google employees and contractors who may be Rightsholders are not precluded from performing their assigned duties with respect to development of the Pricing Algorithm. In developing the Pricing Algorithm, Google will analyze sales data to ensure the reasonableness of the Pricing Algorithm. The Pricing Algorithm shall base the Settlement Controlled Price of a Book, on an individual Book by Book basis, upon aggregate data collected with respect to Books that are similar to such Book and will be designed to operate in a manner that simulates how an individual Book would be priced by a Rightsholder of that Book acting in a manner to optimize revenues in respect of such Book in a competitive market, that is, assuming no change in the price of any other Book. Based on the Pricing Algorithm, Google may change the price of an individual Book over time in response to sales data and in order to collect additional data to establish the optimal price for such Book. The distribution of Books sold on the basis of Settlement Controlled Prices among the Pricing Bins may change over time as the prices of individual Books are adjusted based on the Pricing Algorithm.

Also posted in Section 4.2(c), Section 4.2(c)(ii), Section 4.2(c)(ii)(2), Settlement | Comments closed

S 04.2.3.2.3

Comments are closed.

(3) Validation of Pricing Algorithm. The Registry has the right to validate, through the use of a reasonable number of third-party experts, the reasonableness of the Pricing Algorithm and to verify that the conclusions it the Pricing Algorithm produces are statistically valid; provided that (a) Google has no obligation to disclose the Pricing Algorithm or any other Confidential Information of Google to the Registry or any third-party experts retained by the Registry, except as necessary for the Registry’s experts to validate the reasonableness of the Pricing Algorithm and to verify its conclusions, (b) Google will not be required to disclose Confidential Information of Google not originally developed for the Pricing Algorithm, (c) Google may not rely on or introduce into evidence any such non-disclosed Confidential Information in any arbitration pursuant to Article IX (Dispute Resolution) regarding the reasonableness of the Pricing Algorithm, and (d) Google bears the burden of proving that the Pricing Algorithm is reasonable. The Registry’s experts’ receipt of any Confidential Information of Google related to the Pricing Algorithm will be subject to strict non-disclosure agreements, provided that such experts may disclose their conclusions to the Registry and the Registry may disclose their conclusions to Rightsholders.

Also posted in Section 4.2, Section 4.2(c), Section 4.2(c)(ii), Section 4.2(c)(ii)(3), Settlement | Comments closed

S 04.2.3.2.4

Comments are closed.

(4) Disputes. Disputes regarding the Pricing Algorithm or its application shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Section 4.2, Section 4.2(c), Section 4.2(c)(ii), Section 4.2(c)(ii)(4), Settlement | Comments closed

S 04.2.3.3

Comments are closed.

(iii) Provision of Settlement Controlled Prices to Registry. Google shall determine and provide to the Registry both the Settlement Controlled Price for all Settlement Controlled Price Books and what would be the Settlement Controlled Price for every Specified Price Book, as if the Rightsholder of such Specified Price Book had selected the Settlement Controlled Price option. Such information is the Confidential Information of Google. Subject to Section 15.4 (Disclosures Required by Law), the Registry shall not disclose the Settlement Controlled Price for any Book to any Person other than the Rightsholders of such Book and, if the price of a Book is publicly available, the Registry shall not disclose whether that price is the Settlement Controlled Price.

Also posted in Section 4.2(c), Section 4.2(c)(iii), Settlement | Comments closed

S 04.3

Comments are closed.

Preview Uses.

Also posted in Section 4.3, Settlement | Comments closed

S 04.3.1

Comments are closed.

(a) Preview Use Permitted. Google may offer a free Preview Use to allow users to sample a Book prior to making a purchase decision, unless a Rightsholder of a Book directs Google or the Registry not to allow Preview Use of that Book.

Also posted in Section 4.3, Section 4.3(a), Settlement | Comments closed

S 04.3.2

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(b) Default Settings for Preview Use. The default settings for Preview Use will be as follows:

Also posted in Section 4.3, Section 4.3(b), Settlement | Comments closed

S 04.3.2.1

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(i) Standard Preview. Except as set forth below in this Section 4.3(b) (Default Settings for Preview Use), the default Preview Use is Standard Preview.

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(i), Settlement | Comments closed

S 04.3.2.1.1

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(1) Standard Preview. “Standard Preview” means that Google may display (in addition to the table of contents, title page, copyright page and other pages that appear prior to the table of contents, and the index) up to twenty percent (20%) of the pages of a Book to a user but no more than five (5) adjacent pages at a time (i.e., when a user lands on a given page from a search or navigation, the user will be limited to viewing no more than four (4) additional adjacent pages at a time), before or after which no fewer than two (2) pages are blocked; provided that, for Fiction, Google will block the final five percent (5%) of the Book’s pages (or a minimum of the final fifteen (15) pages in the Book). In addition, “Standard Preview” for Fiction means that, at Google’s option, Google may display up to twenty percent (20%) of the pages of a Book to a user, subject to the following: (i) Google may display up to five percent (5%) of a Fiction Book, or fifteen (15) pages, whichever is less, adjacent to where a user lands on a given page from a search or navigation and (ii) Google will block the final five percent (5%) of the Book’s pages (or a minimum of the final fifteen (15) pages in the Book). As used in this Section 4.3(b)(i)(1) (Standard Preview), “Fiction” means Books associated with BISAC codes for Fiction, Juvenile Fiction, Comics & Graphic Novels, Drama, Humor, Literary Collections and Poetry, and, for any Books that do not have a BISAC code, any Books comprising works of imaginative narration. If the Registry disagrees with Google’s categorization of a Book as Fiction, the Registry may notify Google and if Google and the Registry do not agree on whether a Book is Fiction, the dispute shall be resolved pursuant to Article IX (Dispute Resolution). If Google and the Registry determine, or if an Arbitrator decides, that a Book was mistakenly categorized to be Fiction or non-Fiction, then Google promptly shall change the categorization of the Book after the determination or decision, and such change, if made, shall be the Rightsholder’s and the Registry’s sole remedy and Google’s sole obligation for such mistaken categorization.

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(i), Section 4.3(b)(i)(1), Settlement | Comments closed

S 04.3.2.1.2

Comments are closed.

(2) Adjustments to Percentages. Rightsholders may increase the percentages in Fixed Preview, Standard Preview and Continuous Preview.

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(i), Section 4.3(b)(i)(2), Settlement | Comments closed

S 04.3.2.1.3

Comments are closed.

(3) No Copy/Paste, Print or Book Annotations. Unless approved by the Registry or the Rightsholder, Google will not offer to users copy/paste, print or Book Annotation functionalities as part of Preview Uses.

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(i), Section 4.3(b)(i)(3), Settlement | Comments closed

S 04.3.2.2

Comments are closed.

(ii) No Preview. The default setting for the categories of Books listed on Attachment F (Preview Uses) under the heading “No Preview” is no Preview Use (“No Preview”).

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(ii), Settlement | Comments closed

S 04.3.2.3

Comments are closed.

(iii) Fixed Preview. The default setting for the categories of Books listed on Attachment F (Preview Uses) under the heading “Fixed Preview” is Fixed Preview. “Fixed Preview” means that Google may display (in addition to the table of contents, title page, copyright page and other pages that appear prior to the table of contents, and the index) up to ten percent (10%) of the pages of a Book to a user and such pages are fixed (i.e., they do not vary from user to user or depend on a user’s search). Google will choose the pages displayed in Fixed Preview unless the Registry develops a mechanism to identify for Google particular pages selected by the Rightsholder, in which case the pages will be those chosen by the Rightsholder.

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(iii), Settlement | Comments closed

S 04.3.2.4

Comments are closed.

(iv) Determination of Categories. Google shall use BISAC codes or an equivalent classification scheme in order to determine whether a Book is in a category listed on Attachment F (Preview Uses). Google shall not be responsible for errors in its determination of whether a Book is in a particular category listed on Attachment F (Preview Uses). Upon notification by the Registry or the Rightsholder that Google has inaccurately determined whether a Book is in a category listed on Attachment F (Preview Uses), Google shall adjust the amount of the Book available through Preview Use or Fixed Preview for such Book in accordance with the correct category. Such adjustment by Google shall be Google’s sole obligation and the sole remedy for any errors in determining the category of a Book.

Also posted in Section 4.3, Section 4.3(b), Section 4.3(b)(iv), Settlement | Comments closed

S 04.3.3

Comments are closed.

(c) Rightsholder Options for Preview Use. Regardless of the default setting for Preview Use of a Book set forth in Section 4.3(b) (Default Settings for Preview Use), a Rightsholder will be able to choose from the following settings for Preview Use for any Book:

Also posted in Section 4.3, Section 4.3(c), Settlement | Comments closed

S 04.3.3.1

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(i) Fixed Preview.

Also posted in Section 4.3, Section 4.3(c), Section 4.3(c)(i), Settlement | Comments closed

S 04.3.3.2

Comments are closed.

(ii) Standard Preview.

Also posted in Section 4.3, Section 4.3(c), Section 4.3(c)(ii), Settlement | Comments closed

S 04.3.3.3

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(iii) Continuous Preview. “Continuous Preview” means that Google may display up to ten percent (10%) of the pages of a Book to a user without the adjacent page limitations of Standard Preview.

Also posted in Section 4.3, Section 4.3(c), Section 4.3(c)(iii), Settlement | Comments closed

S 04.3.4

Comments are closed.

(d) List of Blocked Preview Use Pages. Unless the Rightsholder has authorized display of one hundred percent (100%) of the pages of a Book in Preview Use, Google will maintain a list of Book pages that cannot be viewed in any Preview Use. The list will consist of at least five percent (5%) of the pages of a Book, which blocked pages shall be selected by Google unless the Registry develops a mechanism to identify for Google particular pages selected by the Rightsholder totaling not more than five percent (5%), in which case the blocked pages will be those chosen by the Rightsholder.

Also posted in Section 4.3, Section 4.3(d), Settlement | Comments closed

S 04.3.5

Comments are closed.

(e) Google Tests.

Also posted in Section 4.3, Section 4.3(e), Settlement | Comments closed

S 04.3.5.1

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(i) Fixed Preview Books. For Books in categories listed on Attachment F (Preview Uses) as Fixed Preview, Google may conduct tests in consultation with the Registry to determine if another Preview Use category increases sales and revenues of such Books. For purposes of such tests, Google may randomly select no more than five percent (5%) of the Books within a category in Attachment F (Preview Uses) for which only Fixed Preview is permitted and display those Books through Standard Preview, Continuous Preview or No Preview for a limited time only as necessary to gather statistically significant information as to which Preview Uses increases sales and revenues of such Book. Google shall present the results of these tests to the Registry. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) to move Books from Fixed Preview to Standard Preview, Continuous Preview or No Preview taking into account the data provided by such tests and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books that are currently included in Consumer Purchase will be increased by moving from Fixed Preview to Standard Preview, Continuous Preview or No Preview and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders

Also posted in Section 4.3, Section 4.3(e), Section 4.3(e)(i), Settlement | Comments closed

S 04.3.5.2

Comments are closed.

(ii) No Preview Books. For Books in categories listed on Attachment F (Preview Uses) as No Preview, Google may conduct tests in consultation with the Registry to determine which Preview Use setting increases Book sales and revenues for Books in the different Pricing Bins set forth in Section 4.2(c)(i) (Pricing Bins). For purposes of such tests, Google may randomly select no more than five percent (5%) of the Books within a category in Attachment F (Preview Uses) for which No Preview is permitted and display those Books through Fixed Preview, Standard Preview or Continuous Preview for a limited time only as necessary to gather statistically significant information as to which Preview Use increases sales and revenues of such Book. At the Registry’s request, during the first ten (10) years after the Effective Date and thereafter by agreement between Google and the Registry, Google shall collect and provide to the Registry empirical data concerning the extent to which each Preview Use has an effect on Book sales and revenues (including data on the number of accesses and purchases of particular Books and categories of Books), to enable Rightsholders and the Registry to change the Preview Use settings or to modify the percentage of a Book displayed through Preview Use for Books or categories of Books. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) to move Books from No Preview to one of the other Preview Use settings taking into account the data provided by such tests and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books included in Consumer Purchase will be increased by moving from No Preview to one of the other Preview Use settings and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders.

Also posted in Section 4.3, Section 4.3(e), Section 4.3(e)(ii), Settlement | Comments closed

S 04.3.5.3

Comments are closed.

(iii) Standard, Continuous, Fixed Preview or No Preview Books. Upon request of the Registry, for Books in any Preview Use category, Google shall make commercially reasonable efforts to conduct tests to determine if another Preview Use setting increases sales and revenues of such Books. The Registry, in consultation with Google, shall be responsible for determining whether to modify Attachment F (Preview Uses) for any category of Books by choosing from among the Preview Use settings, taking into account the data provided by the tests conducted pursuant to this Section 4.3(e) (Google Tests) and other data available to the Registry that is relevant to such Preview Use determination. The Registry shall make this decision taking into account whether the data indicate that sales and revenues of a particular category of Books will be increased by changing the Preview Use setting and, considering such data, acting in the best interests of the Rightsholders of that category of Books to maximize revenues for those Rightsholders.

Also posted in Section 4.3, Section 4.3(e), Section 4.3(e)(iii), Settlement | Comments closed

S 04.3.5.4

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(iv) Books Excluded from Testing. In no event shall any tests under clauses (i), (ii) or (iii) above either (1) make Display Uses of Books that the Rightsholder has expressly excluded from Display Uses or that the [Registry] (https://nylssites.wpengine.com/thepublicindex/archives/2678) reasonably requests to be excluded or (2) change the Preview Use of Books from settings (a) expressly set by the Rightsholder or (b) expressly set by the Registry by modification of Attachment F (Preview Uses) under clause (iii) above.

Also posted in Section 4.3, Section 4.3(e), Section 4.3(e)(iv), Settlement | Comments closed

S 04.3.5.5

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(v) Registry’s Ability to Adjust Preview Use Settings. In addition to amendments to Attachment F (Preview Uses) described in clauses (i), (ii) and (iii) above, the Registry may adjust the Preview Use setting for a particular Book in exceptional circumstances for good cause shown.

Also posted in Section 4.3, Section 4.3(e), Section 4.3(e)(v), Settlement | Comments closed

S 04.3.6

Comments are closed.

(f) Preview Use Pages Served on Non-Google Websites. When Google makes any Preview Use of a Book as authorized under this Amended Settlement Agreement and allows third parties to display Preview Use pages served by Google on non-Google websites, then Google agrees to include Metadata about that Book, including the title and author of the Book.

Also posted in Section 4.3, Section 4.3(f), Settlement | Comments closed

S 04.3.7

Comments are closed.

(g) Unclaimed Books. The Registry’s power to act with respect to the Preview Use under this Section 4.3 (Preview Use) will be delegated to the Unclaimed Works Fiduciary.

Also posted in Section 4.3(g), Settlement | Comments closed

S 04.4

Comments are closed.

Advertising Revenue Model. Revenues generated from Advertising Uses will be allocated between Google and the Rightsholders in accordance with Section4.5(a)(ii) (Net Advertising Revenues).

Also posted in Section 4.4, Settlement | Comments closed

S 04.5

2 responses to “S 04.5”

  1. jamie says:

    I am bit confused about the revenue splits. I see a lot of 63/37 on blogs, and yet this document seems to be all 70/30.

  2. Net Advertising Revenues and Net Purchase Revenues are both defined to be “less ten percent (10%) for Google’s operating costs.” So it’s a 70/30 split, but Google takes another 10% of the 70%, which comes out to 63/37.

Standard Revenue Splits and Discounting.

Also posted in Section 4.5, Settlement | Comments closed

S 04.5.1

Comments are closed.

(a) Obligation to Pay Revenue Share.

Also posted in Section 4.5, Section 4.5(a), Settlement | Comments closed

S 04.5.1.1

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(i) Net Purchase Revenues. Google shall pay to the Registry, onbehalf of the Rightsholders, the Standard Revenue Split for Purchases. The“Standard Revenue Split for Purchases,” paid by Google to Rightsholders, through the Registry, is seventy percent (70%) of Net Purchase Revenues.

Also posted in Section 4.5, Section 4.5(a), Section 4.5(a)(i), Settlement | Comments closed

S 04.5.1.2

Comments are closed.

(ii) Net Advertising Revenues. Google shall pay to the Registry, on behalf of the Rightsholders, the Standard Revenue Split for Advertising. The“Standard Revenue Split for Advertising,” paid by Google to Rightsholders,through the Registry, is seventy percent (70%) of Net Advertising Revenues.

Also posted in Section 4.5, Section 4.5(a), Section 4.5(a)(ii), Settlement | Comments closed

S 04.5.1.3

Comments are closed.

(iii) Agreed Revenue Splits. Notwithstanding clauses (i) and (ii) above, for any Revenue Model(s) for any Book(s) classified as Commercially Available, Google and the Rightsholder(s) of such Book(s) each has the right to request that the other negotiate a revenue split different from the Standard Revenue Split for Advertising and the Standard Revenue Split for Purchases (together, the “Standard Revenue Splits”). If Google or a Rightsholder requests that the revenue split be negotiated for any Revenue Model(s) and Google and the Rightsholder are unable to agree on a revenue split different from the Standard Revenue Splits for such Revenue Model(s), then such Standard Revenue Splits (or the then applicable previously negotiated and agreed revenue split, if any) shall apply to such Books for that Revenue Model(s); provided that Google may choose not to make such Books available through such Revenue Model(s) as permitted under Section 3.7(e) (Google’s Exclusion of Books)) and the Rightsholder may choose to exclude its Book(s) from such Revenue Model(s) pursuant to Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models). If Google and such Rightsholder(s) agree to a revenue split, then beginning within sixty (60) days after the date of such agreement, any calculations in Section 4.5(b) (Discounting, Special Offers and Subsidies) and any payments in Section 4.6 (Payment Terms) shall be based on such agreed revenue split rather than the Standard Revenue Splits. Google or the Rightsholder(s) shall notify the Registry of any agreed revenue split, the date of agreement to such revenue split, and the Books to which it applies. The Registry may not disclose information about any agreed revenue split with any Rightsholder (other than any other Rightsholder(s) of the Book(s) to which such agreed revenue split applies) unless such information is otherwise publicly available. Once a Book is classified as not Commercially Available, the Standard Revenue Splits shall apply beginning no later than sixty (60) days after such reclassification, notwithstanding any prior agreed revenue split between Google and a Rightsholder.

Also posted in Section 4.5, Section 4.5(a), Section 4.5(a)(iii), Settlement | Comments closed

S 04.5.2

Comments are closed.

(b) Discounting, Special Offers and Subsidies.

Also posted in Section 4.5, Section 4.5(b), Settlement | Comments closed

S 04.5.2.1

Comments are closed.

(i) Temporary Discounts. Google may providetemporary discounts off the List Prices at its sole discretion. If Google elects to provide such discounts, the Standard Revenue Split for Purchases paid to the Registry for the benefit of the Rightsholders will be based on the List Prices, unless otherwise set forth in this Section 4.5(b) (Discounting, Special Offers and Subsidies) or unless otherwise agreed by Google and the Registry.

Also posted in Section 4.5(b), Section 4.5(b)(i), Settlement | Comments closed

S 04.5.2.2

Comments are closed.

(ii) Consumer Purchases. The Registry may authorize Google to make special offers of Books available through Consumer Purchases at discounts of up to forty percent (40%) offreduced prices from the List Price Prices, subject to notification of such discountreduced price to the Registered Rightsholders (for his, her or its claimed Books) or the Unclaimed Works Fiduciary (for unclaimed Books) of the Book, with an opportunity for any such Rightsholder not to approve such discountreduced price. If Google sells Books at such a discountedreduced price, the Standard Revenue Split for Purchases or a revenue split agreed pursuant to Section 4.5(a)(iii) (Agreed Revenue Splits) will be based on such discountedreduced price.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(ii), Settlement | Comments closed

S 04.5.2.3

Comments are closed.

(iii) Use of Intermediaries for Institutional Subscription Sales Generally. Google may offer a discount of up to ten percent (10%) off the List Prices for Institutional Subscriptions for any Institutional Subscriptions sold through intermediaries.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(iii), Settlement | Comments closed

S 04.5.2.4

Comments are closed.

(iv) Sales of Institutional Subscriptions through Institutional Consortia. Approved discounts, if any, that Google is authorized to offer to an Institutional Consortium or its members will be included as part of the Pricing Strategy. Additional discounts will require Registry approval. Unless otherwise agreed upon by the Registry, Google is only authorized to offer discounts to Institutional Consortia if members of the Institutional Consortium purchase Institutional Subscriptions for at least seventy percent (70%) of the FTEs (i.e., full-time equivalent students) of the members of the Institutional Consortium. For purposes of this Section 4.5(b)(iv) (Sales of Institutional Subscriptions through Institutional Consortia), absent agreement of the Registry, Google may not offer such discount to any Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective and that was formed for the primary purpose of entering into an Institutional Subscription agreement with Google. Google will notify the Registry no less than thirty (30) days prior to entering into an Institutional Subscription agreement, with an approved Institutional Consortium discount, with an Institutional Consortium (or its members) that was not a member of the International Coalition of Library Consortia as of the date on which the then-current Pricing Strategy became effective.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(iv), Settlement | Comments closed

S 04.5.2.5

Comments are closed.

(v) Sale of Consumer Purchases through Affiliate Programs and Resellers.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(v), Settlement | Comments closed

S 04.5.2.5.1

Comments are closed.

(1)(v) Sale of Consumer Purchases through Affiliate Programs. With respect to sales of Books through Consumer Purchase through an Affiliate Program, Google may deduct from the money otherwise owed to the Registry for the benefit of the Rightsholders from such sale pursuant to Section 4.5(a)(i) (Net Purchase Revenues), up to three and three-quarters percent (3.75%) of the List Price as compensation actually paid through the Affiliate Program; provided, however, that such deduction will be made only to the extent and in an amount equal to one-half (1/2) the compensation actually paid by Google through the Affiliate Program. “Affiliate Program” means a program by which Google authorizes third parties to link their websites to Google Products and Services using specially formatted links and pays such third parties referral fees for sales of Books through Consumer Purchase to users referred to Google through such links.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(v), Settlement | Comments closed

S 04.5.2.5.2

Comments are closed.

(2) Resellers. To the extent that Google makes Books available through Consumer Purchases pursuant to this Amended Settlement Agreement, Google will allow resellers to sell access to such Books to their end users. Google will be responsible for hosting and serving the Digital Copies of such Books, and will be responsible for the security of such Digital Copies in accordance with Article VIII (Security and Breach). Google will permit the reseller of a Book to retain a majority of Google’s share of Net Purchase Revenues from Consumer Purchases through such reseller.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(v), Section 4.5(b)(v)(2), Settlement | Comments closed

S 04.5.2.6

Comments are closed.

(vi) Subsidies for Fully Participating Libraries and Cooperating Libraries. Google may subsidize the purchase of Institutional Subscriptions by Fully Participating Libraries and Cooperating Libraries and the amount paid to the Registry, on behalf of Rightsholder, will be as if no such subsidy had been provided.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(vi), Settlement | Comments closed

S 04.5.2.7

Comments are closed.

(vii) Rightsholders’ Consumer Subscription Discount. If and at such time as a Consumer Subscription is available from Google pursuant to Section 4.7(dc) (Consumer Subscription Models), individual Rightsholders may, at the Registry’s discretion, be offered a discount off of the price for such Consumer Subscription, which discount is subject to the approval of Google and the Registry.

Also posted in Section 4.5, Section 4.5(b), Section 4.5(b)(vii), Settlement | Comments closed

S 04.5.3

Comments are closed.

(c) Sales and Other Taxes. In all cases, Net Purchase Revenues and Net Advertising Revenues shall not include sales or other government charges or taxes. Google shall charge any applicable sales or other government charges or taxes in addition to the List Price or any other price authorized pursuant to this Amended Settlement Agreement.

Also posted in Section 4.5, Section 4.5(c), Settlement | Comments closed

S 04.6

Comments are closed.

Payment Terms.

Also posted in Section 4.6, Settlement | Comments closed

S 04.6.1

Comments are closed.

(a) Payment Terms. Google shall remit payment to the Registry under this Article IV (Economic Terms for Google’s Use of Books) within (i) sixty (60) days after the end of each calendar quarter for payments made with respect to Net Advertising Revenues and Net Purchase Revenues received by Google during the first full twelve (12) months after the Effective Date, and (ii) sixty (60) days after the end of each calendar month for payments made with respect to Net Advertising Revenues and Net Purchase Revenues received by Google thereafter. Payments to the Registry shall be made either by check or (if by wire transfer) pursuant to the wire transfer instructions provided by the Registry.

Also posted in Section 4.6, Section 4.6(a), Settlement | Comments closed

S 04.6.2

Comments are closed.

(b) Exceptions. Notwithstanding the foregoing provisions of Section 4.5 (Standard Revenue Splits and Discounting) and this Section 4.6 (Payment Terms), Google shall not be required to pay the Registry for (i) any purchase of or access to Books through any fraudulent or invalid means, including the fraudulent use of credit cards or other means of payment, as determined by Google in its sole discretion, (ii) purchases that are refunded prior to Google’s payment pursuant to Section 4.6(a) (Payment Terms), or (iii) purchases that are subject to a credit card charge back. Google reserves the right to grant refunds in its sole discretion. Google reserves the right to withhold payment to the Registry due to any of the foregoing, pending Google’s reasonable investigation. The Registry will cooperate with Google in its investigation of any of the foregoing. Google will not seek any refunds from the Registry or Rightsholders for amounts once paid to the Registry.

Also posted in Section 4.6, Section 4.6(b), Settlement | Comments closed

S 04.6.3

Comments are closed.

(c) Fraud. Neither Google, the Registry, nor Plaintiffs shall, nor shall each authorize or encourage any third party to, directly or indirectly purchase or otherwise obtain access to Books through any automated, deceptive, fraudulent or other invalid means, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of software or credit cards.

Also posted in Section 4.6, Section 4.6(c), Settlement | Comments closed

S 04.6.4

One response to “S 04.6.4”

  1. Tyler Rogers says:

    This may seem obvious but this section is exceedingly important. Many states and municipalities have not yet developed workable taxation arrangements for electronic resources. Clearly it is up to those governments to develop those tax policies.

(d) Taxes. Google and the Registry each agree to pay all applicable taxes or charges imposed on them by any government entity in connection with all matters contemplated by this Amended Settlement Agreement.

Also posted in Section 4.6, Section 4.6(d), Settlement | Comments closed

S 04.6.5

Comments are closed.

(e) Audit Rights.The Registry may, upon thirty (30) days’ prior notice and at its own expense, retain a nationally recognized independent and mutually-acceptable independent auditor (whose fees are not contingency based), under a duty of confidentiality to Google, to review and audit Google’s relevant records to confirm the payments due under Section 4.5 (Standard Revenue Splits and Discounting). The audit shall: (a) be subject to Google’s security and confidentiality requirements; (b) occur no more than once every calendar year and not during the first or last three (3) weeks of a calendar quarter; (c) transpire during Google’s normal business hours; and (d) cover a period not to exceed the previous four (4) calendar years. Google will promptly pay to the Registry the amount of any under payment determined by the audit and the Registry will promptly pay to Google (or Google may offset) the amount of any overpayment determined by the audit. In addition, if the audit reveals an underpayment of five percent (5%) or more in the payments for any calendar quarter, then Google shall pay for the reasonable costs associated with the audit. The accounting firm may only disclose to the Registry whether or not Google is in compliance with its payment obligations under Section 4.5 (Standard Revenue Splits and Discounting) and, if Google is not incompliance, the amount of any underpayment or overpayment and supporting calculations.

Also posted in Section 4.6, Section 4.6(e), Settlement | Comments closed

S 04.7

2 responses to “S 04.7”

  1. jamie says:

    I assume this list is not exhaustive.

  2. No, it appears that it is not.

NewAdditional (for unclaimed Books, the Unclaimed Works Fiduciary) Revenue Models. The Registry (for unclaimed Books, the Unclaimed Works Fiduciary and Google may, over time, agree to new revenue models, and discount programs (if any) for such revenue models, including agree to one or more of the following additional Revenue Models:

Also posted in Section 4.7, Settlement | Comments closed

S 04.7.1

Comments are closed.

(a) Print on Demand (“POD”) – POD copies of Books This service would permit purchasers to obtain a print copy of a non-Commercially Available Book distributed by third parties. A Book’s availability through such POD program would not, in and of itself, result in the Book being classified as Commercially Available.

Also posted in Section 4.7, Section 4.7(a), Settlement | Comments closed

S 04.7.2

Comments are closed.

(b) Custom Publishing – Per-page pricing of Books, or portions thereof, for course materials, and other forms of custom publishing for the educational and professional markets.File Download. This service would permit purchasers of Consumer Purchase for a Book to download a copy of such Book in an appropriate file format such as PDF, EPUB or other format for use on electronic book reading devices, mobile phones, portable media players and other electronic devices (“File Download”).

Also posted in Section 4.7, Section 4.7(b), Settlement | Comments closed

S 04.7.3

Comments are closed.

(c) PDF Download -Downloadable PDF versions of Books.

Also posted in Section 4.7, Section 4.7(c), Settlement | Comments closed

S 04.7.4

Comments are closed.

(c)(d) Consumer Subscription Models – An. This service would permit the purchase of individual version of anaccess to the Institutional Subscription Database or to a designated subset thereof (“Consumer Subscription”).

Also posted in Section 4.7, Section 4.7(d), Settlement | Comments closed

S 04.7.5

Comments are closed.

(e) Summaries, Abstracts and/or Compilations of Books.

Google may not offer any new revenue models with respect to Books without authorization from the Registry or the Rightsholder.

Subject to Section 4.5(a)(iii) (Agreed Revenue Splits), the revenue split for POD and File Download for a Book shall be the same as that for Consumer Purchase for such Book and the revenue split for Consumer Subscription for a Book shall be the same as that for the Institutional Subscriptions for such Book. The Registry will give Registered Rightsholders and the Unclaimed Works Fiduciary at least sixty (60) days’ notice prior to Google offering any additional Revenue Model, and the right to exclude their Books or unclaimed Books, as the case may be, from such additional Revenue Model pursuant to Section 3.5(b) (Right to Exclude from Display Uses and Revenue Models).

Also posted in Section 4.7, Section 4.7(e), Settlement | Comments closed

S 04.8

Comments are closed.

Public Access Service.

Also posted in Section 4.8, Settlement | Comments closed

S 04.8.1

Comments are closed.

(a) Public Access Service.

Also posted in Section 4.8, Section 4.8(a), Settlement | Comments closed

S 04.8.1.1

Comments are closed.

(i) Free Public Access Service. Google may provide the Public Access Service to each not-for-profit Higher Education Institution and Public Library that so requests at no charge (and without any payment to the Rightsholders, through the Registry or otherwise (other than as set forth in Section 4.8(a)(ii) (Printing)) as follows:

Also posted in Section 4.8, Section 4.8(a), Section 4.8(a)(i), Settlement | Comments closed

S 04.8.1.1.1

Comments are closed.

(1) in the case of not-for-profit Higher Education Institutions that do not qualify as Associate’s Colleges pursuant to the Carnegie Classification of Institutions of Higher Education, one computer terminal for every ten thousand (10,000) Full-Time Equivalency (i.e., full-time equivalent students) at each such institution (which computer terminal may change from time to time);

Also posted in Section 4.8, Section 4.8(a), Section 4.8(a)(i), Section 4.8(a)(i)(1), Settlement | Comments closed

S 04.8.1.1.2

Comments are closed.

(2) in the case of not-for-profit Higher Education Institutions that qualify as Associate’s Colleges pursuant to the Carnegie Classification of Institutions of Higher Education, one computer terminal for every four thousand (4,000) Full-Time Equivalency (i.e., full-time equivalent students) at each such institution (which computer terminal may change from time to time); and

Also posted in Section 4.8, Section 4.8(a), Section 4.8(a)(i), Section 4.8(a)(i)(2), Settlement | Comments closed

S 04.8.1.1.3

Comments are closed.

(3) in the case of each Public Library, no more than one terminal per Library Building.; provided, however, that the Registry may authorize one or more additional terminals in any Library Building under such further conditions at it may establish, acting in its sole discretion and in furtherance of the interests of all Rightsholders.

Also posted in Section 4.8, Section 4.8(a), Section 4.8(a)(i), Section 4.8(a)(i)(3), Settlement | Comments closed

S 04.8.1.2

One response to “S 04.8.1.2”

  1. […] Section 4.8(a)(ii) marks a radical change in the relationship between libraries and rights holders. Thanks to Section 108 of the Copyright Act, libraries are not responsible for royalties that may be required as a product of patron copying. As long as the library posts the proper notices and has no knowledge that violations are occurring, it also has no liability for potentially infringing acts by users. The Google Books Settlement overturns almost 75 years of law and practice and makes the library (or possibly Google, if it acts as an agent for the library) an active monitor of what its patrons choose to reproduce. And if the Books Rights Registry can demand this, other vendors will start requiring it as well. I imagine that in 10 years, every license agreement that libraries sign will stipulate a royalty for user printing, and mandatory licenses for photocopying may not be far behind. […]

(ii) Printing. Google shall design the Public Access Service to enable users at a not-for-profit Higher Education Institution to print pages from Display Books for a per-page fee, and to enable users at a Public Library to print pages from Display Books for a per-page fee to the extent that such Public Library offers per-page printing services for a fee for other products and services. The Registry shall set a reasonable fee for such printing. Google shall collect all such printing fees and shall pay them to the Registry in accordance with the Standard Revenue Split for Purchases.

Also posted in Section 4.8, Section 4.8(a), Section 4.8(a)(ii), Settlement | Comments closed

S 04.8.1.3

Comments are closed.

(iii) Additional Public Access Service. The Registry and Google may agree that Google may make available the Public Access Service to one or more Public Libraries or not-for-profit Higher Education Institutions either for free or for an annual fee, in addition to the Public Access Service provided under Section 4.8(a)(i) (Free Public Access Service).

Also posted in Section 4.8, Section 4.8(a), Section 4.8(a)(iii), Settlement | Comments closed

S 04.8.2

Comments are closed.

(b) Commercial Public Access Service. The Registry and Google may agree to make a commercial public access service available to copy shops and other entities for an annual fee per concurrent user and a fee per printed page.

Also posted in Section 4.8, Section 4.8(b), Settlement | Comments closed

S 04.9

Comments are closed.

Economic Terms Renegotiation. Unless otherwise agreed by the Registry and Google, the economic terms pertaining to any newadditional Revenue Models agreed pursuant to Section 4.7 (NewAdditional Revenue Models) may, at the option of Google or the Registry, be renegotiated at the end of the three (3)-year period commencing with the Effective Date, and every four (4) years thereafter, or as otherwise mutually agreed by Google and the Registry. Google or the Registry shall give the other party notice at least ninety (90) days prior to the end of the then-current three (3)-or four (4)-year period, as applicable, of its exercise of its option to renegotiate. Such ninety (90)-day period may be extended by mutual written agreement of Google and the Registry. If the renegotiation is not successful, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution). The then-current economic terms will apply unless and until the earlier of (a) Google and the Registry agreeing to such renegotiated terms or (b) the Arbitrator rendering a Decision. Without limiting the foregoing, the term “economic terms,” as used in this Section 4.9 (Economic Terms Renegotiation), does not include the Standard Revenue Split for Advertising or the Standard Revenue Split for Purchases.

Also posted in Section 4.9, Settlement | Comments closed