ARNOLD & PORTER LLP Spoon April 17, 2009 Se ne Washington, DC 20004-1206 BY HAND ‘The Honorable Denny Chin United States District Judge U.S. Courthouse, 500 Pearl Street New York, NY 10007-1312 Re: The Authors Guild Inc. et al. v. Google Inc., No. 05 Civ. 8136 (DO Dear Judge Chin: Pursuant to Your Honor’s Individual Practice 2 (A), we write on behalf of the Internet Archive (‘the Archive”) to request a pre-motion conference in the above- referenced case. The Archive seeks leave to file a motion to intervene in this matter as a party defendant. We also seek leave to file a motion for the admission of undersigned counsel, Hadrian R. Katz of the law firm of Amold & Porter LLP, to appear on bebalf of the Archive pro hac vice, in conjunction with our colleague, John Maltbie, of our New York office, who is a member of the bar of this Court, ‘The Archive is a non-profit library that has both physical and digital collections. ‘The Archive provides free access for hundreds of thousands of researchers, historians, scholars, and members of the general public each day, The Intemet Archive works with, and performs services for, the Library of Congress, NASA, and the National Archives Records Administration, as well as national libraries around the world. Among its other activities, the Archive has established a Web site at www.archive.org that provides a host of free services benefitting the public. The best known of these services is Wayback Machine, an archive of some 150 billion pages of historical Internet content that enables users to view and search Web sites as they existed at various dates in the past. The Archive also administers the Open Content Alliance (“OCA”), an association of over 2000 contributing libraries that are placing books into a joint repository administered by the Archive. The Archive's text archive contains over one million written works, many of which are in the public domain or are available through Creative Commons licenses; its purpose is to provide the public with access to crestive works in order to promote the distribution of knowledge and the stimulation of creativity. The Internet Archive operates 18 scanning centers in 5 countries which all together scan approximately 1000 books each day. Over the last 4 years, books to be scanned by the Viashiavon, DC Now York — Landon — Bru DC: 25474511 Los argoles Century City Nontern Virginia DenverARNOLD & PORTER Lip ‘The Honorable Denny Chin April 17, 2009 Page 2 Internet Archive have come from over 150 different libraries. As such, the Archive's text archive is similar to and competitive with defendant Google’s book search project. The Archive's text archive would greatly benefit from the same limitation of potential copyright liability that the proposed settlement provides Google. Without such a limitation, the Archive would be unable to provide some of these same services due to the uncertain legal issues surrounding orphan books. The Archive seeks to intervene in the case as of right under Federal Rule of Civil Procedure 24 (a) (2), of, alternatively, with the Court’s permission under rule 24 (b) (2), The Archive is one of many Internet content providers that have an interest in opposing the proposed Settlement Agreement because it effectively limits the liability for the identified uses of orphan works of one party alone, Google Inc., and provides for a Books Rights Registry (“BRR”), the interests of which are represented solely by identified rightsholders, to negotiate their exploitation. All other persons, including Intemet content providers such as the Archive, would not be able to use orphan works broadly without being exposed to claims to infringement. Unlike Google, such persons could face potentially significant statutory damages for their use of orphan works. The Archive believes that its interests and those of the public would best be served by its intervening in this case. The Archive seeks to intervene only for the limited purpose of challenging certain aspects of the settlement that affect the Archive's and the public interest. The Archive does not intend for its intervention in the case to alter the existing case schedule, However, the Archive believes that its ability to protect its competitive position regarding the proposed settlement will be best served by intervention as a party, rather than through an amicus curiae filing or other means. There are no existing parties in the case that could adequately represent the or the interests of other Internet content providers. Google has negotiated for itself certainty in its use of orphan works under the terms of the settlement through the mechanism of the BRR, whereas marketplace competitors are able to negotiate with the BRR only for commercial exploitation of those works with identified rightsholders. If the Archive (and other similarly situated parties) are not permitted to intervene, this Court and others may be faced with future litigations in which Internet content providers seek clarity around the use of orphan works. ‘The motion we seck to file would be timely, and would not delay proceedings in this matter. The Archive’s interest in this litigation arose only as a result of the fairly recent settlement, and we could not have anticipated a result that would grant Google broad rights to use orphan works, without resolving the legal issues attendant thereto.ARNOLD & PORTER LLP The Honorable Denny Chin April 17, 2009 Page 3 broad rights to use orphan works, without resolving the legal issues attendant thereto We are aware of the Court's May deadline for filing objections to the settlement, and its plans for a June hearing on the settlement, We will accommodate those and all future deadlines in our submissions and participation. Given the wide-ranging importance of the case, its unusual posture, the pervasive impact of the proposed settlement on numerous market participants, and its overall impact on copyright law, the Archive should be permitted to intervene under rule 24. The case involves important questions of copyright law that impact the public, as well as the private interests of the Archive. We have circulated a draft of this letter to counsel for the existing parties, who advise that they will oppose the Archive's proposed intervention. Respectfully yours, ARNOLD & PORTERALP cc: All Counsel