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Internet Archive Suppl. Memo of Amicus Curae GBSv2

Internet Archive Suppl. Memo of Amicus Curae GBSv2

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Published by Peter Brantley
Internet Archive filing of Amicus Curae in opposition to the Google Book Search amended settlement agreement.
Internet Archive filing of Amicus Curae in opposition to the Google Book Search amended settlement agreement.

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Published by: Peter Brantley on Jan 28, 2010
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10/02/2011

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKTHE AUTHORS GUILD, INC.,ASSOCIATION OF AMERICAN PUBLISHERS, INC.,ET AL.,Plaintiffs,v.GOOGLE INC.,Defendant.Case No. 05-cv-08136-DC
MEMORANDUM OF AMICUS CURIAE THE INTERNET ARCHIVEIN OPPOSITION TO AMENDED SETTLEMENT AGREEMENT
A
RNOLD
&P
ORTER
LLPHadrian R. KatzCatherine R. RowlandBrent S. LaBarge555 12 Street, NWWashington, DC 20004Tel.: 202-942-5707Fax: 202-942-5999E-mail: hadrian.katz@aporter.comAnthony Boccanfuso399 Park AvenueNew York, NY 10022Tel.: 212-715-1000Fax: 212-715-1399E-mail: anthony.boccanfuso@aporter.comSusan P. Koniak B
OSTON
U
NIVERSITY
S
CHOOL OF
L
AW
Boston, MA 02215
Case 1:05-cv-08136-DC Document 811 Filed 01/27/2010 Page 1 of 13
 
TABLE OF CONTENTSPAGEI. The Amendments to the Settlement Agreement Do NotRemedythe Rule 23 Concerns Identified in the Internet Archive’s InitialMemorandum2a. Class Rules Still Do Not Permit the Inclusion of Orphan Works 2b. Google’s Prior Statements Demonstrate the Inadequacy of theAmended Agreement2c. The Amendments Do Not Cure the Anticompetitive Elements of theOriginal Agreement3d. The Amended Agreement Fails To Respectthe Rights of ForeignAuthors4e. The AmendedAgreement Continues to Pose Risks to PersonalPrivacy6II. Creation of an Unclaimed Works Fiduciary Would Not MateriallyReduce the Prejudice to Orphan Works Owners7III. No Class Settlement ShouldAuthorize Google To Commit AdditionalWrongful Acts in the Future8IV. Conclusion 10
Case 1:05-cv-08136-DC Document 811 Filed 01/27/2010 Page 2 of 13
 
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKTHE AUTHORS GUILD, INC.,ASSOCIATION OF AMERICAN PUBLISHERS, INC.,ET AL.,Plaintiffs,v.GOOGLE INC.,Defendant.Case No. 05-cv-08136-DC
MEMORANDUM OF AMICUS CURIAE THE INTERNET ARCHIVEIN OPPOSITION TO AMENDED SETTLEMENT AGREEMENT
The Internet Archive (“the Archive”) respectfully submits this Memorandum in oppositionto the November 13, 2009 Amended Settlement Agreement (the “Amended Agreement”) betweenthe plaintiffs and defendant Google Inc. (“Google” and, collectively with the plaintiffs, “theParties”).The Amended Agreement fails to address the concerns voiced by the Archive, and echoedby numerous other stakeholders, in opposition to the original October 28, 2008 SettlementAgreement (the “Original Agreement”). These concerns involve fundamental issues, including themisappropriation of massive numbers of orphan works, the anticompetitive nature of theagreement, and the failure to fairly address the rights of foreign authors. Instead of remedyingthese problems, the Parties offered only minor amendments that still allow them to manipulateclass procedures to seize rights that copyright law has secured to others.The Archive submits that approving the Amended Agreement would violate rule 23 andwould be an abuse of the class procedure.
Case 1:05-cv-08136-DC Document 811 Filed 01/27/2010 Page 3 of 13

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