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posted by martyb on Monday March 05 2018, @01:22PM   Printer-friendly
from the heavy-irony dept.

Project Gutenberg is a well-known repository for e-books that are out of copyright.

Recently, a German subsidiary of an international publisher started a copyright case against the project concerning 18 books, for which it claimed copyright. Read Project Gutenberg's summary of the whole mess here. The trick here is that the books in question were officially out of copyright in the USA, but still within copyright in Germany. In Germany, copyrights are "life + 70 years", meaning the copyrights to these books will expire in 2020, 2025 and 2027.

There's some interesting details (claims of copyright transfers during the trial), see Gutenberg's statement.

The long and short of it: the judge rules in favour of the plaintiffs, and ordered Project Gutenberg to cease distribution of the books. The project will file an appeal, but while that is pending, they chose to comply with the ruling (even though they feel that the project should fall wholly under US law or WIPO arbitration). To comply with the order, and likely to prevent further claims, the project decided to block Germany entirely.

[Ed note: I find it troublesome that a court in Germany can make a decision concerning an American company. I am not unaware of the irony in that statement compared to the US courts being asked to require Microsoft to turn over e-mails stored on a server in Ireland. Here is a selection from the Project Gutenberg link; following that is FakeBeldin's take on the situation.]

Q: Why block all of Germany, rather than just those 18 books?
A: PGLAF's legal advisors disagree with all claims that there must be any blocking, or removal, or anything associated - censorship, fines/fees, disclaimers, etc. - for items that are in the public domain in the US. Period.

Because the German Court has overstepped its jurisdiction, and allowed the world's largest publishing group to bully Project Gutenberg for these 18 books, there is every reason to think that this will keep happening. There are thousands of eBooks in the Project Gutenberg collection that could be subject to similar over-reaching and illigitimate actions.

PGLAF is a small volunteer organization, with no income (it doesn't sell anything) other than donations. There is every reason to fear that this huge corporation, with the backing of the German Court, will continue to take legal action. In fact, at least one other similar complaint arrived in 2017 about different books in the Project Gutenberg collection, from another company in Germany.

Project Gutenberg's focus is to make as much of the world's literature available as possible, to as many people as possible. But it is, and always has been, entirely US-based, and entirely operating within the copyright laws of the US. Blocking Germany, in an effort to forestall further legal actions, seems the best way to protect the organization and retain focus on its mission.

Q: The plaintiff is S. Fischer Verlag, GmbH. Is that the international conglomerate?
A: Yes, it is part of a family of companies all under single ownership and control or majority stakeholdership, from Germany, reaching around the world. S. Fischer Verlag, GmbH is a unit of Verlagsgruppe Georg Holtzbrinck GmbH. Internationally it is known in the US and elsewhere as Holtzbrinck Publishers LLC. Readers in the US know this as Macmillan, which is one of the largest publishers in the US by revenue, and owns many familiar imprints. US readers might also recall that Macmillan was one of four companies accused by the US Dept. of Justice in 2012 of price fixing. The companies eventually settled the antitrust claims, including by giving credits to customers who had overpaid for eBooks.

Q: Why did this all take place in the German Court system, rather than the US - where Plaintiff does business as Macmillan, and PGLAF is based?
A: The legal guidance PGLAF received is that US law requires that such proceedings should have taken place in the US, and in fact any attempts at enforcement of the judgement would need to occur in the US Court system. PGLAF already informed Plaintiff and the German Court that the US Court system is the appropriate venue for Plaintiff's concerns. Plaintiff declined.

Alternatively, international treaties - notably the Berne Convention and related treaties - provide mediation processes through the World Intellectual Property Organization. PGLAF offered to undergo this mediation process, and Plaintiff declined.

International treaties explicitly and unambiguously support PGLAF's legal guidance as described above: that the copyright status in one country is not impacted or enforceable or otherwise relevant in other countries. Plaintiff managed to find a German Court, and some precedents from Germany (and, after the lawsuit was filed, from the EU), which were willing to flaunt international treaties by developing a theory that PGLAF is under jurisdiction of the German Court system.

The decision to acceed to the German Court's order to make items inaccessible from Germany is intended to be a temporary appeasement, while the appeal occurs - this is because the German appeal Court will likely look disfavorably on PGLAF if it shows contempt for the German Court. Ultimately, PGLAF seeks to establish that any complaints about copyright must be brought either to the US Courts (where PGLAF operates) or WIPO processes (as guided by international treaties).

<opinion>
While that may seem draconian, I fully support this move. One case concerning 18 books highlighted that there are different interpretations of copyright law between Germany and the US. Now that this is known, it is an open invitation to further litigation - while Project Gutenberg may not be infringing US copyright laws, they may be infringing German copyright laws, for which they could be slapped with fines.

The (very) chilling side effect of this is that I can easily envision this concept sliding down the slippery slope.
Germany is a western-alike country, signatory to most trade agreements, conventions (such as the Berne convention governing copyright), and part of the EU. If Project Gutenberg falls afoul of German copyright law, then it most likely falls afoul of most copyright laws in the EU. And those are (by the Berne Convention) more or less aligned with other countries... so if that fails, then it probably fails in many more countries than just the EU.

If the final judicial conclusion is that Project Gutenberg was in the wrong and therefore liable for damages, I would recommend them to block everywhere but the USA. Even though I would hate losing access to Gutenberg (living outside the USA), for this non-profit initiative to expose themselves around the world to court cases is a tremendously bad idea.
</opinion>

(For added irony: the project is named after Johannes Gutenberg, the German who more or less invented the printing press.)


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  • (Score: 4, Insightful) by cubancigar11 on Monday March 05 2018, @01:46PM (20 children)

    by cubancigar11 (330) on Monday March 05 2018, @01:46PM (#647952) Homepage Journal

    An american company doesn't have any rights over Germany. It has rights over America, and Project Gutenberg is making the books in question available to non-Germans. I fail to see the problem here. Should an American company not be beholden to local laws anymore? They have banned Germany, not German books. Law is law and you can't mumbo-jumbo your way into violating it unless you have a legal backing. Since America law is not followed in Germany (duh), Americans or Americans company don't have any legal backing in Germany.

    PGLAF's legal advisors disagree... Because the German Court has overstepped its jurisdiction...

    So what were people expecting court to say? Respondent was throwing garbage from his house in the river that is illegal. Respondent should not throw garbage from his house?

    There are thousands of eBooks in the Project Gutenberg collection that could be subject to similar... actions.

    Correct. So blocking Germany is the right solution until and unless Germans decide to change the law.

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  • (Score: 4, Insightful) by All Your Lawn Are Belong To Us on Monday March 05 2018, @02:02PM (9 children)

    by All Your Lawn Are Belong To Us (6553) on Monday March 05 2018, @02:02PM (#647955) Journal

    I'm just punting, but it may come as a surprise to someone raised with the Internet that local laws do indeed apply within a local jurisdiction, and that if a company is going to serve a population via the Internet that the jurisdiction's laws would apply.

    That said, I don't fully understand what Germany can do to Project Gutenberg with such a ruling. Can they get at Project Gutenberg's sources? Send the ISPs a takedown order? Maybe there is some partnership "trade" agreement that would allow for mutual enforcements? (Which is why agreements like TPP are wrong - they compromise soverignty in the name of profit.)

    What we're seeing is how the Internet may ultimately die, though, tied down in a morass of international law. The question is: was it always thus and just waiting for the proper scissors for the Sword of Damocles to fall, or is this something new. Or am I wrong, and this is just business as usual and the Internet is fine. Or perhaps I would like a nice cup of tea. Yes, that seems more likely.

    --
    This sig for rent.
    • (Score: 5, Insightful) by JoeMerchant on Monday March 05 2018, @02:12PM (1 child)

      by JoeMerchant (3937) on Monday March 05 2018, @02:12PM (#647960)

      it always thus and just waiting for the proper scissors for the Sword of Damocles to fall.

      From day 1, local jurisdictions could have banned internet access for their citizens whether directly, or under the auspices of existing laws. Until now, most jurisdictions have seen the + side of the risk/reward balance, but in this particular case Germany has chosen to enact a partial block on themselves, to protect their citizens from free exposure to copyrighted works.

      What I think will be interesting is if the international oversight bodies choose to allow this to proceed as it is, with the copyright in Germany works available freely to those jurisdictions in which the copyright doesn't hold. In which case, I expect all citizens of France to soon be enjoying bootleg copies of Hollywood movies before they are released in theaters.

      --
      🌻🌻 [google.com]
      • (Score: 0) by Anonymous Coward on Monday March 05 2018, @09:59PM

        by Anonymous Coward on Monday March 05 2018, @09:59PM (#648208)

        I expect all citizens of France to soon be enjoying bootleg copies of Hollywood movies before they are released in theaters.

        Well, these days France already gets many Hollywood movies before their release in the US.

    • (Score: 5, Insightful) by SomeGuy on Monday March 05 2018, @02:33PM (1 child)

      by SomeGuy (5632) on Monday March 05 2018, @02:33PM (#647965)

      Which is why agreements like TPP are wrong - they compromise soverignty in the name of profit.

      And that is the ONLY reason Trump abandoned the TPP. It wast not profitable enough.

      He recently stated that he would happily reconsider the TPP, if the US could get a "substantially better deal." Rights, sovereignty, and anything else be damned.

      • (Score: 1, Interesting) by Anonymous Coward on Tuesday March 06 2018, @07:24AM

        by Anonymous Coward on Tuesday March 06 2018, @07:24AM (#648399)

        that is the ONLY reason Trump abandoned the TPP. It wast not profitable enough.

        No, Trump abandoned TPP because Trump is an idiot and didn't understand any of it. It's the same reason why he thinks trade wars are good and easy to win. The guy is a moron.

        And now that TPP will go ahead without Trump, he's "I will be back in if you give me better terms". Same as Paris Accords. The guy is a total wanker.

    • (Score: 2) by cubancigar11 on Monday March 05 2018, @03:00PM

      by cubancigar11 (330) on Monday March 05 2018, @03:00PM (#647974) Homepage Journal

      The only thing Germany can do is ban Project Gutenberg in Germany - which is what Project Gutenberg has preemptively done.

    • (Score: 2) by frojack on Monday March 05 2018, @09:08PM (3 children)

      by frojack (1554) on Monday March 05 2018, @09:08PM (#648175) Journal

      That said, I don't fully understand what Germany can do to Project Gutenberg with such a ruling.

      Why not click on the links in the PG page and read the ruling..... English: https://cand.pglaf.org/germany/gutenberg-lawsuit-judgement-EN.pdf [pglaf.org]

      The defendants are ordered, on penalty of an administrative fine of up to EUR
      250,000.00 or, alternatively, imprisonment of up to 6 months, for each case of noncompliance,
      said imprisonment to be imposed on the second defendant,
      to cease and desist from making the following works publicly available or letting them be
      made publicly available,... via the website www.gutenberg.org (including its sub-pages) without the plaintiff’s consent,
      if and to the extent to which it is possible for internet users to access them (screen display
      and/or download) from Germany.

      So you see, Tempest in a Teapot.

      The german court only prohibited access from Germany which makes this whole story seem based on a lie, (ordered Project Gutenberg to cease distribution of the books> and 90% of the discussion here pointless.
      .

      The judge LIMITED his ruling to GERMANY!!!

      --
      No, you are mistaken. I've always had this sig.
      • (Score: 0, Disagree) by Anonymous Coward on Monday March 05 2018, @10:05PM (2 children)

        by Anonymous Coward on Monday March 05 2018, @10:05PM (#648209)

        The judge LIMITED his ruling to GERMANY!!!

        Project Gutenberg IS NOT GERMAN and DOES NOT OPERATE IN GERMANY!!!
        So the judge's order applies to NOBODY!!!

        If the Germans want to stop Germans from going out and getting something, then they should police their own borders.

        • (Score: 1, Informative) by Anonymous Coward on Tuesday March 06 2018, @07:27AM (1 child)

          by Anonymous Coward on Tuesday March 06 2018, @07:27AM (#648401)

          The website is accessible from Germany. Hence, it provides services to Germans. Hence, it must act according to local laws.

          If they don't, then the person in charge could face criminal penalties which would mean asking US to extradite them to Germany to face such penalties.

          You know, like US wants to take down other services around the world that break *their* laws in US which such services operate outside the US.

          • (Score: 0) by Anonymous Coward on Tuesday March 06 2018, @01:01PM

            by Anonymous Coward on Tuesday March 06 2018, @01:01PM (#648479)

            The website is accessible from Germany. Hence, it provides services to Germans. Hence, it must act according to local laws.

            You know what else is accessible from Germany? Russia. Sure, your packets have to go through a few countries to get there, but many Russian businesses would certainly provide their services to Germans. Should all Russian businesses operate by German laws, just because some Germans send requests occasionally?
            What if the German physically goes to Russia, buys whatever, and takes it back to Germany. Should the Russian business be liable for that as well?

            The internet doesn't provide businesses a point of presence in every computer in every country. What it does is provide any computer in any country a point of access to any business. The CUSTOMER, not the business, is the one making the international transaction.

  • (Score: 5, Insightful) by FatPhil on Monday March 05 2018, @03:44PM (5 children)

    by FatPhil (863) <pc-soylentNO@SPAMasdf.fi> on Monday March 05 2018, @03:44PM (#648000) Homepage
    > So blocking Germany is the right solution until and unless Germans decide to change the law.

    Surely Germany blocking Project G makes more sense than Project G blocking Germany? Why should a US company be forced to reconfugure its servers just because of one petty country? (I raised the same question about France and Yahoo years ago, and many other cases - if countries want to have quirks in their laws then they should not expect alien entities to have to facilitate those quirks.)
    --
    Great minds discuss ideas; average minds discuss events; small minds discuss people; the smallest discuss themselves
    • (Score: 3, Insightful) by xorsyst on Monday March 05 2018, @03:56PM (2 children)

      by xorsyst (1372) on Monday March 05 2018, @03:56PM (#648011)

      It's very simple.

      PG makes material illegally available in Germany
      Germany tells PG so
      If PG does nothing, then anyone from PG who visits Germany is liable to be arrested for breaking German law
      If they don't visit Germany, then they are fine

      • (Score: 4, Informative) by choose another one on Monday March 05 2018, @04:57PM (1 child)

        by choose another one (515) Subscriber Badge on Monday March 05 2018, @04:57PM (#648037)

        > If PG does nothing, then anyone from PG who visits Germany is liable to be arrested for breaking German law

        This + the European Arrest Warrant means not just "visits Germany" but "visits anywhere EAW applies". EAW is much much easier (for prosecutors) than extradition and much harder to fight.

        Otherwise this is really no different to the various perfectly legal (outside the US) internet gambling companies whose officers are subject to immediate arrest in the US. In both cases the local laws being applied are slightly screwy / discriminatory and the defendant is doing something perfectly legal in a different jurisdiction. International treaty processes are probably the right place to resolve this, but the US has lost there on the gambling issue (at least wrt. Antigua) without it appearing to change anything much.

        • (Score: 2) by isostatic on Tuesday March 06 2018, @11:03AM

          by isostatic (365) on Tuesday March 06 2018, @11:03AM (#648447) Journal

          No different to Dimitry Skylarov visiting the US. As for the EAW, it's pretty much the same as 18 U.S. Code § 3182

    • (Score: 3, Insightful) by Anonymous Coward on Monday March 05 2018, @04:33PM (1 child)

      by Anonymous Coward on Monday March 05 2018, @04:33PM (#648022)

      It has most assuredly not ordered Project Gutenberg to block Germany. That is a proactive measure Project G has taken because they don't want to fight a case for each case, and most probably because they don't have the resources to hire a team (it will take a team) to make the whole project legally in green everywhere they want their website to be accessed from. It is simply cheaper and for them to block Germany.

      Sad turn of events but such is the outcome when laws are like that.

      • (Score: 2) by FakeBeldin on Monday March 05 2018, @05:09PM

        by FakeBeldin (3360) on Monday March 05 2018, @05:09PM (#648043) Journal

        In all fairness, they are appealing this verdict.
        However, they are blocking Germany as a way to comply with the current ruling so as not to risk contempt of court during the appeals.

        A side effect of this is that any other German publisher that now figures "woohoo! let's get some free cash from Project Gutenberg!" finds that PG is no longer distributing material in Germany. That might forestall some cases - even if the copyright law of another country is also violated, then the question remains why a German company wouldn't sue in Germany (where it is based) nor in the USA (where the defendant is based).

        So it might help to delay or avert the tidal wave of litigation that could result from this.

  • (Score: 0) by Anonymous Coward on Monday March 05 2018, @04:42PM (3 children)

    by Anonymous Coward on Monday March 05 2018, @04:42PM (#648028)

    Well, you seem to be no friend of free speech rights. This is precisely why we need to invent and implement tools to make geolocation more difficult than it's worth. No government has the right to block people from seeing what they want to see. Your analogy is bogus. This is not garbage being thrown, it is "garbage" being sought out and brought home. The government has no right to meddle. And fuck anybody who says they do. I am so tired of these stupid arguments. Hopefully new tech will emerge to render the issue moot. And all the dictators and supporters can go cry in their soup. I hope project gutenberg offers up a VPN solution for Germany and other dictatorships that practice censorship. Let's make stupid laws impossible to enforce!

    • (Score: 2) by maxwell demon on Monday March 05 2018, @05:43PM

      by maxwell demon (1608) on Monday March 05 2018, @05:43PM (#648059) Journal

      There are enough VPN solutions (and others, like TOR) that Project Gutenberg doesn't need to provide their own. So why should they take the risk?

      --
      The Tao of math: The numbers you can count are not the real numbers.
    • (Score: 2) by cubancigar11 on Monday March 05 2018, @06:22PM (1 child)

      by cubancigar11 (330) on Monday March 05 2018, @06:22PM (#648080) Homepage Journal

      This is why all people who do STEM are not necessarily good at logic. The question was of jurisdiction, and you got hung-up upon garbage.

      • (Score: 0) by Anonymous Coward on Tuesday March 06 2018, @09:43PM

        by Anonymous Coward on Tuesday March 06 2018, @09:43PM (#648724)

        They have no jurisdiction over the internet. It is paramount that nobody ever achieves such a thing. We have an absolute right to communicate without interference. Since we don't have the guns to protect those rights, we must develop the bulletproof invincible tech that nobody can shut down.