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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: 0) by Anonymous Coward on Monday March 05 2018, @04:25PM (6 children)

    by Anonymous Coward on Monday March 05 2018, @04:25PM (#648020)

    With the US quickly headed for corporate-bought copyright terms of "heat death of the universe plus 95 years", it's only a matter of time before this situation with Germany is reversed, with works whose copyrights have expired in more civilised countries being made available and US companies crying foul.

    I'm with PG on this: they're making the works available where the copyrights have expired at the site where they're publishing them. They've taken the time to spell out to those visiting from other jurisdictions that it's their (the visitors') responsibility to make sure that they (the visitors) don't violate local copyrights. I hope PG prevails. I further hope that if they do prevail, the US courts are consistent in their decision down the road when the shoe is on the other foot.

  • (Score: 2) by FakeBeldin on Monday March 05 2018, @05:25PM (5 children)

    by FakeBeldin (3360) on Monday March 05 2018, @05:25PM (#648049) Journal

    I hope PG prevails.

    Frankly, I doubt it.

    Copyright is about who is allowed to distribute a work. PG is clearly distributing a work. Now one country's copyright law would only affect that country. But PG has demonstrated (e.g. with this block) that it is possible for them to differentiate between countries. So at best, PG continuing to distribute works in places where that copyright has not expired is an oversight on the part of PG.

    Basically: they can choose not to distribute works to certain places, so what's their excuse for distributing works to those places?

    Moreover, the Berne convention seems to require that all other signatories "recognise the copyrights held by citizens" (from Wikipedia).
    In this case, if the works fall under German copyright, then all other signatories would be required to recognise that. That is, *if* a work falls under German copyright, then its copyright in the USA is "life+70", not the normal US term.

    At least, that's how I read this stuff. But IANAL, so don't use this post for legal advice.

    • (Score: 0) by Anonymous Coward on Monday March 05 2018, @06:50PM

      by Anonymous Coward on Monday March 05 2018, @06:50PM (#648088)

      Basically: they can choose not to distribute works to certain places, so what's their excuse for distributing works to those places?

      Not operating in those places is their reason. No one needs "excuses" here.
      Chinese government does its censorship inside China and does not presume to apply their laws inside USA; German government is to be doing likewise.

    • (Score: 3, Informative) by curunir_wolf on Monday March 05 2018, @08:14PM (2 children)

      by curunir_wolf (4772) on Monday March 05 2018, @08:14PM (#648138)

      I thought the copyright term in the US was, in fact, life of the author + 70 years. In fact, that's what it states.

      So I don't understand why some works have a longer term in Germany.

      Section 302 [cornell.edu], and Section 303 [cornell.edu].

      --
      I am a crackpot
      • (Score: 0) by Anonymous Coward on Tuesday March 06 2018, @10:43AM

        by Anonymous Coward on Tuesday March 06 2018, @10:43AM (#648442)

        Works that had already entered the public domain stayed there, even when US copyright was extended back past their creation date.
        There was also a period where US copyright required registering with the Library of Congress, foreign copyrights from then might not be recognised if they were never registered.

        It is also possible to explicitly declare public domain something of which you own the copyright, but I don't think that's what is happening here.

      • (Score: 3, Informative) by Pino P on Tuesday March 06 2018, @05:57PM

        by Pino P (4721) on Tuesday March 06 2018, @05:57PM (#648592) Journal

        For works published in 1923 through 1977 and works made for hire, the U.S. copyright statute assigns a nominal "life" of 25 years after first publication or 50 years after creation, whichever comes first. If an author lived for less than 25 years after publication, the copyright would expire in Germany before it expires in the United States. If an author lived for more than 25 years after publication, the copyright would expire in the United States before it expires in Germany.

        In addition, while the copyright term extension of the 1990s restored copyright in works whose copyright had expired in Germany, it did not do so in the United States. All works published prior to 1923, other than sound recordings, entered the public domain in the United States on or before January 1, 1998, and stayed there.

    • (Score: 2) by frojack on Monday March 05 2018, @08:48PM

      by frojack (1554) on Monday March 05 2018, @08:48PM (#648160) Journal

      But PG has demonstrated (e.g. with this block) that it is possible for them to differentiate between countries.

      They've done no such thing.

      It's at best a half hearted attempt at compliance, which they know can be beat with any approximation of a VPN. At best they've said they (PG) won't be knowingly involved, but they didn't take any measures to be "knowing".

      Also, life+70 IS the normal US term, but it doesn't apply to older books. https://www.copyright.gov/circs/circ15a.pdf [copyright.gov] as properly cited in the PG page.

      You said:

      Moreover, the Berne convention seems to require that all other signatories "recognise the copyrights held by citizens" (from Wikipedia).

      You cited Wikipedia, which no responsible legal citation would ever do, and no direct link so that we could check you weren't using it out of context.

      PG on the other hand pays actual copyright lawyers who found:

      The 18 eBooks are all in the public domain in the US, and have been for many years. Copyright status in another country is not relevant to the legitimate ability of Project Gutenberg -- or anyone/anything in the US -- to make any use of these books.

      Oddly enough, if you go the the PG page about this whole issue: https://cand.pglaf.org/germany/index.html [pglaf.org] and start clicking on their links to some of these books, a fair number of them are NOW not found. So it seems that the situation may be more fluid than it seems.

      --
      No, you are mistaken. I've always had this sig.