Wikimedia Takes Down Diary Of Anne Frank, Uses It To Highlight Idiocy Of DMCA Rules, Copyright Terms

from the what-a-mess dept

We’ve written a few times about the copyright status of the Diary of Anne Frank lately, mainly because it’s pretty clear that the original work was supposed to enter the public domain in Europe on January 1st of this year, as it was 70 years after Frank’s tragic death. However, the copyright holder, The Anne Frank Fonds organization in Switzerland has been trying to claim that the work is still under copyright, and that Anne’s father, Otto Frank, is a co-author of the work. Either way, the work is not in the public domain in the US, because the US (ridiculously) grants copyrights for an even longer term than Europe.

The latest is that the Wikimedia Foundation has announced that it has removed a Dutch-language version of the text — and used the removal as a chance to highlight some of the ridiculousness of the DMCA:

We took this action to comply with the United States’ Digital Millennium Copyright Act (DMCA), as we believe the diary is still under US copyright protection under the law as it is currently written. Nevertheless, our removal serves as an excellent example of why the law should be changed to prevent repeated extensions of copyright terms, an issue that has plagued our communities for years.

Specifically, Wikimedia notes that, as a US company, it’s under the jurisdiction of US law, and the DMCA includes a provision on “red flag” knowledge, that says if you are aware of infringing material, and you do not take it down, you may be liable. Thus, it removed it, even though it did not receive a specific DMCA takedown notice.

Based on email discussions sent to the Wikimedia Foundation at legal[at], we determined that the Wikimedia Foundation had either “actual knowledge” (i in the statute quoted below) or what is commonly called “red flag knowledge” (ii in the statute quoted below) that the Anne Frank text was hosted on Wikisource and was under copyright. The statute section states that a service provider is only protected by the DMCA when it:

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(The rest applies when we get a proper DMCA takedown notice.)

Of particular concern, the US? 9th Circuit Court of Appeals stated in their ruling for UMG Recordings, Inc. v. Shelter Capital Partners LLC that in circumstances where a hosting provider (like the Wikimedia Foundation) is informed by a third party (like an unrelated user) about infringing copyrighted content, that would likely constitute either actual or red flag knowledge under the DMCA.

We believe, based on the detail and specificity contained in the emails, that we received that we had actual knowledge sufficient for the DMCA to require us to perform a takedown even in the absence of a demand letter.

There is, admittedly, a fair bit of controversy over the whole “red flag knowledge” concept, with different courts ruling different ways. However, you can understand why Wikimedia might not want to take the risk when there’s a very real chance a ruling could come down against them. Even if you disagree with the appropriateness of the whole “red flag knowledge” concept or its application here, you have to respect Wikimedia’s decision not to set itself up to be a sacrificial lamb in a case that it could very well lose.

However, it does give Wikimedia a chance to rail against ridiculous copyright term extensions, especially those that are retroactively applied or which are used on foreign works that should be in the public domain:

However, in the United States, the Anne Frank original text will be under copyright until 2042. This is the result of several factors coming together, and the English-language Wikipedia has actually covered this issue with a multi-part test on its non-US copyrights content guideline.

In short, there are three major laws that together make the diary still copyrighted:

  1. In general, the U.S. copyright for works published before 1978 is 95 years from date of publication. This came about because copyrights in the U.S. were originally for 28 years, with the ability to then extend that for a second 28 years (making a total of 56). Starting with the 1976 Copyright Act and extending to several more acts, the renewal became automatic and was extended. Today, the total term of works published before 1978 is 95 years from date of publication.
  2. Foreign works of countries that are treaty partners to the United States are covered as if they were US works.
  3. Even if a country was not a treaty partner under copyright law at the time of a publication, the 1994 Uruguay Round Agreements Act (URAA) restored copyright to works that:
    • had been published in a foreign country
    • were still under copyright in that country in 1996
    • and would have had U.S. copyright but for the fact they were published abroad.


Court challenges to the URAA have all failed, with the most notable (Golan v. Holder) resulting in a Supreme Court ruling that upheld the URAA.

What that means for Anne Frank?s diary is unfortunately simple: no matter how it wound up in the United States and regardless of what formal copyright notices they used, the US grants it copyright until the year 2042, or 95 years after its original publication in 1947.

Under current copyright law, this remains true regardless of its copyright status anywhere else in the world and regardless of whether it may have been in the public domain in the United States in the past.

It’s unfortunate that this is what the law is and that the chilling effects this has is hiding away an important piece of cultural history. But, at the very least, let it be yet another reminder that copyright reform requires a major change to copyright terms, and retroactive expansion of copyright terms is a concept that should never have been allowed.

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Comments on “Wikimedia Takes Down Diary Of Anne Frank, Uses It To Highlight Idiocy Of DMCA Rules, Copyright Terms”

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Anonymous Coward says:

Re: Re:

Thankfully, the U.S. Constitution is not under copyright, so Wikipedia has an answer for your question:

Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutional ex post facto laws. [20]

Since copyright is a civil matter (even if some infringements can lead to criminal charges), they get away with it.

Anonymous Coward says:

Re: Re:

Well, the constitution says for a limited time. While retroactive extensions may technically still be for a limited time, hence following the letter of the law, they certainly violate the spirit of the law. But you know industry and government, they will argue the letter of the law when it favors them and then they will argue the spirit of the law when it favors them as well. They will come over here and say that using a technicality to violate the spirit of a copy protection law, such as what Aereo may have tried to do, regardless of whether or not they are violating the letter of the law, should still be illegal and punished. But then they will turn around and claim that violating the spirit of the law through retroactive extensions that effectively make copy protection last forever, but not violating the letter of the law because they last forever minus one day, is still perfectly fine.

Such hypocrites. They neither care for the letter nor the spirit of the law (nor for the artists nor for the public nor for the quality of available works), only for themselves. Everything else is just a red herring.

It should also be noted that the spirit of the law that regulates broadcasting spectra is not to serve the public interest. Indeed, it is not the public that exercises and hence benefits from these laws but big giant broadcasters that use these laws to stop competitors. They are the ones that use broadcasting monopoly laws to tell me that I can’t broadcast on a given spectra and then they further use these laws to prevent me from freely recording and redistributing signals that have crossed my private property, signals that I have every natural and moral right to freely record and redistribute as I see fit. Just like I have every natural right to broadcast on whatever spectra I see fit as I see fit. These laws were intended for their interests not the public interest. This is supposed to be a democracy, government should pass laws intended to serve the public. They should regulate spectra only in the public interest. That broadcasters are the ones that utilize and benefit from these laws tells me who these laws are intended to serve. and the tragedy of the commons claim is just a red herring imagined by cartels that just want a government monopoly. To the extent that the tragedy of the commons claim is valid the laws governing broadcasting to reduce the tragedy of the commons should not be laws that are used by a select few broadcasters against everyone else. Such laws are intended to serve those select few against the public interest or else they wouldn’t exclusively be so exclusive to such a small group of people for use. The alleged justification for those laws, such as the tragedy of the commons, is just a red herring.

Mason Wheeler (profile) says:

Re: Re: Re:

Well, the constitution says for a limited time. While retroactive extensions may technically still be for a limited time, hence following the letter of the law, they certainly violate the spirit of the law.

Those are two separate things. The Constitution says that congress MAY create copyright laws for limited times, but it also says that Congress MUST NOT create any retroactive law (on any subject, including copyright). So how does retroactive term extension survive even the most cursory judicial review?

Suomynona (user link) says:

Re: Re: Re:3 Re:

“They can’t prosecute you for spitting on the sidewalk before the law was passed. Only after.”

Almost. They can still attempt to prosecute you — you can be sued for anything and brought up before the court and be forced to listen to your (potential) charges.

Now any judge or pre-hearing should immediately laugh the case out of court, but that’s a completely different matter. It’d be a waste of time, money, and resources, but if you happen to spit right as the emperor turns a corner and steps in it, I’m sure they’d make an exception to the potential waste of funds. After all, that’s what your taxes are for.

Anonymous Coward says:

Re: Re: Re: Re:

I’m curious – If Congress is enjoined against creating any retroactive law, how does that apply to retroactive immunity for telecoms conducting surveillance? Given that that has become law, wouldn’t that mean that either the Constitution doesn’t provide an absolute either by word or by interpretation?

Robert Beckman says:

Re: Re: Re:2 Re:

Retroactive immunity is like any other immunity agreement – it makes you immune from prosecution by the government.

This probably doesn’t mean that a tort is protected, but you’d have a hard time proving that a company giving the government their own business records is a tort against you, so you’re still out of luck.

In other words: laws can’t add new restrictions to already completed acts, but they can bind the government into not acting on prior violations of the law.

Wendy Cockcroft says:

Re: Re: Re: Re:

That’s what happens when you play along with the maximalists and allow them to get away with referring to copyright as property. Once they get people to believe it is property, they demand it be treated like property.

Result: ever-increasing monopoly term extensions to complete the task of converting a temporary privilege into a permanent property right.

That One Guy (profile) says:

Re: Re: Re:2 Re:

Once they get people to believe it is property, they demand it be treated like property.

In some cases yes, in other cases no. For example, people pay taxes on their property based upon the worth of said property, with the property seized if the taxes aren’t paid. If the maximalists really want copyright to be considered property, and claim that a single song is worth tens of thousands of dollars if not more, it seems to me they should be paying a hefty sum on a yearly basis lest they want to lose their ‘property’.

It’s also not up to the government to find out what property you do and do not owe taxes on, but the one paying the taxes, and as such registration would be required as well so that the government would be able to know that copyright owners were paying all the taxes owed.

They want to call it property, and have it treated as property in some cases, but by no means all, similar to how they like to call copyright infringement ‘theft’ or ‘stealing’ as an emotional plea but would never want it to be legally treated as theft/stealing.

David says:

It's not that bad.

Hitler’s “Mein Kampf” is now in the Public Domain, so you can educate yourself from a different view point while you wait for the Diary of Anne Frank to become free to read.

If you do this diligently and follow the reasoning given there, you’ll be able to deduce that it is the Jewish World Conspiracy which denies you access to Anne Frank’s diary.

Of course, that’s Hitler logic, but it’s not actually all that much more absurd than an “Anne Frank Foundation” doing its utmost to stop Anne Frank’s Diary from getting freely circulated.

David says:

Re: Re: It's not that bad.

Once the industrial age required accumulation of money for founding factories, many facilities and corporations were “traditionally owned by Jews” since the Jews were traditionally (through many centuries and the Middle Ages) forbidden almost any “honorable” job and worked as peddlers, moneylenders, lawyers.

Jews were the face of capitalism when it first swept all power in Europe and elsewhere. Lawyering as one unpopular face of corporate power and property grab was also seen in strong association with Jewry. The Europe-wide boil of antisemitism was popping up everywhere. That was the sentiment culminating in Hitler’s “Mein Kampf” scapegoating.

Corporatism is not exactly making itself popular these days either, but it’s no longer being associated with religion or genetics. Outside of continental Europe, ownership demographics did not change as dramatically as genocide and seizure caused elsewhere.

So “Disney was traditionally owned by Jews” is still sort-of synonymous with “Disney is a cesspool of monetary interests”. “traditionally owned”, however, is shifting towards ownership by companies (rather than individuals) from countries with an export surplus.

Money has become its own religion and World Conspiracy.

Anonymous Coward says:

Re: Re: Re:

It’s no longer available to read on that website, where many people are looking for it, right? Thus it is hidden away.

Yes, people can purchase it or find it in other places, but putting up barriers is a form of hiding it from at least some element of the population.

Taking down one infringing copy of a work that is WIDELY AVAILABLE OTHERWISE isn’t hiding it away. This particular piece of “cultural history” can be found very easily. Do you really think the people who knew it was on this one site but later saw it wasn’t there will have trouble finding it? Do they not know how to use a search engine? Is just too complicated for them? They know how to find it. It’s incredibly easy to find it. Protip: You really come across as disingenuous with this stuff. It’s why so many people just don’t take you seriously.

Derek Kerton (profile) says:

Re: Re: Re: Re:

Your kind of thinking is that what causes unrest. You believe the natural state of information is locked up, and available for a fee. With that line of thinking, the Diary of Anne Frank is easily findable, acceptably available, and offered fairly.

But your premise is absolutely incorrect. The natural state of information is shareable, and freely passed from one human to another.

Now, through our laws, we DO agree to a temporary injunction on that natural shareability. For the sake of generating more content (by offering incentives to creators), we grant them a market-breaking monopoly on that content for a time. But, after that reasonable period of time, we expect the content to enter the public domain.

A “reasonable period of time” can be debated, but it is definitely shorter than life plus 70 years. The mechanism of incentivizing authors could easily be achieved with monopolies as short as 10 years – but I’ll even concede you “life” at the extremely long side of the reasonable spectrum. But Anne Frank is dead.

In this context, the Diary is most certainly “hidden away”. Removed from hundreds of free sites like WikiMedia, out of reach for billions who lack the ability or desire to pay the going price. The number of places that Diary is available is easily an order of magnitude less under Copyright than it is in Public Domain. It has been stolen from the Public Domain, and hidden to billions of people. You act like that is nothing — like Mike is disingenuous to say it’s hidden. Not even close. Mike could have gone further and said it was stolen from the people, and still been ethically correct, but unfortunately wrong in a court.

To summarize, your position is against the natural order of things, not Mike’s. And yes, the Diary is now hidden. Maybe one can freely “find” it, but they can’t then read it without being robbed…andfor a book, reading, not finding, is kinda the whole point.

Anonymous Coward says:

Dastar - attribution

How can you know if a public domain work has been taken out of the public domain, if the public domain work does not require attribution?

If Anne Frank’s Diary had been reprinted without attribution because it was in the public domain, how would you know that it was taken back out of the public domain if you didn’t know who to attribute it to in the first place?

Ginsburg thinks you can rip the label off of a mattress, but you don’t own the mattress.


The Court reasoned that although the Lanham Act forbids a reverse passing off, this rule regarding the misuse of trademarks is trumped by the fact that once a copyrighted work passes into the public domain, anyone in the public may do anything they want with the work, with or without attribution to the author.

…claims about authorship cannot be used as an end-run around the underlying philosophy of a time limit on exclusive ownership of a copyright or patent. Allowing such restrictions on a public domain work would, Scalia wrote, “create a species of mutant copyright law that limits the public’s ‘federal right to “copy and to use”‘ expired copyrights,” and would effectively create “a species of perpetual patent and copyright, which Congress may not do”

Justice Ginsburg rejected any vested rights that petitioners’ claimed, reasoning that “no one, after the copyright term has expired, acquires ownership
rights in the once-protected works.”

Anonymous Coward says:

Re: Re: Regarding the "retroactive" copyright extensions and ex post facto

If the law was intended for authors, and not publishers and distributors, the law should not have been retroactively applied to distributors that have already bought a work. That’s bad for authors.

But everyone knows that just about every aspect of copy protection law today is almost only intended for the distributors and not the authors.

For instance the one sided penalty structure.

“This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down. This allows for copyright holders to send out take-down notices without incurring much liability; to get the sites back up, the recipients might need to expend considerably more resources. Section 512(f) makes the sender of an invalid claim liable for the damages resulting from the content’s improper removal, including legal fees, but that remedy is not always practical.”

So authors that have works falsely taken down have less protections than distributors that have works infringed upon. The laws were obviously intended for the distributors and not the authors.

Wyrm (profile) says:

Re: Regarding the "retroactive" copyright extensions and ex post facto

“Under current copyright law, this remains true regardless of its copyright status anywhere else in the world and regardless of whether it may have been in the public domain in the United States in the past.”

… And it did, though not in this particular case. (The diary of Anne Frank had never been in public domain by the time of those extensions.)
I don’t remember exactly when, but I’ve read an article detailing some of the works that were in public domain but got copyright re-assigned to them by those extension acts.

So, sorry but you don’t even have an argument here, regardless of whether you were serious about it or not.

Wendy Cockcroft says:

Re: Regarding the "retroactive" copyright extensions and ex post facto

Yes they were. During the Rememberance period last year various organisations struggled to get permission to publish letters from soldiers, etc., because orphan works are treated the same way as claimed works. TD wrote about it:

Wesley Parish says:

How does Anne Frank benefit from this postumous copyright extension?

That’s one thing the copyright extension freaks so far have failed to answer. How does a posthumous copyright extension? Given that the proclaimed purpose of copyright in the US Constitution is to encourage writers etc to keep on producing new works by rewarding them for their current and previous works, how is Anne Frank being currently rewarded by this posthumous copyright extension? There is a test for that – how many new works has she produced every since her diary was published?

the sad fact she is dead should not prevent her from producing new works if … (I’ll let you fill in the rest. It should be easy enough 🙂

Coyne Tibbets (profile) says:

Re: How does Anne Frank benefit from this postumous copyright extension?

Anne Frank won’t. But as the lie goes, this is to protect her heirs, which will thereby continue to profit after her death.

But that is a convenient lie, because the extension has nothing to do with heirs. It is a subterfuge, to allow extension of the time corporations can control the work after her death. That way, it is supposedly “worthwhile” for the corporation to buy her work, which would otherwise be, according to them, “be worthless upon her death.”

But that also is a lie, because the corporations generally have no intention of profiting from such works; typically these will sit on a shelf and gather dust. They are removed from the marketplace and therefore do not compete against the works offered by the corporations.

That is what this is really about: these extensions are nothing but the corporations enforcing their monopoly of the marketplace, to prevent past works from competing with the present.

Diary of Anne Frank might be an important work to some. But from the corporate view, it’s just another work of the past, stealing from the profitable present. It must be controlled, same as any other competitor.

David says:

Re: How does Anne Frank benefit from this postumous copyright extension?

Anne Frank benefits from poetic justice. The Nazis prosecuted the Jews claiming that they were unsalvageably greedy bastards without morals. And while Anne Frank did nothing deserving this stereotype, the Anne Frank foundation tasked with making people remember her awful fate and thus make them heed humanity, instead gets to show themselves as unsalvageably greedy bastards without morals.

Anne Frank may not have known what she had to die for, but the Anne Frank foundation sure does.

Coyne Tibbets (profile) says:

Liberal trash

The cynic in me says it’s a waste of time for Wikimedia to try to make a point with a work like Diary of Anne Frank. Given the vicious disfavor accorded “libtard” values these days, commentators are more likely to give huzzahs at the removal of another piece of “liberal trash” from the public eye.

Wikimedia would have had more luck with Mein Kampf.

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