Project Gutenberg Blocks Access In Germany To All Its Public Domain Books Because Of Local Copyright Claim On 18 Of Them

from the worse-to-come dept

Project Gutenberg, which currently offers 56,000 free ebooks, is one of the treasures of the Internet, but it is not as well known as it should be. Started in 1991 by Michael S. Hart, who sadly died in 2011, Project Gutenberg is dedicated to making public domain texts widely available. Over the last 25 years, volunteers have painstakingly entered the text of books that are out of copyright, and released them in a variety of formats. The site is based in the US, and applies US law to determine whether a book has entered the public domain. Since copyright law is fragmented and inconsistent around the world, this can naturally lead to the situation that a book in the public domain in the US is still in copyright elsewhere. To deal with this, the site has the following "terms of use":

Our eBooks may be freely used in the United States because most are not protected by U.S. copyright law, usually because their copyrights have expired. They may not be free of copyright in other countries. Readers outside of the United States must check the copyright terms of their countries before downloading or redistributing our eBooks. We also have a number of copyrighted titles, for which the copyright holder has given permission for unlimited non-commercial worldwide use.

That approach seemed to be working, at least until this happened to the Project Gutenberg Literary Archive Foundation (PGLAF):

On December 30, 2015, PGLAF received notification that a lawsuit had been filed in Germany against it, and its CEO. The lawsuit was concerned with 18 eBooks, by three authors, which are part of the Project Gutenberg collection.

The lawsuit was filed in the Frankfurt am Main Regional Court, in Germany.

The Plaintiff is S. Fischer Verlag, GmbH. Hedderichstrasse 114, 60956 Frankfurt am Main, Germany. They are represented by the law firm, Waldorf Frommer of Munich.

The essence of the lawsuit is that the Plaintiff wants the 18 eBooks to no longer be accessible, at least from Germany. It also seeks punitive damages and fines.

Based on legal advice from its US attorneys, PGLAF declined to remove or block the items. The lawsuit proceeded, with a series of document filings by both sides, and hearings before the judges (all of which occurred in German, in the German court). PGLAF hired a German law firm, Wilde Beuger Solmecke, in Köln, to represent it in Germany.

On February 9 2018, the Court issued a judgement granting essentially all of the Plaintiff's demands.

Court's original decision (in German). [pdf]

Decision translated into English. [pdf]

PGLAF complied with the Court's order on February 28, 2018 by blocking all access to www.gutenberg.org and sub-pages to all of Germany.

The German court agreed with the publisher that since people in Germany could access Project Gutenberg files stored in the US, and freely download the 18 ebooks in question, they were making unauthorized copies in Germany, even though they had entered the public domain in the US. A recent EU-funded study showed that unauthorized copies have almost no effect on sales, and can even be beneficial, so it is likely that the German publisher in this case suffered negligible losses as a result of these downloads. This legal action is evidently more about enforcing copyright to the hilt, than about seeking redress for serious harm suffered.

The most famous among the three authors mentioned in the lawsuit, Thomas Mann, died in 1955, so his writings will enter the public domain in Germany in 2025. The fact that the publishing house is trying to stop Project Gutenberg from distributing works written between 1897 and 1920 (listed in the court documents above) shows how absurdly long the term of copyright has become -- the first modern copyright law envisaged just 14 years' protection. The lawsuit also underlines that it is always the longer copyright term that trumps a shorter one, never the other way around.

There's another important point that this case raises. As the Project Gutenberg page on the lawsuit explains:

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.

This is a classic example of the chilling effect of heavy-handed moves by the copyright industry. In order to forestall further legal action, organizations lacking resources to stand up to legal bullying often decide it is safer to over-block. In this case, the whole of Project Gutenberg is now inaccessible to people in Germany. That's a serious loss of an important public domain resource, but it's just a taste of what could become routine in Europe.

As Techdirt has reported, there is a new Copyright Directive currently working its way through the EU legislative process. One of its key elements, Article 13, is a requirement for all major sites that make user-uploaded material available to filter those beforehand to remove possible copyright infringements. Such an upload filter would not only represent a gross invasion of privacy, but could lead to sites opting to block access to users in the EU when they receive legal threats for not filtering certain material, rather than contesting the claim in court. The Gutenberg Project's experience should stand as a warning to EU politicians not to allow the copyright industry to take away people's rights to privacy and freedom of expression in this way.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, eu, geoblocking, germany, michael hart, project gutenberg, public domain, thomas mann
Companies: project gutenberg


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  1. icon
    Jeroen (profile), 7 Mar 2018 @ 8:12am

    All books still easily available in Germany....

    The problem is that determining copyright status under a life+XX regime is extremely hard. For common authors and illustrators, it may be easy to find relevant dates, but for lesser known authors, translators, writers of smaller articles , etc. such information is simply not available, meaning you may always be confronted with some claims, and the only safe course of action is to add about 150 years (100 years life expectancy, assuming an age of 20 at publication + 70 years copyright after death) to the publication date, which severly limits the appeal of the collection. (This is the approach Google follows with its scanned book archives.)

    It is my opinion that copyrights are far too long. The proper response is not to attack the publisher in question (they are just using the legal system for their profit), but to steer towards more reasonable copyright terms (say at most 30 years from first publication), that is push for political change. With this in mind, the total block also helps putting this issue on the map.

    For the affected works, they are all still easily available on the Internet Archive (https://archive.org/search.php?query=Thomas%20mann), as are many, many more. I wonder when they will be hit by a German court case. Of course, The Internet Archive foundation is much better funded, which may be the reason they first attacked Project Gutenberg to establish a precedent.

    I am not a lawyer, but wouldn't it be an idea to counter-sue in the US (where the German plaintiff clearly has a business presence) for willful obstruction of a fully legal US operation (by trying to force Project Gutenberg to pay for IP blocking services and maintaining a foreign lawyer, all things not required by US law), and claim automatic reimbursement of all costs and possible fines the foreign court my attempt to impose.

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