“The Diary of a Young Girl” is a Dutch language diary written by the young Jewish writer Anne Frank while she was in hiding for two years with her family during the Nazi occupation of the Netherlands. Although the diary and Anne Frank’s death in the Bergen-Belsen concentration camp are well known, few are aware that the text has a complicated copyright history – one that could have important implications for the legal status and use of Virtual Private Networks (VPNs) in the EU. TorrentFreak explains the copyright background:
These copyrights are controlled by the Swiss-based Anne Frank Fonds, which was the sole heir of Anne’s father, Otto Frank. The Fonds states that many print versions of the diary remain protected for decades, and even the manuscripts are not freely available everywhere.
In the Netherlands, for example, certain sections of the manuscripts remain protected by copyright until 2037, even though they have entered the public domain in neighboring countries like Belgium.
A separate foundation, the Netherlands-based Anne Frank Stichting, wanted to publish a scholarly edition of Anne Frank’s writing, at least in those parts of the world where her diary was in the public domain:
To navigate these conflicting laws, the Dutch Anne Frank Stichting published a scholarly edition online using “state-of-the-art” geo-blocking to prevent Dutch residents from accessing the site. Visitors from the Netherlands and other countries where the work is protected are met with a clear message, informing them about these access restrictions.
However, the Anne Frank Fonds was unhappy with this approach, and took legal action. Its argument was that such geo-blocking could be circumvented with VPNs, and so its copyrights in the Netherlands could be infringed upon by those using VPNs. The lower courts in the Netherlands dismissed this argument, and the case is now before the Dutch Supreme Court. Beyond the specifics of the Anne Frank scholarly edition, there are important issues regarding the use of VPNs to get around geo-blocking. Because of the potential knock-on effect the ruling in this case will have on EU law, the Dutch Supreme Court has asked for guidance from the EU’s top court, the Court of Justice of the European Union (CJEU).
The CJEU has yet to rule on the issues raised. But one of the court’s advisors, Advocate General Rantos, has published a preliminary opinion, as is normal in such cases. Although that advice is not binding on the CJEU, it often provides some indication as to how the court may eventually decide. On the main issue of whether the ability of people to circumvent geo-blocking is a problem, Rantos writes:
the fact that users manage to circumvent a geo-blocking measure put in place to restrict access to a protected work does not, in itself, mean that the entity that put the geo-blocking in place communicates that work to the public in a territory where access to it is supposed to be blocked. Such an interpretation would make it impossible to manage copyright on the internet on a territorial basis and would mean that any communication to the public on the internet would be global.
Moreover:
As the [European] Commission pointed out in its written observations, the holder of an exclusive right in a work does not have the right to authorise or prohibit, on the basis of the right granted to it in one Member State, communication to the public in another Member State in which that right has ceased to have effect.
Or, more succinctly: “service providers in the public domain country cannot be subject to unreasonable requirements”. That’s a good, common-sense view. But perhaps just as important is the following comment by Rantos regarding the use of VPNs to circumvent geo-blocking:
as the Commission points out in its observations, VPN services are legally accessible technical services which users may, however, use for unlawful purposes. The mere fact that those or similar services may be used for such purposes is not sufficient to establish that the service providers themselves communicate the protected work to the public. It would be different if those service providers actively encouraged the unlawful use of their services.
The hope has to be that the CJEU will agree with its Advocate General’s sensible and fair analysis, and will rule accordingly. But there is another important aspect to this story. The basic issue is that the Anne Frank Stichting wants to make its scholarly edition of Anne Frank’s diary available as widely as possible. That seems a laudable aim, since it will increase understanding and appreciation of the young woman’s remarkable diary by publishing an academically rigorous version. And yet the Anne Frank Fonds has taken legal action to stop that move, on the grounds that it would represent an infringement of its intellectual monopoly in some parts of Frank’s work, in some parts of the world. The current dispute is another clear example of how copyright has become for some an end in itself, more important than the things that it is supposed to promote.
Bluesky made a major statement last week when it announced that it would be geoblocking Mississippi IP addresses from accessing its site—making it the first major social media platform to completely block access from a US state.
Unlike tech giants with vast resources, we’re a small team focused on building decentralized social technology that puts users in control. Age verification systems require substantial infrastructure and developer time investments, complex privacy protections, and ongoing compliance monitoring — costs that can easily overwhelm smaller providers. This dynamic entrenches existing big tech platforms while stifling the innovation and competition that benefits users.
We believe effective child safety policies should be carefully tailored to address real harms, without creating huge obstacles for smaller providers and resulting in negative consequences for free expression. That’s why until legal challenges to this law are resolved,we’ve made the difficult decision to block access from Mississippi IP addresses. We know this is disappointing for our users in Mississippi, but we believe this is a necessary measure while the courts review the legal arguments.
Some companies have been blocked by foreign countries, or blocked access in other countries. But geoblocking specific states had generally been limited to adult content sites in the past. This unprecedented response highlights just how unworkable Mississippi’s law really is.
Here at Techdirt, we’ve been warning about the dangerous negative consequences of age verification mandates for years. But even then there are variations in the pure ridiculousness of some of these laws. Some can be dealt with. Some are effectively impossible. Enter Mississippi’s HB 1126.
The bill is ridiculous in many, many ways. It first requires “digital service providers” (defined fairly broadly) to engage in age verification of every new user (the bill is written so badly that it’s not clear if it applies to accounts from before the bill goes into effect). If the user is deemed to be under the age of 18, the site is required to get “parental consent” before making the service available.
The parental consent requirements alone show how divorced from reality this law is. Picture this: your 17-year-old wants to join a social media platform, so now you need to:
A digital service provider shall not permit an account holder who is a known minor to be an account holder unless the known minor has the express consent from a parent or guardian. Acceptable methods of obtaining express consent of a parent or guardian include any of the following:
(a) Providing a form for the minor’s parent or guardian to sign and return to the digital service provider by common carrier, facsimile, or electronic scan;
(b) Providing a toll-free telephone number for the known minor’s parent or guardian to call to consent;
(c) Coordinating a call with a known minor’s parent or guardian over video conferencing technology;
(d) Collecting information related to the government-issued identification of the known minor’s parent or guardian and deleting that information after confirming the identity of the known minor’s parent or guardian;
(e) Allowing the known minor’s parent or guardian to provide consent by responding to an email and taking additional steps to verify the identity of the known minor’s parent or guardian; or
(f) Any other commercially reasonable method of obtaining consent in light of available technology.
So if your teenager wants to use Bluesky (or any other digital service), you might need to mail in a signed form, hop on a video call with the company, or hand over your government ID to verify you’re really their parent—all so they can post about their favorite bands or follow local news. What if the kid is estranged from their parents? What if their parents disagree over whether or not their child can use the site? How do you verify that it’s actually a legal guardian? The law is effectively silent on all that.
There’s a lot more that’s problematic in the law as well. Even if the parent gives permission, a site is still required to block kids from accessing anything deemed harmful… but also shouldn’t stop the kid from searching for harmful information. It basically demands the impossible.
And if a kid does access ambiguously “harmful” information any parent can sue and sites can face penalties of up to $10k per violation and the potential of criminal penalties as well.
NetChoice, the trade group that has been kept busy the last few years suing (and mostly winning) to stop every unconstitutional internet law, sued over this law, and, after some procedural nonsense related to last year’s Supreme Court ruling in Moody, got a temporary restraining order blocking the law from going into effect (at least against NetChoice’s members). Judge Halil Suleyman Ozerden recognized how obviously unconstitutional the law was, noting that the law was incredibly broad, was not even remotely narrowly tailored to the state’s compelling interest. Basically this law is a mess and the state has no reasonable defense:
In short, NetChoice has carried its burden of demonstrating that there are a number of supervisory technologies available for parents to monitor their children that the State could publicize… Yet, the Act requires all users (both adults and minors) to verify their ages before creating an account to access a broad range of protected speech on a broad range of covered websites. This burdens the First Amendment rights of adults using the websites of Netchoice’s covered members, which makes it seriously overinclusive. But NetChoice has also presented persuasive evidence that “[u]ncertainty about how broadly the Act extends—and how Defendant will interpret the Act—may spur members to engage in over-inclusive moderation that would block valuable content from all users,” and that not all covered websites have the ability to “age-gate,” meaning that “they are unable to separate the content available on adults’ accounts from content available on minors’ accounts.” …. This likewise renders H.B. 1126 overinclusive.
The Act also requires all minors under the age of eighteen, regardless of age and level of maturity, to secure parental consent to engage in protected speech activities on a broad range of covered websites, which represents a one-size-fits-all approach to all children from birth to age 17 years and 364-days old. H.B. 1126 is thus overinclusive as to Netchoice’s covered members to the extent it is intended as an aid to parental authority beyond the resources for monitoring children’s internet activity NetChoice has already identified, because not all children forbidden by the Act to create accounts on their own have parents who will care whether they create such accounts. See Brown, 564 U.S. at 789, 804 (holding the state act purporting to aid parental authority by prohibiting the sale or rental of “violent video games” to minors “vastly overinclusive” because “[n]ot all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games” (emphasis in original)).
This follows on what happens in basically every district court over laws like this. But, of course, Mississippi is in the Fifth Circuit, where good judicial systems go to die. What happened next perfectly encapsulates why the Fifth Circuit has become synonymous with lawless judicial activism. A month later the Fifth Circuit—with no explanation—said the law could go into effect, putting a “stay” on the TRO. No reasoning. No analysis. Just a naked power grab that ignores clear Supreme Court precedent.
NetChoice went to the Supreme Court’s shadow docket, where the Supreme Court refused to vacate the Fifth Circuit’s ruling, even as Justice Kavanaugh explained that it was pretty obvious the law was unconstitutional: We had mentioned this very odd result when it happened. Here’s Kavanaugh:
To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 (2024); Brown v. Entertainment Merchants Assn., 564 U. S. 786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). Given those precedents, it is no surprise that the District Court in this case enjoined enforcement of the Mississippi law and that seven other Federal District Courts have likewise enjoined enforcement of similar state laws.
Okay? So why are you letting the law go into effect?
… because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court’s denial of the application for interim relief.
What?!? This is judicial gaslighting at its finest. The Supreme Court has said, repeatedly, that denial of your First Amendment rights is very much a harm. But apparently, they all forgot that.
And now social media users begin to suffer. Welcome to the two-tiered internet. As Bluesky explained, there’s basically no other reasonable way to comply with this law short of blocking all users from the state:
Mississippi’s approach would fundamentally change how users access Bluesky. The Supreme Court’s recentdecisionleaves us facing a hard reality: comply with Mississippi’s age assurancelaw—and make every Mississippi Bluesky user hand over sensitive personal information and undergo age checks to access the site—or risk massive fines. The law would also require us to identify and track which users are children, unlike our approach in other regions. We think this law creates challenges that go beyond its child safety goals, and creates significant barriers that limit free speech and disproportionately harm smaller platforms and emerging technologies.
The harm is immediate and concrete. Mississippi now has a fundamentally different internet than the rest of the country—one where geography determines your access to information and communities. This is exactly the kind of balkanization that the internet was designed to prevent. The Mississippi Free Press, a fantastic independent journalism site covering news in Mississippi, has said that Bluesky has been a huge part of their distribution:
For those of us at the Mississippi Free Press, this is a significant blow. We left Twitter earlier this year for a lot of reasons, and have since made Bluesky our main social media platform (it’s also where we have the most followers).
[….]
We don’t know yet what this will mean for our ability to continue to post on Bluesky. Frankly, I’m more concerned about how this will prevent our readers who follow us on Bluesky from continuing to do so.
Think about what this means: A local news organization in Mississippi can no longer easily reach its readers through a major social media platform because of their state government’s actions. Independent journalism—already struggling—now faces additional barriers created by the very government it’s trying to hold accountable.
MFP’s news editor, Ashton Pittman has made it clear where the blame lies for this: with Mississippi’s legislators who (on a bipartisan basis) passed this terrible law:
To be clear, I'm not blaming BlueSky for this situation.I understand perfectly well WHY BlueSky is blocking access to Mississippi IPs; the state government gave them no other viable choice.We are looking into our options, of course (including VPNs).
And, yes, as with every other age-gating law that shows up anywhere in the world, all it’s really doing is promoting VPN subscriptions. The tech-savvy will route around the censorship. Everyone else—including the most vulnerable populations this law claims to protect—gets cut off.
Separately, I’ve seen some commentary regarding how this somehow goes against Bluesky’s decentralization promises, but nothing can be further from the truth. Understanding why requires grasping how the AT Protocol actually works. Bluesky is one provider on the wider Atmosphere (the rapidly growing set of services using the underlying ATprotocol). Each of those services can make their own decision of how to comply with the law here. Bluesky made this point in its explanation:
This decision applies only to the Bluesky app, which is one service built on the AT Protocol. Other apps and services may choose to respond differently. We believe this flexibility is one of the strengths of decentralized systems—different providers can make decisions that align with their values and capabilities, especially during periods of regulatory uncertainty. We remain committed to building a protocol that enables openness and choice.
This is actually decentralization working as intended. If this were Twitter or Facebook, users would have no alternatives when states make dangerous policy choices. With AT Protocol, other providers could theoretically serve Mississippi users differently (though they’d face the same impossible legal risks). More importantly, users retain their identity and social connections across different providers within the network.
The key thing to remember is that nothing in this law actually makes kids safer. Like all age verification laws, it just creates a ridiculous scenario that infringes on people’s rights, closes off portions of the open internet, and serves no purpose other than enabling legislators to pat themselves on the back and pretend they’ve done something useful.
One hopes that the legislators in Mississippi will reconsider this bad law. Or that the courts (which continue to review this law) issue a new injunction that the Fifth Circuit and the Supreme Court don’t reject.
Until then, it really sucks that the state of Mississippi has effectively decided that smaller, upstart social media sites have three awful choices: comply with the law and block all access, disobey the law and risk ruinous liability, or comply with the law by collecting a ton of extremely sensitive data and setting up an impossible and unworkable system of “parental consent” that will create a huge mess for both kids and parents. The option Bluesky took seems like the only sensible one in this scenario.
Pornhub.com geo-blocked IP addresses in Arkansas in the latest protest against unworkable age verification laws. Arkansas is the fifth state to have an age-gating statute enter force and is the fourth to be geo-blocked by the parent company of Pornhub, the Montréal-based firm MindGeek owned by Ethical Capital Partners in Ottawa. With a population of about 3 million people, the block on Arkansas adds to the growing number of blocked people in the United States — Earth’s largest consumer base for legal and consensual pornography. And, as we are seeing across the board, people aren’t happy with the block and it isn’t like these laws are going to stop people from watching porn. VPNs are gaining popularity, and not all porn sites are following these laws.
But, who is to blame for the Pornhub geo-block? Pornhub or Ethical Capital Partners? The state? It’s basic economics, folks. Generally speaking, reasonable regulations often make sense for various industries. Without government regulation, we too frequently end up with early Industrial Revolution-style labor quagmires: people get exploited, customers are at the whim of unaccountable executives, and a market ends up monopolizing. But those are general regulations that apply across the board to protect labor and customers.
There is a huge difference when regulations prevent entry or exit from a market for a variety of reasons, or when they target specific types of companies. The age verification laws in these states are textbook cases of misinformed regulation. In my time reporting on the porn industry, I have seen time and again do-gooder politicians who claim to have a moral imperative to “protect the kids.” Protecting the kids, in the eyes of such politicians, means restricting access to adult content and openly censoring otherwise First Amendment-protected forms of free speech and expression.
Arkansas Gov. Sarah Huckabee Sanders signed into law Senate Bill 66 requiring a government identification or a personal identification document to verify one’s age in order to wank. The state legislature, which is dominated by a Republican supermajority, claimed that the bill was a “bipartisan” show of concern for minors. Truthfully, this “bipartisanship” is exclusively based on a political necessity for Democrats in the minority to effect any sort of legislative change that is not blocked by the Q-anon laced policies of Gov. Sanders and her cronies in the state legislature.
It’s clear that Pornhub shouldn’t be blamed for this new development in the ongoing drama related to age verification in the United States. In a blog post, Pornhub said the reason they’re blocking entire states is the way these “new laws are executed by lawmakers is ineffective and puts users’ privacy at risk.” That’s absolutely true. The majority of these laws don’t consider the impact of potential data bloat, security risks, and other fucked-up ideas.
Also, the enforcement of these laws isn’t consistent or uniform. Given the nature of the federal system, there are clear shortcomings in the ability of U.S. states to effectively enforce these laws in an equitable manner. But what age verification laws try to do is regulate interstate commerce while lacking the constitutional prerogative to do so. Only Congress and the federal government through an act of Congress can regulate interstate commerce in ways that are presented in these age verification bills — age estimation tech, AI-assisted biometrics, and simple interventions such as requesting sensitive personally identifiable information over openly available, non-sensitive personally identifiable information that can be found via social media.
As I’ve written for Techdirt before, Pornhub and its ownership group are on record advocating for device-based age verification solutions that try to retain as little data as possible. They say so in the blog post, and a partner for Ethical Capital Partners told me the same thing several times in calls and texts throughout my reportage on the age verification push in Utah. This is additionally the case for a variety of other sites that want to comply with the law and be viewed as ethical, transparent, and responsible. But, there is no simple solution for ensuring trust and safety policies are effective on porn sites or social media platforms that permit uncensored nudity, like Reddit or OnlyFans.
Age verification laws are currently being challenged in federal district courts across the country as violations of the First and Fourteenth Amendments. The Free Speech Coalition, a trade group representing the adult entertainment industry, headlines plaintiff classes pressing courts in Utah and Louisiana to issue permanent injunctions against the implementation and enforcement of age verification laws. In Arkansas, NetChoice filed a lawsuit against the state government asking a federal judge to block the Social Media Safety Act, an age verification measure requiring a user or a parent to submit identification material in order to create new accounts. Collectively, these proposals are simply unworkable ideological statements that have little chance of surviving judicial review. Plus, it goes to show how backward conservative politicians can be on free speech topics.
The age verification law enters into force tomorrow, August 1.
Michael McGrady is the contributing editor of AVN.com.
Disclosure: The author is a member of the Free Speech Coalition. He wasn’t compensated by the coalition or its members to write this column.
A few weeks ago we wrote about how Elon Musk’s Twitter was now blocking tweets in India at the request of the government. As we noted, there’s a lot of important history here. India had demanded such blocking in early 2021 and the old regime at Twitter had pushed back strongly on it. After fighting about it, Twitter agreed to geoblock some tweets, but said it would not agree to do that for tweets from journalists, activists, or politicians.
The company also filed a lawsuit claiming that the content removal demands were an abuse of power by the Modi government. This lawsuit is still ongoing.
Of course, in the interim, Elon Musk became the owner of Twitter, and while he has kept the lawsuit going (for now), he had complained about Twitter’s lawsuit when it first happened.
When we wrote that story a few weeks ago about Elon’s Twitter agreeing to block accounts of journalists, politicians, and activists, some of Musk’s staunchest defenders in our comments insisted that the article was unfair, because Musk was doing the same thing that Twitter had done. Except that’s false. The old Twitter explicitly refused to apply the geoblocks to journalists, activists, or politicians.
Either way, Musk’s Twitter has now taken it up a notch. Not only is it geoblocking such accounts, in some cases, it has now instituted a global block. That is, Musk’s Twitter is willing to allow the Modi government to censor his critics globally, rather than just in India. The first known victim of this is Saurav Das, an investigative journalist in India.
It’s also the kind of thing that again calls into question the (always silly) claims from people that Elon Musk’s focus with Twitter has anything to do with a principled stance on free speech. That’s never been true, but this only serves to emphasize that fact.
Meanwhile, Das is trying to find out why he’s been blocked, and has filed a Right to Information application with the government to find out why his tweets were blocked, and why they were blocked globally, but doesn’t seem hopeful that he’ll find out.
A Twitter that actually believed in free speech — and not Elon’s Musk’s encapsulation of free speech as “that which matches the law” — might want to step in and help Das. Somehow I doubt that’s going to happen.
Hopefully, you will recall our discussion about one YouTuber, Totally Not Mark, suddenly getting flooded with 150 copyright claims on his YouTube channel all at once from Toei Animation. Mark’s channel is essentially a series of videos that discuss, critique, and review anime. Toei Animation produces anime, including the popular Dragon Ball series. While notable YouTuber PewDiePieweighed in with some heavy criticism over how YouTube protects its community in general from copyright claims, the real problem here was one of location. Matt is in Ireland, while Toei Animation is based out of Japan. Japan has terrible copyright laws when it comes to anything resembling fair use, whereas Ireland is governed by fair dealing laws. In other words, Matt’s use was just fine in Ireland, where he lives, but would not be permitted in Japan. Since YouTube is a global site, takedowns have traditionally been global.
But shortly after, as Fitzpatrick revealed in a new video providing an update on the legal saga, someone “high up at YouTube’’ who wished to remain anonymous, reached out to him via Discord. Fitzpatrick said the contact not only apologized for his situation not being addressed sooner, but divulged a prior conflict between YouTube and Toei regarding his videos fair use status.
“I’m not going to lie, hearing a human voice that felt both sincerely eager to help and understanding of this impossible situation felt like a weight lifted off my shoulders,” Fitzpatrick said.
Hey, Twitch folks, if you’re reading this, this is how it is done. But it isn’t the whole story. Before the videos were claimed and blocked, Toei had requested that YouTube manually take Matt’s videos offline. YouTube pushed back on Toei, asking for more information on its requested takedowns, specifically asking if the company had considered fair use/fair dealing laws in its request. Alongside that, YouTube also asked Toei to provide more information as to what and why Matt’s videos were infringing. Instead of complying, Toei utilized YouTube’s automated tools to simply claim and block those 150 videos.
The following week, a game of phone tag ensued between Toei, the Japanese YouTube team, the American YouTube team, Fitzpatrick’s YouTube contact, and himself to reach “some sort of understanding” regarding his copyright situation. Toei ended up providing a new list of 86 videos of the original 150 or so that the company deemed should not remain on YouTube, a move Fitzpatrick described as “baffling” and “inconsistent.” Toei, he concludes, has no idea of the meaning of fair use or the rules the company wants creators to abide by.
“Contained in this list was frankly the most arbitrary assortment of videos that I had ever seen,” he said. “It honestly appeared as if someone chose videos at random as if chucking darts at a dart board.”
While Matt regained control of his videos thanks to his work alongside the YouTube rep, he was still in danger of Toei filing a lawsuit in Japan that he would almost certainly lose, given that country’s laws. Fortunately, YouTube has a method for blocking videos based on copyright claims in certain countries for these types of disputes. The Kotaku post linked above suggests that this method is brand new for YouTube, but it isn’t. It’s been around for a while but, somewhat amazingly, it appears to have never been used specifically when it comes to copyright laws in specific countries.
YouTube’s new copyright rule allows owners like Toei to have videos removed from, say, Japan’s YouTube site, but said videos will remain up in other territories as long as they fall under the country’s fair use policies. To have videos removed from places with more allowances for fair use, companies would have to argue their cases following the copyright laws of those territories.
And so Matt’s review videos remain up everywhere except in Japan. That isn’t a perfect solution by any stretch, but it seems to be as happy a middle ground as we’re likely to find given the circumstances. Those circumstances chiefly being that Toei Animation for some reason wants to go to war with a somewhat popular YouTuber who, whatever else you might want to say about his content, is certainly driving interest publicly in Toei’s products, for good or bad. This is a YouTuber the company could have collaborated with in one form or another, but instead it is busy burning down bridges.
“Similarly to how video games have embraced the online sphere, I sincerely believe that a collaborative or symbiotic relationship between online creators and copyright owners is not only more than possible but would likely work extremely well for both sides if they are open to it,” Fitzpatrick said.
That Toei Animation is not open to it is the chief problem here.
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 K?ln, to represent it in Germany.
On February 9 2018, the Court issued a judgement granting essentially all of the Plaintiff’s demands.
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.
It’s been no secret that the MPAA has been sticking its nose in the copyright laws and enforcement of Australia for some time now. From pressuring government officials in the country to force ISPs to act as copyright police, to trying to keep Australian law as stuck in antiquity as it possibly could be, to trying to force the country to enforce American intellectual property law except the parts it doesn’t like, the MPAA nearly seems to think of itself as an official branch of the Australian government. Given the group’s nakedly hostile stance towards fair use, it should be no surprise that it doesn’t want to see that sort of law exported to other countries and has worked to actively prevent its installation Down Under.
It seems these efforts are not working, however, as the Australian government is currently entertaining not only adopting American-style fair use laws, but also adding exceptions to geo-blocking as well. The MPAA, as you’ll have already guessed, is not happy about this. This whole thing started with the government responding to its own Productivity Commission’s report on ways to make copyright law in the country better, so as to make Australian citizens more productive.
Two months ago the Government responded to these proposals. It promised to expand the safe harbor protections and announced a consultation on fair use, describing the current fair dealing exceptions as restrictive. The Government also noted that circumvention of geo-blocks may be warranted, in some cases.
The MPAA snapped into action, essentially suggesting in its absurd foreign trade barriers 2018 list that fair use, which the MPAA hates, works in America because our legal system has matured on copyright law in a way that Australia’s has not. Put another way, fair use is good enough for America, but Australia is not good enough for fair use.
“If the Commission’s recommendations were adopted, they could result in legislative changes that undermine the current balance of protection in Australia. These changes could create significant market uncertainty and effectively weaken Australia’s infrastructure for intellectual property protection,” the MPAA writes.
“Of concern is a proposal to introduce a vague and undefined ‘fair use’ exception unmoored from decades of precedent in the United States. Another proposal would expand Australia’s safe harbor regime in piecemeal fashion,” the group adds.
This is flatly absurd. The fair use model Australia is considering is essentially the American model, which has produced a boon of creative and educational output. What the MPAA is suggesting is that fair use should not be implemented because Australian courts haven’t produced enough caselaw to make room for it. How the country would ever pile up that caselaw without implementing fair use is an open question the MPAA doesn’t seem particularly interested in answering.
But its comments on geo-blocking relief are just plain weird. There is something of a “Nice economy you have there. It’d be a shame if something happened to it” ring to all of this.
“Still another would allow circumvention of geo-blocking and other technological protection measures. Australia has one of the most vibrant creative economies in the world and its current legal regime has helped the country become the site of major production investments. Local policymakers should take care to ensure that Australia’s vibrant market is not inadvertently impaired and that any proposed relaxation of copyright and related rights protection does not violate Australia’s international obligations,” the MPAA adds.
Based on comments like that, you would be forgiven for thinking that the MPAA had the best intentions for Australian economy at heart. Why that would be is another open question nobody seems to want to answer, likely because the obvious truth is that the MPAA doesn’t care about the Australian economy at all, it only cares about the Hollywood bottom line. It hates that fair use exists in America, so of course it doesn’t want to see it exported elsewhere. It loves exerting every kind of control over its product, so of course it doesn’t want geo-restriction laws to be relaxed.
Why the MPAA should have any say in how Australia governs itself is a mystery for the ages, but it sure seems to think its opinion on these things matters.
We’ve just written about a troubling move by Elsevier to create its own, watered-down version of Wikipedia in the field of science. If you are wondering what other plans it has for the academic world, here’s a post from Elsevier?s Vice President, Policy and Communications, Gemma Hersh, that offers some clues. She’s “responsible for developing and refreshing policies in areas related to open access, open data, text mining and others,” and in “Working towards a transition to open access“, Hersh meditates upon the two main kinds of open access, “gold” and “green”. She observes:
While gold open access offers immediate access to the final published article, the trade-off is cost. For those that can’t or don’t wish to pay the article publishing charge (APC) for gold open access, green open access — making a version of the subscription article widely available after a time delay or embargo period — remains a viable alternative to enabling widespread public access.
She has a suggestion for how the transition from green open access to gold open access might be effected:
Europe is a region where a transition to fully gold open access is likely to be most cost-neutral and, perhaps for this reason, where gold OA currently has the highest policy focus. This is in stark contrast to other research-intensive countries such as the US, China and Japan, which on the whole have pursued the subscription/green open access path. Therefore one possible first step for Europe to explore would be to enable European articles to be available gold open access within Europe and green open access outside of Europe.
Blithely ignoring the technical impossibility of enforcing an online geographical gold/green border, Hersh is proposing to add all the horrors of geoblocking — a long-standing blight on the video world — to open access. But gold open access papers that aren’t fully accessible outside Europe simply aren’t open access at all. The whole point of open access is that it makes academic work freely available to everyone, everywhere, without restriction — unlike today, where only the privileged few can afford wide access to research that is often paid for by the public.
It’s hard to know why Elsevier is putting forward an idea that is self-evidently preposterous. Perhaps it now feels it has such a stranglehold on the entire academic knowledge production process that it doesn’t even need to hide its contempt for open access and those who support it.
In these past few weeks, the world has become divided into two camps: those who are sick of hearing anything about Nintendo’s new smash mobile hit, Pokemon Go, and those who can’t get enough of it. While the media tags along for the ride and with the app shooting up the charts as the craze takes hold, it’s worth keeping in mind that this is Pokemon and Nintendo we’re talking about, two connected groups with a crazy history of savagely protecting anything to do with their intellectual property.
Still, it was strange to learn that Nintendo is issuing all kinds of takedown requests to “pirate” versions of the Android app that are available roughly all over the place. The reason I wrapped that word in quotation marks above is that the Pokemon Go app is entirely free and even the unofficial versions of the app still point the user back to the app’s official store for any in-game purchases.
Nintendo is obviously not happy with this black market distribution. Although it doesn’t seem to hurt its stock value, the company is targeting the piracy issue behind the scenes. TorrentFreak spotted several takedown requests on behalf of Nintendo that were sent to Google Blogspot and Google Search this week. The notices list various links to pirated copies of the game, asking Google to remove them.
Thus far the efforts have done little to stop the distribution. The files are still widely shared on torrent sites and various direct download services. The copies on APKmirror.com remain online as well.
So why is Nintendo engaging in a losing war against its own popularity instead of deciding to spend the time counting the money that is streaming in from its smash hit instead? Well, the speculation is that this has all to do with the geographic release windows for the app.
With no commercial gain to be had from stopping people playing the game, I’m guessing Nintendo is just trying to keep it in the hands of users in countries where Pokémon Go has been officially released. Maybe to cut back on stuff like the problems some Korean gamers are having right now.
The issue appears to be that the game doesn’t really function in countries where it hasn’t been officially released yet. This means that users of the unofficial apps in these countries are likely to find that no Pokemon exist to be collected, or are at least far more sparse than they will be once the release is official in that country. This has led to some minor frustration from those who downloaded the app from an unofficial source, as they wander around doing essentially nothing.
But so what? That isn’t really Nintendo’s problem and there’s no way that the company will take on any ill-will from those downloading unofficial copies of the game where it hasn’t been released yet. The app, keep in mind, is a free one and points to Nintendo’s in-game store for purchases whether it’s from the official app or the unofficial one. There’s literally no money lost in this in any way and, it can easily be argued, the widespread availability from many different sites may well be super-charging the viral nature of the product. That should be a huge win for Nintendo, as the company gains new and free distribution channels at zero cost.
If this is about the geo-restricted release dates, I sort of get it, but I only sort of get it because I already know how crazy-insane Nintendo is in terms of controlling every last aspect of every last product it offers. The company just can’t help itself, even when it can be argued the “pirated” apps are doing way more good than harm.
MPAA boss Chris Dodd has apparently decided to take the fairly insane stance that what’s good for the public is clearly bad for Hollywood. That’s the only conclusion that can come from the news that he’s actively campaigning against the EU ending geoblocking rules:
In a keynote address at the CineEurope convention this week, MPAA Chairman and CEO Chris Dodd described the unblocking goals as a threat to the movie industry. Encouraging participants to reach out to their representatives, Dodd described the concerns as ?real, very real.?
?While the stated goals of these proposals are laudable ? offering greater choice to European consumers and strengthening cultural diversity ? in reality, these ideas could actually cause great harm to Europe?s film industries and its consumers,? Dodd said.
Opening up more markets and more users, while having less overall friction will be bad for the film industry? Only if it’s run by complete idiots who don’t know how to take advantage of a larger market. But, I guess that’s the MPAA way!
Of course, it’s not hard to understand what Dodd is really talking about. For years, Hollywood has been able to squeeze extra money out of a convoluted and corrupt manner of territorial licensing — a system that may have made sense in a pre-modern world, but which hasn’t made any sense at all in decades. But because the Hollywood studios abuse that system for profit, often making it impossible for people to see the content they want to see (and are willing to pay for), it doesn’t want to change that system.
But, because it’s Hollywood, they have a mythical fairy tale to try to make it all make sense:
?The European Union is made up of 28 different nations with different cultures, different languages, and different tastes. Forcing every film to be marketed and released the same way everywhere, at the same time, is a recipe for failure,? Dodd said.
?The ability of filmmakers and distributors to market and release their films where, how, and when they think best gives them the greatest chance to succeed,? he added.
Of course, this is the EU where (at least while the EU lasts… as may now suddenly be in doubt…) people are able to travel freely across borders. Which means that the country you live in may not be the country you grew up in, nor match the same cultural sensibilities. And, these days, it’s entirely possible to market films through the internet to find their intended audiences. The idea that by getting rid of geoblocking you suddenly change any of the above points makes no sense. The films that are targeted in one geography can still be proactively marketed in those geographies — it’s just that they will also be available to people from those regions who now live elsewhere (again, making it accessible to a wider audience).
But, again, this is the MPAA that is so focused on locking things down and limiting consumers, it still doesn’t realize that treating its customers badly is why the MPAA is so hated.
