The global Internet and highly territorial real world have had a number of collisions, especially where ebook rights are concerned. The most recent such dispute involves Project Gutenberg, a well-respected public domain ebook provider—in fact, the oldest. It concerns 18 German-language books by three German authors. As a result of a German lawsuit, Project Gutenberg has blocked Germany from viewing the Gutenberg web site.
The books in question are out of copyright in the United States, because at the time they passed into the public domain US copyrights were based on the period after publication rather than the author’s life. The three authors involved are Heinrich Mann (died in 1950), Thomas Mann (1955) and Alfred Döblin (1957).
As with all Project Gutenberg titles, the books could be downloaded globally; the only “restriction” is a copyright disclaimer warning users not to download the books if they are still under copyright where they live.
However, these books are still under copyright until the 2020s in Germany, where copyright is based on life + 70 years. Over the last few years, German publisher S. Fischer Verlag—a subsidiary of publishing mega-conglomerate Holtzbrinck Publishing Group, which also owns Macmillan—has filed a series of complaints with Project Gutenberg, and finally took it to court, over the availability of those books for download into Germany.
The Fischer Decision
There are a number of minor and contributing issues addressed in the decision (available in both English and German). Fischer contends that the presence of a German-language Project Gutenberg page means that Gutenberg is targeting users in Germany for its illegal copyright-violating downloads; Gutenberg says its German-language pages are meant for American users who speak German as their primary language. Gutenberg holds that it’s Fischer’s responsibility to track down German copyright violators and deal with them there, but declines to provide information on German downloaders of the works that Fischer asks for because it doesn’t keep track of that information (and the server only keeps those logs for two months). The decision also spends some time verifying that S. Fischer Verlag is the duly authorized German rights holder of the works in question.
But the main point is, does a German court have the right to enforce copyright restrictions against an American web site? The court holds that it does, citing German laws that state any unlawful act committed on the Internet “is deemed to have been committed both at the place where the offense was committed and at the place where the offense had its effect, so jurisdiction optionally applies to the place where the infringement was committed or where the legally protected interest was affected.”
So, in other words, the court holds that an American web site can be held to have violated the law in Germany, if Germans can access the infringing material. The court also seems inclined to see Gutenberg’s admonition not to download the books if they’re under local copyright as little more than a fig leaf (and even as proof Gutenberg knew that people from those areas are downloading its material).
Project Gutenberg disagrees with the German court—and on the advice of its lawyers, had declined to block the books in question until the court rendered its decision. (This did not endear it to the judge, whose decision pointed out that it wasn’t even clear whether this legal advice took German law into consideration.) Since the court has rendered that decision, and since the writing was on the wall for other German rights-holders to sue over the same issues for other such works, Project Gutenberg has blocked access to its entire web site from German Internet users, until and unless it can get the suit thrown out on appeal.
Of course, there’s no way that Germany could actually force the US-based Gutenberg to take these steps—but it’s possible that failure to do so might endanger Gutenberg’s non-profit status if the German government puts legal pressure on the American government over it. So presumably Gutenberg finds it simplest all around to comply willingly and hope for a reversal on appeal.
Should Foreign Countries Be Able to Censor Our Internet?
Given that the Internet was built from the very beginning as a global network, any attempt to retrofit territorial controls on it is necessarily going to be clunky and imperfect. Nonetheless, is the operator of the web site still obligated to try?
When territorial laws affect the global Internet, it naturally rings alarm bells—and well it should. Should a court in homophobic Russia be able to pull down American gay lifestyle web sites? Should Chinese censors be able to take down a Falun Gong web site in the US? Should a court in conservative Kentucky be able to censor liberal California? I would immediately say, “No, of course not,” and I’ll venture many of you would as well. (Though nations that have their own geo-restrictions, such as “the Great Firewall of China,” can certainly block such sites locally if they want.)
But these cases all have to do with moral or religious matters, where there isn’t an obviously “right” answer. This one, however, concerns territorial copyright. Leaving orphan works aside, matters of copyright are usually pretty clear-cut: either the copyright has expired in a given country, or it has not. And if it has not expired in one country, should an Internet site from a country where it has expired be permitted to make it available there too?
Project Gutenberg’s statement on international copyright guidance holds that is the responsibility of authorities in affected countries to pursue local remedies against copyright violators—that is to say, local authorities need to pursue people who download still-in-copyright works illegally, not come after Project Gutenberg to do their work for them.
But how realistic a position is this to take in the current international copyright climate? For all that Gutenberg’s Fischer lawsuit FAQ page takes a fairly passive-aggressive stance, insisting that Gutenberg is in the right and Germany’s judge is just wrong (and by the way, Gutenberg makes sure to add, Holtzbrinck’s subsidiary Macmillan instigated the illegal imposition of agency pricing in the US), the answer may actually not be that simple.
The Geographic Restriction Ship Has Sailed
I’m not even an American lawyer, let alone a German one, but generally speaking, the precedent here seems to be on the side of the Germans. While not quite the same issue as copyright violation, geographic publishing rights restrictions have already come down firmly on the side of restricting what regions ebook stores are permitted to sell into—even when no such restriction applies to selling and shipping physical books from one country to another.
In 2009, publishers suddenly noticed ebook vendors were selling to the whole world and forced them to impose geographic restrictions, and that precedent has carried on ever since. The matter of territoriality was complex enough that the only way author Diane Duane could be sure she was selling her backlist titles only into regions where she had the publishing rights was to start her own private ebook store and control the sales herself.
Territorial availability is a hot topic for video streaming services, too. Netflix, Hulu, and others have been forced into a game of continual whack-a-mole against the region-control-bypassing VPN services that have sprung up to let people from the wrong countries watch particular shows.
Getting back to ebook copyright, we’ve seen a few matters concerning international public domain rights spring up in recent years, too. For example, there was the Anne Frank diary rights-grab, in which one of the Anne Frank foundations attempted to extend the copyright by retroactively adding a co-author. The Wikimedia Foundation had to remove a copy of the book from its servers because it was still copyrighted under US law even though it was in the public domain elsewhere. In a post highlighting the patchwork nature of EU copyright laws concerning Anne Frank’s diary, I wondered if deceased authors’ rights holders might start tightening up on extraterritorial public-domain ebook repositories; little did I know it was already happening.
In effect, the battle to keep other regions’ copyright laws from applying to American web sites and services may already be lost.
Trouble on the Horizon for Public Domain Ebook Sites?
Project Gutenberg administrator Dr. Gregory Newby (who is named in the suit as a co-defendant) told us via email that this is the first time Project Gutenberg has ever been sued. But if anything, I’m surprised that it took this long for Project Gutenberg to get into trouble over regional rights matters.
For all that Gutenberg instructs readers not to download anything that’s still in copyright where they are, I doubt most non-US readers are going to be sufficiently expert in copyright to be able to tell at a glance whether something is or isn’t still copyrighted where they live—and even if they were, in a world where plenty of people download pirated movies, music, and games via BitTorrent, it seems unlikely most readers would cavil at breaking the law when it’s that easy. Where Gutenberg geoblocking is concerned, Germany might very well be just the beginning.
For that matter, other countries’ public domain sites may also have to worry, concerning books still in copyright in the USA but public domain there. For example, I could very easily go to the Arthur Conan Doyle listing on Project Gutenberg Australia (note: Project Gutenberg Australia is run by a separate entity that is not affiliated with the US Project Gutenberg) and download The Case-Book of Sherlock Holmes. This 1927 short story collection is still under copyright in the USA, and was the focus of the Conan Doyle estate’s unsuccessful attempt to keep other people from writing about Sherlock without buying a license. Yet, there it is, freely downloadable by anyone within the United States or anywhere else. (In fact, when I typed the title into the site’s Google search box to find the page where it was listed, the search automatically pulled up the book’s text for me instead, rendering me an unintentional copyright violator.)
I really would rather not see public domain ebook sites have to become the same morass of geo-blocking that commercial ebook stores and video streaming services are. It will just mean more trouble and expense for these sites that already provide a great public service. But given how common regional rights differences are, I’m not sure I see any way around it. It might be that the only thing that’s kept this issue from blowing up already is that relatively few people even care about books old enough to be in the public domain.
Update: Dr. Newby informs me he originally erred in his article and the correct length of German copyright is life + 70, not 75. I have corrected the text. He also points out that there are ways the German court actually could compel obedience via the US courts, so I’ve struck out that paragraph.