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.
teleread.org 
Chris’s well-written post is thoughtful and informative. As editor-publisher-founder of TeleRead, I encourage him to speak his mind, and he has obliged. That said, I vehemently disagree with him. The last thing we need is a more balkanized Internet, and if the German ruling sets the tone globally, it could help pave the way for one.
I don’t buy the argument that because copyright allows for territoriality in the licensing of rights, German law should get in the way of the public domain in the U.S. Are we really talking apples and apples? Here in the States, for example, the fair use doctrine distinguishes between commercial and noncommercial use, and so much of Project Gutenberg is of educational and literary value, as opposed to the money-making varieties.
Granted, we are not spending enough on content, I sympathize with writers and publishers in that regard, but there are better ways to address the issue, such as through more generous funding of libraries. Here in the U.S., public libraries can spend only a few dollars per capital on content of all kinds, books included. A national library endowment, anyone, and more encouragement of reading in schools? Why are we actually closing some K-12 libraries? It only worsens the problem. The average U.S. household spends maybe $100 a year on books other than textbooks, compared to several thousand on other forms of entertainment and information. But Draconian copyright law is not the remedy in the States, Germany or elsewhere—it shrinks, not grows, the universe of readers.
In a very much related vein, keep in mind that copyright law tends to be like U.S. election and tax law–often a lobbyist-crafted creation, as shown in the States by the Sonny Bono Copyright Extension Act and by similar outrages that penalize not only readers but also writers and other creative people, especially those of book-based plays and other derivative works. The German ruling in effect would give greater power to countries with harsh copyright laws. Imagine the complexities of compliance for public domain sites with limited funding. Shutting off the entire PG collection to German readers is hardly an acceptable solution.
Also, may I comment on Chris’s observation that “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”? If so, then maybe publishers shouldn’t be apoplectic over the existence of free books whose authors are long dead. By such logic, we’re not talking about a huge part of the global book revenue. Still, I think of the thousands and more likely millions of people in developing countries and elsewhere who have benefited from Project Gutenberg classics, and who probably would not have bought them instead. To imperil Gutenberg and the like is to imperil educational and cultural opportunities for the masses and perhaps actually harm the market for paid works. Gutenberg is really a book marketer in disguise. The African or East Indian who enjoys a PG freebie may go on to actually buy books.
I hope that Harvard Law School, the American Library Association, and other academic and library organizations in the U.S., Germany and elsewhere will understand the importance of this case and come to Project Gutenberg’s assistance. Same for Google and other companies with large public domain collections and an interest in a global Internet. Remember, little Gutenberg is up against a subsidiary of a giant international publishing conglomerate. Help PG, please! If Gutenberg ends up having to pay fines or other costs, I hope that Google and friends can come to the rescue.
Meanwhile I’ll reach out to Gutenberg to see if it would like to publish a post here with its side.
David
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This isn’t a question of the Internet being balkanized, it’s a question of foreign websites being able to provide content that’s under a local copyright. While Gutenberg is certainly a much worthier organization than the Pirate Bay, the principle is the same: making a work available for free in an area where it is under copyright is potentially taking business away from the local holder of those rights (and certainly taking control over whether and how that work is available away from them). Just telling people not to download it if they’re not supposed to isn’t going to cut it in that kind of situation.
Commercial vs. noncommercial purposes doesn’t really matter here, either. The Internet Archive is non-commercial, but you’re still seeing a lot of American publishers and authors getting upset over it making works available without permission through its library program. (And, conversely, Google is as commercial as it gets, but Google Books prevailed in the courts. Non-commercial fair use isn’t everything.)
This isn’t a question of German law “getting in the way of the public domain in the US,” either. The German publisher doesn’t want to do anything about its availability in the US. It just wants Gutenberg to stop making it available in Germany. Which, on the whole, they really probably ought to do.
As for giving greater power to countries with harsh copyright laws, well, they already have that power. They set the laws within their own country, after all. Nobody’s talking about letting them control what can be made available within the US.
Project Gutenberg dates back to a day when the Internet was completely non-commercial, and everything that was free could be free everywhere. I get that. In that climate, putting a disclaimer up telling people not to do bad things is adequate. But we don’t have that non-commercial free-everywhere Internet anymore. Now things people do on the Internet can affect business concerns world-wide—and books that are public domain somewhere aren’t always going to be public-domain everywhere. It’s unfortunate, but public-domain providers like Project Gutenberg are going to need to figure out a way they can comply with the copyright laws of the rest of the world, just the way commercial ebook stores and streaming video services already have. Just because you’re not commercial doesn’t mean you get a pass on violating local copyright laws.
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“Control over whether a work is available” is one of the things I find troublesome about current copyright law. My opinion (NOT a legal opinion and not in concurrence with present law) is that once a work has been published in any public way that it should be available to the public in perpetuity; the copyright holder would no longer have any right to withdraw it. Copyright law is an attempt to balance the interests of the public and the copyright holders, and I believe that withdrawing works violates the public interest to a sufficient extent that it outweighs any interest that the copyright holder might have in withdrawing the work.
Now that electronic publishing is available, there is no economic reason for anything to ever become unavailable; the cost of keeping a book available on an e-book server in case somebody wants to buy it is negligible. (I would estimate it at a few cents per year; if the company sold even one copy every ten years it would show a profit.) The copyright holder would have the choice of either offering the work at a fair market price, or relinquishing its copyright and allowing others to make it available as a public domain work. Setting a price that is far above the price of comparable works would be considered an attempt to withdraw the work and would therefore be illegal.
You are correct that this would ban limited editions as we know them. PHYSICAL limited editions would remain legal, but electronic limited editions would not. You are also correct that this would require that publishers either continue to print a book forever or produce electronic versions of everything they publish. I consider those things features rather than bugs.
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There can be good reasons to withdraw works from availability, though. For example, if it comes out that the work is libelous, or plagiarized, or simply factually incorrect. I would be inclined to say that publishers should be able to withdraw works if they need to.
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It’s not about the money. It’s about control. The German publishers have surely spent more money on the lawsuit than they will ever lose because of Project Gutenberg downloads. Future works will not be affected because US and German copyright durations are now the same.
The suit cherry-picked a small number of works that still have some economic value. There are probably many more books on Gutenberg that violate this decision, forcing them to block the entire site because they lack the resources to determine which books are affected. If this principle gets extended to other countries it will make what Project Gutenberg does impossible because the effort of complying with a crazy quilt of international laws would be prohibitive. `Not to mention that the publishers would probably bribe some small nation into creating a perpetual copyright law just to snag future public domain sites.
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The law is still the law, even if obeying it is inconvenient. If it were always convenient, we wouldn’t need law enforcement to make sure it got obeyed.
And really, there’s no need to come up with conspiracy theories positing publishers wanting control of public domain sites. The number of works that are still in copyright some places, in public domain other places, and still in sufficient demand to make it worth going to court over are probably in the two to three digits. It wouldn’t be worth it; the vast majority of their money comes from new books.
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https://en.wikipedia.org/wiki/Berne_Convention
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“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).”
The books in question are not out of copyright in the united states as the united states signed the Bern Convention.
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The US didn’t sign the Berne Convention until 1989. All these books entered the public domain in the US in the ’60s and ’70s due to the period that had passed since their publication. Once a book is in the US public domain, it can’t be yanked back out of it by subsequent adjustments to copyright terms.
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On the question of whether anyone cares about old books, the numbers say that readers do. Downloads from the Project Gutenberg website alone are between 10 and 20% of the US ebook unit sales reported by AAP. So that makes them one of the Big 6 US ebook publishers!
My take on Holtzbrinck’s attack on Project Gutenberg is that it’s part of a larger strategy to maximize copyright terms internationally. While Fischer will benefit from applying German law in this case, Macmillan will benefit from applying US copyright law to Canada and Australia, and even to the EU. https://go-to-hellman.blogspot.com/2018/03/holtzbrinck-has-attacked-project.html
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Yes, I don’t know how a foreign entity can redress a copyright infringement claim on US territory. Is this covered by DCMA?
I would expect PG at least to show some awareness of international differences in copyright. (Shouldn’t we hold them to a higher standard than other ebook distribution outlets)?
The critical thing should be why one country wants it to be blocked. Do they believe it to be obscene? Propagandistic? Offensive? Infringing? The first three questions have very squishy answers — and I would expect PG to apply US standards, but PG certainly knows about Boerne and Death + 70. That’s an objective standard. There is a technical solution to this (even if it can still be circumvented); I think the problem is that PG doesn’t want to set a precedent for carving geographic exception for ebook distribution because that would be ….hard for a nonprofit organization to manage over time.
Maybe PG feels that blocking altogether might provide an incentive for a German organization to distribution that portion of PG works that are in the public domain in Germany.
Let me ask the question differently: if a non-Boerne country had a law allowing copyright all works older than 5 years old to be public domain in that country, would American rights holder view that as fair? It would not be fair, because putting it in the public domain in one country would have the secondary effect of making it freely available in any countries which can access it over the web. You would basically be giving any country to circumvent copyright laws for people in any country.
My prediction is that Germany will be blocked until PG figures out an acceptable technical solution to this problem. It will certainly be found.
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Nobody’s talking about the foreign publisher doing anything on US territory. Did I not make that clear in the article? Do I need to revise it? They weren’t suing over it being available in the USA, where it’s in the public domain, and the court decision fully recognized that the works were in the public domain in the USA. They just wanted Gutenberg to stop making it available in Germany. Which, since they were putting it on the Internet, and the Internet is available in Germany, that does kind of fall under their jurisdiction.
So Gutenberg has blocked its site in Germany, so that none of the books that are public-domain in the USA but still under copyright there will be available there. All the books are still available for download from within the USA and (currently) anywhere that’s not Germany.
We’ve got a commercial Internet now, not the mostly-US-only college paradise we used to have in the eighties and nineties before the onset of the Eternal September. We can no longer say that putting something online in the USA is okay because it was done in the USA, and pay no heed to the effect that has on other countries. As you say, it’s one thing when it’s a “squishy” criterion like being obscene, propagandistic, or offensive. But when you get something as cut-and-dried as whether it’s in or out of copyright in a particular place, there’s just no excuse for that anymore.
Project Gutenberg is a small organization made up of volunteers, and as such I imagine it simply hasn’t had the manpower or finances necessary to implement any sort of solution more involved than slapping on disclaimers telling people not to do bad things and crossing their fingers. (Even now, Gutenberg doesn’t seem to have the finances necessary to do more than just block all of Germany from all of Gutenberg.) Unfortunately, we’re getting to the point where that’s just not going to be sufficient anymore. Publishers who legally hold the copyrights in these other countries have legitimate concerns about their rights being abrogated, and Gutenberg (and everyone else) may just have to learn to live with that.
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Does it make you uncomfortable to keep having to qualify which laws should and shouldn’t apply because they’re “squishy?” Who gets to decide that? You? Me? Saudi Arabia, Russia, China, they don’t think the laws they would like to enforce, laws that would turn your hair gray, are “squishy.”
You may have to face the fact that any legal precedent that allows Germany to censor GP will allow other countries to do so as well. You don’t get to pick and choose which laws are moral or religious matters. They do.
All other examples, Youtube, Google, iTunes, Amazon, etc, have business relationships in the countries in question. Either directly or via the sale of country-specific advertising on their websites. If GP has no servers, no advertisers, and no paying customers in Germany then allowing German law to affect their business practices is a precedent we simply can’t allow without opening the door to any country doing the same for any law they wish to enforce.
German law has to stop at the German border. If these publishers have a problem with German citizens accessing GP, then they should be suing German ISPs. It is the only conclusion that doesn’t end in private website owners slowly disappearing because they can’t navigate the quagmire that is international law.
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>They just wanted Gutenberg to stop making it available in Germany. Which, since they were putting it on the Internet, and the Internet is available in Germany, that does kind of fall under their jurisdiction.
Correct. That means if GERMANY finds something on the internet that they don’t want their own citizens to see it is their issue. The German government can filter it out by firewalling the internet coming into the country, much like China does.
If the website does not operate in Germany at all, like Project Gutenberg, the German government should have absolutely zero recourse other than blocking access to the site from German networks. If they tried this with any of my sites I would give them a stiff middle finger right up until the point that the U.S. government came out with a decision against me ( not likely ). It’s not the sites duty to be aware of every law, or even care about laws in countries that it does not operate out of, in foreign countries.
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Author’s life plus seventy-five years is insane. Who gains from this? Really? Only ever people who had nothing to do with the creation of the work. It is an artificial law pushed into existence by too-powerful lobbies like Disney.
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You won’t get any argument from me about that. I’m as much in favor of copyright reform as the next guy.
I never said the law was right. Just that it’s the law. If you plan to practice civil obedience because you feel it’s an unjust law, that’s fine—but be ready and willing to take the punishment that comes down when the courts find you broke the law.
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Wow, what a heated exchange! I would point out, as an author, that the most serious issue involved in this dispute is that countries have agreed to respect each others copyright. That’s why U.S. authors need only seek a U.S. copyright to get global protection. It’d be sheer misery to have to apply in some 190 countries.
That does, of course, create problems, particularly the differences between the more pragmatic U.S. copyright law and the more artistic European one. Date of publication, the U.S. approach is practical. If you know when a book was published, you know when the copyright expires. The European approach assumes authors are famous enough that their date of death can be easily established and their literary heirs located. In reality, even tracking down who the author was at the time of publication may be hard, much less when they died or, worst still, who inherited their literary estate.
The real problem is that there’s been no substantial revision of copyright law since the late 1970s. That means it takes no account of the widespread of availability of digital devices much less the Internet. That is a bit like having highway traffic laws in the late 1930s based on those written for the era of horses and carriages. That’s crazy.
My hunch is that there are reasons why none of the various powerful interest groups are pushing for revisions in international copyright. For the most part, that’s because their interests clash and each currently feels it benefits more from the legal confusion than from any settlement that might resolve it in ways that aren’t in their favor.
Firm and clear laws benefit everyone, including impoverished independent authors who cannot afford lawyers. Confusing, ambiguous, and outdated laws benefit most those who’re able to mount a legal challenge backed by a phalanx of high-priced lawyers.
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Um, Chris, “Verlag” is German for “Press.” So you might wanna edit your article so that you refer to it as “Fischer” instead of “Verlag.”
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@Bill: Thanks. I’ll go through Chris’s post and make the fix. David
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I see the internet becoming subversive, simply because people don’t agree with laws like this and simultaneously feel powerless to stop them. If people can’t win with votes, they’ll win with technology.
A huge part of this article revolves around the idea that posting a disclaimer is not adequate enough. But technologies like Bitcoin, OpenBazaar, LBRY, P2P VPS, BlockStack, BitTorrent, and Solid are giving people the tools to make their own decisions and take their own actions, with a disclaimer being the only thing standing between them and ‘illegal’ use. The end game I see for these technologies, is to render copyright law unenforceable if The People take enough action. Not through laws. Through technology. And that conclusion is currently sitting on the horizon.
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