Editor-Publisher’s note: Why aren’t library leaders and educators everywhere caring more about the legal assault on Project Gutenberg? Listen to Eric Hellman, an ex-OCLC director and master techie! The threat isn’t just to PG. D.R.
By Eric Hellman, president of the Free Ebook Foundation
Reproduced from Go To Hellman under the equivalent of CC BY SA (read to end)
As if copyright law could be more metaphysical than it already is, German publishing behemoth Holtzbrinck wants German copyright law to apply around the world, or at least in the part of the world attached to the Internet. Holtzbrinck’s empire includes Big Five book publisher Macmillan and a majority interest in academic publisher Springer-Nature.
S. Fischer Verlag, Holtzbrinck’s German publishing unit, publishes books by Heinrich Mann, Thomas Mann and Alfred Döblin. Because they died in 1950, 1955, and 1957, respectively, their published works remain under German copyright until 2021, 2026, and 2028, because German copyright lasts 70 years after the author’s death, as in most of Europe. In the United States however, works by these authors published before 1923 have been in the public domain for over 40 years.
Project Gutenberg is the United States-based non-profit publisher of over 50,000 public domain ebooks, including 19 versions of the 18 works published in Europe by S. Fischer Verlag. Because Project Gutenberg distributes its ebooks over the internet, people living in Germany can download the ebooks in question, infringing on the German copyrights. This is similar to the situation of folks in the United States who download US-copyrighted works like “The Great Gatsby” from Project Gutenberg Australia (not formally connected to Project Gutenberg), which relies on the work’s public domain status in Australia.
The first shot in S. Fischer Verlag’s (and thus Holtzbrinck’s) copyright maximization battle was fired in a German Court at the end of 2015. Holtzbrinck demanded that Project Gutenberg prevent Germans from downloading the 19 ebooks, that it turn over records of such downloading, and that it pay damages and legal fees. Despite Holtzbrinck’s expansive claims of “exclusive, comprehensive, and territorially unlimited rights of use in the entire literary works of the authors Thomas Mann, Heinrich Mann, and Alfred Döblin”, the venue was apparently friendly and in February of this year, the court ruled completely in favor of Holtzbrinck, including damages of €100,000, with an additional €250,000 penalty for non-compliance. Failing the payment, Project Gutenberg’s Executive director, Greg Newby, would be ordered imprisoned for up to six months! You can read Project Gutenberg’s summary with links to the judgment of the German court.
The German court’s ruling, if it survives appeal, is a death sentence for Project Gutenberg, which has insufficient assets to pay €10,000, let alone €100,000. It’s the copyright law analogy of the fatwa issued by Ayatollah Khomeini against Salman Rushdie. Oh the irony! Holtzbrinck was the publisher of Satanic Verses.
But it’s worse than that. Let’s suppose that Holtzbrink succeeds in getting Project Gutenberg to block direct access to the 19 ebooks from German internet addresses. Where does it stop? Must Project Gutenberg enforce the injunction on sites that mirror it? (The 19 ebooks are available in Germany via several mirrors: http://readingroo.ms/ in maybe Monserrat, http://mirrorservice.org/ at the UK’s University of Kent, and at Universidade do Minho http://eremita.di.uminho.pt/). Mirror sites are possible because they’re bare bones – they just run rsync and a webserver, and are ill-equipped to make sophisticated copyright determinations. Links to the mirror sites are provided by Penn’s Online Books page. Will the German courts try to remove the links for Penn’s site? Penn certainly has more presence in Germany than does Project Gutenberg. And what about archives like the Internet Archive? Yes, the 19 ebooks are available via the Wayback Machine.
Anyone anywhere can run rsync and create their own Project Gutenberg mirror. I know this because I am not a disinterested party. I run the Free Ebook Foundation, whose GITenberg program uses an rsync mirror to put Project Gutenberg texts (including the Holtzbrinck 19) on Github to enable community archiving and programmatic reuse. We have no way to get Github to block users from Germany. Suppose Holtzbrinck tries to get Github to remove our repos, on the theory that Github has many German customers? Even that wouldn’t work. Because Github users commonly clone and fork repos, there could be many, many forks of the Holtzbrinck 19 that would remain even if ours disappears. The Foundation’s Free-Programming-Books repo has been forked to 26,0000 places! It gets worse. There’s an EU proposal that would require sites like Github to install “upload filters” to enforce copyright. Such a rule would be introducing nuclear weapons into the global copyright maximization war. Github has objected.
Suppose Project Gutenberg loses its appeal of the German decision. Will Holtzbrinck ask friendly courts to wreak copyright terror on the rest of the world? Will US based organizations need to put technological shackles on otherwise free public domain ebooks? Where would the madness stop?
Holtzbrinck’s actions have to be seen, not as a Germany vs. America fight, but as part of a global war by copyright owners to maximize copyrights everywhere. Who would benefit if websites around the world had to apply the longest copyright terms, no matter what country? Take a guess! Yep, it’s huge multinational corporations like Holtzbrinck, Disney, Elsevier, News Corp, and Bertelsmann that stand to benefit from maximization of copyright terms. Because if Germany can stifle Project Gutenberg with German copyright law, publishers can use American copyright law to reimpose European copyright on works like The Great Gatsby and lengthen the effective copyrights for works such as Lord of the Rings and the Chronicles of Narnia.
I think Holtzbrinck’s legal actions are destructive and should have consequences. With substantial businesses like Macmillan in the US, Holtzbrinck is accountable to US law. The possibility that German readers might take advantage of the US availability of texts to evade German laws must be balanced against the rights of Americans to fully enjoy the public domain that belongs to us. The value of any lost sales in Germany is likely to dwarfed by the public benefit value of Project Gutenberg availability, not to mention the prohibitive costs that would be incurred by US organizations attempting to satisfy the copyright whims of foreigners. And of course, the same goes for foreign readers and the copyright whims of Americans.
Perhaps there could be some sort of free-culture class action against Holtzbrinck on behalf of those who benefit from the availability of public domain works. I’m not a lawyer, so I have no idea if this is possible. Or perhaps folks who object to Holtzbrinck’s strong arm tactics should think twice about buying Holtzbrinck books or publishing with Holtzbrinck’s subsidiaries. One thing that we can do today is support Project Gutenberg’s legal efforts with a donation. (I did. So should you.)
Disclaimer: The opinions expressed here are my personal opinions and do not necessarily represent policies of the Free Ebook Foundation.
Notes:
- Works published after 1923 by authors who died before 1948 can be in the public domain in Europe but still under copyright in the US. Fitzgerald’s The Great Gatsby is one example.
- Many works published before 1978 in the last 25 years of an author’s life will be in the public domain sooner in Europe than in the US. For example, C. S. Lewis’ The Last Battle is copyrighted in the US until 2051, in Europe until 2034. Tolkein’s Return of the King is similarly copyrighted in the US until 2051, in Europe until 2044.
- Works published before 1924 by authors who died after 1948 are now in the US Public Domain but can still be copyrighted in Europe. Agatha Christie’s first Hercule Poirot novel, The Mysterious Affair at Styles is perhaps the best known example of this situation, and is available (for readers in the US!) at Project Gutenberg.
- A major victory in the War of Copyright Maximization was the Copyright Term Extension Act of 1998.
- As an example of the many indirect ways Project Gutenberg texts can be downloaded, consider Heinrich Mann’s Der Untertan. Penn’s Online Books Page has many links. The Wayback Machine has a copy. It’s free on Amazon (US). Hathitrust has two copies, the same copies are available from Google Books, which won’t let you download it from Germany.
- Thanks go to VM (Vicky) Brasseur for help verifying the availability or blockage of Project Gutenberg and its mirrors in Germany. She used PIA VPN Service to travel virtually to Germany.
- The 19 ebooks are copied on Github as part of GITenberg. If you are subject to US copyright law, I encourage you to clone them! In other jurisdictions, doing so may be illegal.
- Der Untertan (at Github)
- Die Ehrgeizige (at Github)
- Professor Unrat oder Das Ende eines Tyrannen (at Github)
- Der Vater (at Github)
- Flöten und Dolche (at Github)
- Flaubert und die Herkunft des modernen Romans (at Github)
- Buddenbrooks (at Github)
- Der Tod in Venedig (at Github)
- Der kleine Herr Friedemann (at Github)
- Tristan (at Github)
- Gladius Dei (at Github)
- Schwere Stunde (at Github)
- Königliche Hoheit (at Github)
- Tonio Kröger (at Github)
- Die Ermordung einer Butterblume und andere Erzählungen (at Github)
- Die drei Sprünge des Wang-lun (at Github)
- Die Lobensteiner reisen nach Böhmen (at Github)
- Wallenstein (at Github) 1 of 2
- Wallenstein (at Github) 2 of 2
- The geofencing software, while ineffective, is not in itself extremely expensive. However, integration of geofencing gets prohibitively expensive when you consider the number of access points, jurisdictions and copyright determinations that would need to be made for an organization like Project Gutenberg.
- (added March 19) Coverage elsewhere:
-
- Glyn Moody in Techdirt
- Chris Meadows in TeleRead
- David H. Rothman in Slashdot
- Heise.de (in German)
- Netzpolitik.org (in German)
- Comments on Project Gutenberg’s post at Hacker News
- Comments on this post at The Passive Voice
- Johannes Haupt in Lesen.net
-
Photo credit: From Doug Bowman. CC licensed.
What I want to know is, where are all the complaints and righteous indignation that many commercial ebooks can only be legally sold to certain countries in the world?
For ten years now, we’ve had geographic restrictions where the major publishers prevent ebooks from being sold to countries where they don’t have the right to publish them, even though people in those countries could quite easily order the paper version of that book to be shipped overseas to them.
Of course, you can argue that’s because ebook matters come under contract law, while the Gutenberg issue involves copyright law, but that’s just splitting hairs. Both cases involve information hosted on the global Internet, posted in a country where it is legally available. If it’s all right for a German to be able to download a free copy of an ebook that’s commercially available in his country, why shouldn’t it also be all right for him to buy an American ebook that might not even be available in his country at all? Especially since he could just as easily use that same Internet to buy a dead-tree copy of the same work with no impediment.
What’s sauce for the goose should be sauce for the gander. If all that counts is where the file is served from, it should count the same for commercial books as for public domain ones, whether the reason for it being served from there is that it’s licensed for that country or out of copyright in it. If the Internet is truly global, it should be global for everything.
LikeLike
Publishing with an electronic-based publisher like Amazon rather than a traditional publisher has advantages and disadvantages. One of the good things is that by default, anything you publish through Amazon’s own publishing branch, Kindle Direct Publishing, is available for purchase in EVERY country where Amazon operates an e-book store. (You can choose not to do that if you prefer to negotiate separate deals for international publishing.) As Amazon adds additional countries your book becomes available there as well. And unless you choose to withdraw it, your book will be there forever (or at least until the company changes its mind).
That doesn’t mean that Amazon will make any effort to promote your book in other countries. (Mostly they don’t even try to promote it in your own.) And the royalty rate that the author gets is slightly lower because of currency exchange fees. But at least a sufficiently interested reader can get the book.
LikeLike
@Chris: I’d be the first to agree on the need to tear down the barriers to international ebook commerce. But, yes, as a nonlawyer, I’ll cheerfully split hairs—in fact, do much more. Copyright law and contract law are different creatures, especially here in the U.S., where copyright exists for “the Progress of Science and useful Arts.” In a very much related vein, keep in mind that the German ruling jeopardizes public domain sites everywhere. By contrast, PG is no threat to Holtzbrinck and friends. It really really does not lessen incentives for long-dead creators to create. Rather it contributes to literacy and enlightenment in general and increases the demand for books in general.
I want to see writers and publishers thrive. But there are better ways than hyper-extended copyright terms promulgated by globalization. One strategy would be national library endowments (libraryendowment.0rg). Companies like Holtzbrinck, not just writers, would benefit.
LikeLike
@Chris I complain about this to publishers all the time. A typical reaction? “Welcome to my troll filter”! (yes, a small fantasy publisher actually told me that). We pesky readers are supposed to educate ourselves about the “complexities” of the publishing business and not whinge so much.
The more I learn about publishing industry, the more despicable it appears to me. Authors, agents, publishers: a pox on all of them! None of them has the reader (without whom they wouldn’t exist) in mind.
LikeLike
It’s even worse than you think. If this precedent stands up, the publishing industry will bribe some country or other to pass a law making copyrights last forever. Then we can say goodbye to the public domain in any way, shape, or form.
That would be a tragedy. In case you don’t know why, Spider Robinson wrote a story about it back in 1982: Melancholy Elephants. It won the Hugo Award. You can read it on Spider’s site: http://www.spiderrobinson.com/melancholyelephants.html
LikeLike
Thanks for a well researched article by “a Teleread contributor,” whoever he or she might be.
We should keep in mind that music copyright went through a similar problem just after 2000, when easily copied digital media became available for pocket-sized players including the iPod. If anything, the problem was worse, since music costs far more, per minute of consumption, than books.
When the iPod was announced, Steve Jobs offered what was perhaps the best deal that the music industry could get out of the changed environment. He bluntly told them they’d have to compete with the pirates rather than indulge in business as usual. That meant.
1. Offering guaranteed quality. A lot of bootleg music was poorly done.
2. Offering quick service. Finding a pirated song online often took more time that the saving in cost was worth.
3. Offer storage so it could be downloaded later and to new devices. When you bought, you bought for life.
4. Price songs cheaply—99 cents per song no matter how popular.
5. Sell songs individually rather than only as albums.
Others know better than I what the results were. I suspect the music industry became less lucrative but perhaps, under those new rules, more economically viable than it would have meant had it not changed to live in a world where piracy is easy.
—-
Publishing needs to do the same. It needs to come up with ways to add value so buying a legal copy in one’s own country makes practical sense. Some of the factors that Jobs suggested for music should work for ebooks, including making the ebooks look better than the PD versions and pricing those whose copyright has expired elsewhere a bit cheaper. After all, these are books that have been earning royalties for half-century or more. The costs of writing editing and publishing them have been written off long before.
It is also true, more with books than music, that improved versions with added benefits might attract customers and those additions could be copyrighted everywhere. In the 1960s Tolkien’s UK publisher made some blunders and perhaps put The Lord of the Rings out of copyright in the U.S. due to a technicality. One of the measures Tolkien took was to create a revised version, fixing mistakes and tweaking the plot slightly. Users, already partial to T0lkien anyway, had a choice between the now-flawed Ace version or the new and improved version from a legit publisher. Under pressure from readers, Ace gave up their bootlegging.
And yeah, I realize the core problem. The larger publishers are even worse than the music industry at adapting to change and thus far they’ve not had a Steve Jobs step forward to force them to adapt. That’s why Amazon has been beating the daylights out of them. That’s why they’re attempting to protect sales by extending copyright law in one country to other countries—an effort that doomed to fail in the long run. They need to adapt to change rather than fight it.
LikeLike