Saturday, March 17, 2018

Holtzbrinck has attacked Project Gutenberg in a new front in the War of Copyright Maximization

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 5 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:
  1. 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.
  2. 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. 
  3. 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.
  4. A major victory in the War of Copyright Maximization was the Copyright Term Extension Act of 1998.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. (added March 19) Coverage elsewhere:

5 comments:

  1. A class action in USA would be nice, but it might be hard to prove standing and a significant individual damage based on the unavailability of 19 ebooks (whose monetary cost is extremely low on the market).

    On the other hand, there's surely no shortage of horrible things such a big publisher can be sued for at least in some jurisdictions, including copyfraud and violation of moral rights. In the future we'll sure need more methods to bankrupt such publishers which become machines for mass-destruction of human knowledge, and give their assets back to the commons.

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  2. 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.

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    1. I'll have to ask my barber about copyright vs. contract law.

      As for "easily [ordering] the paper version", you might be interested to look up "parallel importation restrictions".

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  3. I looked into mirroring Gutenberg yesterday. Several hours later & ~30GB for ~110,000 items I cancelled.

    The DIR structure seemed a mess. At that rate it would have been nearly 1TB to download the collection from the "faster mirror".

    What would stop the creators wrapping up Gutenberg and saying they were now compliant? Launch newer projects that are more focused?

    Gutenberg could then become a hashtag and these things will happen without a solid entity to tie legal mumbo jumbo to.

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    Replies
    1. Great questions. Having a solid entity is a good thing, especially when you consider the preservation aspects. If you want to USE and BUILD on the works, I think you want want assurance that someone has examined the copyright issue with respect the jurisdiction that you want to use or build in. That simply won't happen for collections bound by hashtags.

      If you want to do mirroring, take a look at some of the resources in the gitenberg-dev github organization. In particular, there are lists of things you want to skip - there are a bunch of unfortunate and large audio files that have no value - and there are some things with non-open licenses.

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