This page provides information about a lawsuit which was brought against the Project Gutenberg Literary Archive Foundation (PGLAF, the organization that operates Project Gutenberg) and its Director & CEO, Greg Newby.
Q: What is Project Gutenberg's basic approach to international copyright issues?
A: Please see our summary, which is based on decades of legal guidance and was verified as being correct by our US lawyers. Further items below build on those notions.
Q: Why didn't Project Gutenberg simply remove the items?
A: The is no reason to remove them. The 18 eBooks are all in the public domain in the US, and have been for many years. Copyright status in another country is not relevant to the legitimate ability of Project Gutenberg -- or anyone/anything in the US -- to make any use of these books.
Q: Why didn't Project Gutenberg block access until the Court made its judgement?
A: PGLAF's legal advisors disagree that any foreign Court or entity has jurisdiction over its actions regarding copyright. The Court in Germany has promoted a theory that it has jurisdition, mainly because the www.gutenberg.org site has some content in the German language. The view of PGLAF is that it is up to the rights owner in Germany to identify people there who are infringing on its copyrights, and pursue remediation there. It is not up to PGLAF to police or defend the rights of entities in different countries. Because PGLAF is a legitimate non-profit organization, however, it is appropriate to act as the German Court ordered - pending appeal - even though it disagrees with the order.
Q: So the court thinks that the presence of content in German means that courts in Germany have jurisdiction, regardless of the fact that PGLAF is entirely in the US?
A: Yes, that was the original basis of the claim for jurisdiction, which the Court accepted in their judgement. Since then, there some more recent decisions in the European Court of Justice, and other German courts, that support this theory based on a Web site being accessible from a country. Those other cases involve companies that actually operate (for-profit) in Europe, and cases between two European countries (i.e. part of the EU). They are not consistent with prior laws and cases, even in Europe, and also not consistent with provisions of the Berne Convention and other international law.
In addition, PGLAF has pointed out that Germany is widely spoken in the US (the third-most common second language), and also is widely taught in schools and colleges. PGLAF has no actual presence or activity in Germany.
Q: Who are the authors? Why are they copyrighted in Germany, but not the the US?
A:
Q: What are these 18 books, when were they originally published, and when did Project Gutenberg add them to its collection?
Heinrich Mann. 6 titles.
Thomas Mann. 7 titles, 8 Gutenberg eBooks.
Alfred Döblin. 5 titles.
Q: The Project Gutenberg terms of use, and header, and license, say that people outside of the US should check the laws in their country before downloading. Isn't that enough?
A: PGLAF received legal advice from our US lawyers that it is enough. The header and other legalese has been updated over the years, ever since the first version of the Project Gutenberg License in 1993, to reflect changes in the legal landscape.
Q: How many times were they downloaded in Germany?
A: That is unknown. The Court has ordered that download records for the 18 items be provided (i.e., Web server logs), but PGLAF informed the Court that no such records exist. Like many libraries, especially since introduction of the US PATRIOT act in 2001, PG does not retain Web logs or any other access/download statistics that might identify individual users or IP addresses. This is to protect reader's privacy, in the event of seizure of log files. PG retains logs just for a few months, for diagnosis of problems and producing summary statistics. The summary statistics do not identify user IP addresses or geographic location.
Q: If they were downloaded in Germany, was that definitely a violation of copyright?
A: That is unknown. In the US, and many other countries, there are a variety of situations where people may legitimately and legally make use of digital copies of books. Fair use (or fair dealing) is one example, as are some types of educational use, use for reviews/quotes, and some types of research. It also may be that someone in Germany who owns a printed copy, or a duly licensed eBook, could also utilize the same eBook via Project Gutenberg. These are examples where accessing the eBook at Project Gutenberg from Germany might not be a violation of any applicable copyrights in Germany. As mentioned, however, there is no evidence that anyone in Germany ever downloaded those 18 items (other than Plaintiff), whether or not it was a violation of German copyrights.
Q: The judgement devotes around half of its pages to the Plaintiff's assertation that they own the copyrights. Why is that an issue, and is it settled?
A: Plaintiff does not have adequate records to support their claim that they are the exclusive owner or licensee of copyrights for the 18 items. In fact, some of the licensing agreements presented to the Court were signed after the lawsuit was filed! The Court allowed multiple iterations of the Plaintiff, including hearings, to prove they were actually a rights-holder.
Irregularities and gaps remain, and will be revisited during the appeal. There are at least two major concerns. One is that the original printed books were published between 1897 and 1920, sometimes by other companies that were subsequently acquired by Plaintiff. Plaintiffs have never produced evidence of continuous ownership of the rights, to those original printed books that Project Gutenberg digitized. Or, that the "community of heirs" (the English translation referring to the family of the authors) duly inherited the rights, and can thereby assign them to the Plaintiff. The Court did not require demonstration of rights at the outset of the lawsuit, and PGLAF is not convinced that Plaintiff actually has rights to any of the 18 items.
The second major concern is that the Project Gutenberg eBooks were, for some of the 18 items, published by Project Gutenberg prior to the rights contracts that Plaintiff presented. And, in any event, all were published by PG long after those items had lost copyright protection in the US, and therefore rights were owned by the American people (i.e., that is the definition of "public domain"). This calls into question claims of "worldwide" rights, which Plaintiff seems to rely on for asserting control over PGLAF's activities in the US.
Q: What does the judgement say must be done? Are there fines or penalties?
A: The full judgement (original German, and translated into English) are linked above. Basically, the Court granted all of the Plaintiff's demands:
Q: Why block all of Germany, rather than just those 18 books?
A: PGLAF's legal advisors disagree with all claims that there must be any blocking, or removal, or anything associated - censorship, fines/fees, disclaimers, etc. - for items that are in the public domain in the US. Period.
Because the German Court has overstepped its jurisdiction, and allowed the world's largest publishing group to bully Project Gutenberg for these 18 books, there is every reason to think that this will keep happening. There are thousands of eBooks in the Project Gutenberg collection that could be subject to similar over-reaching and illigitimate actions.
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.
Q: The plaintiff is S. Fischer Verlag, GmbH. Is that the international conglomerate?
A: Yes, it is part of a family of companies all under single ownership and control or majority stakeholdership, from Germany, reaching around the world. S. Fischer Verlag, GmbH is a unit of Verlagsgruppe Georg Holtzbrinck GmbH. Internationally it is known in the US and elsewhere as Holtzbrinck Publishers LLC. Readers in the US know this as Macmillan, which is one of the largest publishers in the US by revenue, and owns many familiar imprints. US readers might also recall that Macmillan was one of four companies accused by the US Dept. of Justice in 2012 of price fixing. The companies eventually settled the antitrust claims, including by giving credits to customers who had overpaid for eBooks.
Q: Why did this all take place in the German Court system, rather than the US - where Plaintiff does business as Macmillan, and PGLAF is based?
A: The legal guidance PGLAF received is that US law requires that such proceedings would have taken place in the US, and in fact any attempts at enforcement of the judgement would need to occur in the US Court system. PGLAF already informed Plaintiff and the German Court that the US Court system is the appropriate venue for Plaintiff's concerns. Plaintiff declined.
Alternatively, international treaties - notably the Berne Convention and related treaties - provide mediation processes through the World Intellectual Property Organization. PGLAF offered to undergo this mediation process, and Plaintiff declined.
International treaties explicitly and unambiguously support PGLAF's legal guidance as described above: that the copyright status in one country is not impacted or enforceable or otherwise relevant in other countries. Plaintiff managed to find a German Court, and some precedents from Germany (and, after the lawsuit was filed, from the EU), which were willing to flaunt international treaties by developing a theory that PGLAF is under jurisdiction of the German Court system.
The decision to acceed to the German Court's order to make items inaccessible from Germany is intended to be a temporary appeasement, while the appeal occurs - this is because the German appeal Court will likely look disfavorably on PGLAF if it shows contempt for the German Court. Ultimately, PGLAF seeks to establish that any complaints about copyright must be brought either to the US Courts (where PGLAF operates) or WIPO processes (as guided by international treaties).
Q: Is there anything that can be done about the situation?
A: Project Gutenberg is fighting for an appeal. Ideas about how to appeal the case in German, and any possible legal actions in the US, are welcome. You can reach Dr. Newby by email, gbnewby AT pglaf.org.
Q: I would like to make a donation, to help Project Gutenberg with legal expenses
A: Donations are gratefully accepted! More information at www.gutenberg.org/donate. One quick method is to make a Paypal donation to donate2018@pglaf.org
More information may be added in the future.
Most recently updated: March 3, 2018
