Comment by heisig
5 years ago
This is great news! This is a wonderful project, and the fact that it wasn't accessible from Germany made me profoundly sad and angry.
I hope the responsible copyright lawyers have a hard time sleeping because of this and consider changing their line of work. If you are blocking people from reading books in the public domain, it is a good indication that you are one of the bad guys.
Even worse, they only blocked people from Germany that didn't know how to use a VPN. German courts really don't get how the internet works.
Sssh! If you tell foreign courts and litigants about VPNs, they'll stop accepting "we'll block it in your country if you get off our backs" and start demanding international jurisdiction.
At that point "it's legal in my country" will no longer suffice for anything online (which is basically everything). Everyone will need to be in compliance with the most restrictive subset of the law. Just in the realm of copyright, the public domain would be dramatically curtailed. All you would need is one rich country with strong legal ties to other nations and an appetite for perpetual copyright, and you would have a judgment mill by which you can make using any public domain content extremely risky.
The current status quo of country-by-country blocking may seem silly to people who know how to evade those blocks, but it makes courts happy and walls off the worst effects of copyright maximalism.
Hell will freeze over before we get an international court.
The US literally has a law on the books to invade the International Criminal Court in the Netherlands if GWB is ever held trial for war crimes (wars of aggression have been a war crime since the end of WW2).
I'm not sure that's relevant, since the Hague Invasion Act[0] only applies to war crimes. There's all sorts of other cases in which the US is perfectly happy with other countries asserting jurisdiction over it's own citizens. The US has signed plenty of extradition treaties that allow other countries access to US citizens who commit acts which are crimes in both jurisdictions[1].
Furthermore, copyright is usually treated as a civil tort; and the US also has processes to domesticate and enforce foreign court orders under US jurisdiction should someone decide to play scofflaw. There's plenty of international cooperation that makes the whole concept of "jurisdiction ends at national borders" null and void.
[0] Not the real name of the act, but this is funnier.
[1] If you're curious, there are countries that object to criminal extradition. Notably, France considers French nationality to constitute immunity to any extradition treaty it signs. Though, they haven't promised to invade countries over it like the US did.
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>The US literally has a law on the books
laws can change, I'd personally love to see some of our politicians and military leadership get punished for lying to the American people and the damage they did to entire nations around the world. A lot of people my age feel the same, some of these people better hope they croak before a younger generation can hold them accountable
While extremely significant, I don't think that's the only reason. It is possibly even worse and the blame sometimes even falls outside of US borders.
We live in a world largely run by multinational corporations who would prefer to continue operating in a world devoid of multinational jurisprudence.
Where can I read more about this?
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In Germany, the concept of "Public Domain" does not exist. (EDIT: It may exist 70 years after the authors death). IANAL.
Besides that, even if it would, the books would not have been in the Public Domain. From the announcement:
> In Germany, they are copyrighted based on "life +70 years" of copyright protection (so, copyright will expire after 2020, 2025 and 2027, respectively).
From a legal and business perspective, neither German legislation nor the Fischer Verlag are at fault here. It's just the way it is (in Germany): Creators hold their intellectual property for life and can make sure, their heir profits from the work of the (grand)parents, as well (+70 years after death of copyright holder).
And while I understand, that Project Gutenberg has limited resources and may have no desire to do the extra work of blocking works on a case by case basis, it would not have been difficult. Instead, they have chosen to collectively punish all people from Germany, which resulted us to be seven years without access, at least as long we did not utilize a VPN.
I am very happy, that this has been resolved now. All the legal hassle has cost (non-profit) money and was worthless, because the solution is the same now, they could have implemented seven years ago.
> In Germany, the concept of "Public Domain" does not exist. (EDIT: It may exist 70 years after the authors death). IANAL.
Works are "gemeinfrei" (approx. "public domain") 70 years after the author's death, or 70 years after publication for non-natural persons holding a copyright (e.g. corporate copyright).
What you might think of is that there's no official way for an author to release works into the public domain in Germany.
That, and the life+70 idea, comes from the personality rights angle that underlies German (and other European) copyright: Personality rights are protected for 70 years after death, probably under the assumption that everybody who cares deeply about a person (instead of being potentially offended in some abstract sense) is also gone by then. Works are considered an embodiment of the personality of their author, and so they receive the same kind of protection. Just as you can't give away your personality rights, you can't give away all rights to your work[1]. Their commercial value, while more important these days, played a secondary role in the creation of this concept.
In comparison, the Anglo-Saxon copyright tradition (based on Statute of Anne of 1710[2]) cares primarily about protecting the commercial value and exploitation rights of the works, with little concern about how "remixes could attack the honor of the author"[3] or anything like that.
[1] Of course you can trade away commercial exploitation rights.
[2] https://en.wikipedia.org/wiki/Statute_of_Anne
[3] To paint the German position with a very broad brush
I know Germany doesn't do legal precedent, but is there actually any case law demonstrating works can't be put into the public domain?
The idea it can't be done is a trope at this point, but I am frankly skeptical.
Moral rights to recognition aside, copyright can be sold, like any other property. Why do we think it can't be abandoned, again like any other property?
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The incompatiblity of U.S. and German copyright law is not so much in the momentary duration, which in both jursidictions is 70 years after the author's death (exceptions apply to anonymous publications). The major incompatiblities arise from the regulations which were in place before the durations were harmonized (for the U.S., prior to 1978).
On an international scale, the situation is more complicated. Rougly speaking, the range for the duration of copyright is from "life + 50 yrs" up to "life + 100 yrs". Wikipedia has a list of these.[1] There are many countries where works from up to the early 1970s are already in the public domain that are still under copyright protection in the U.S. for up to the next 20 years. In principle, problems may arise if the country in which a work is published in the Internet sets a shorter term of protection than the maximum term in this list.
[1] https://en.wikipedia.org/wiki/List_of_countries%27_copyright...
> And while I understand, that Project Gutenberg has limited resources and may have no desire to do the extra work of blocking works on a case by case basis, it would not have been difficult. Instead, they have chosen to collectively punish all people from Germany, which resulted us to be seven years without access, at least as long we did not utilize a VPN.
They explain their rationale for this and it is a very sound one, it is not about the difficulty to block, it is about opening themselves to lawsuits. Here is the relevant quotes:
> 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.
> [...] 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.
I agree with their assessment, once the German court decided that all international treaties and public domain basically don't exist, and decided that German courts have jurisdiction over the US, it means that ALL works on the project are equally "illegal" (or at least many, they can't know which ones), and therefore nothing on the whole site is safe to be accessible in Germany. Their only option was to block the whole site or open themselves to uncountable other lawsuits (and limitless amount of punitive damages).
As to how they reopened the site for Germany now, I can only speculate, but I imagine that in the settlement they somehow got some kind of assurance from the big publishers that they won't sue and seek punitive damages for other works. With that the project decided that the risk of lawsuit is now low enough to allow for opening for Germany.
> ALL works on the project are equally "illegal" (or at least many, they can't know which ones)
Those whose authors aren't dead for 70 years (because we don't have the "pre-1978" loophole the US has). Probably (but here things get vague) even limited to stuff originating from German authors, even if it was also published in the US pre-1978.
> limitless amount of punitive damages
Punitive damages? In Germany?
> I imagine that in the settlement they somehow got some kind of assurance from the big publishers that they won't sue and seek punitive damages for other works.
Project Gutenberg tried to make a stand and then found out that practically nobody bothered to notice their protest. Now they stop making an ass of themselves. Good on them.
Which international treaties were ignored by German courts in these cases?
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Nitpick. German intellectual property laws are part of German legislation. Legislation is a body of laws. Maybe you meant the German legislative community. Well, it's their responsibility to maintain the legislation. Laws are not immutable.
I think our legislative has better things to do than to adopt US copyright law before 1978. Although it seems unpopular IMHO it would have caused project Gutenberg no harm to remove this few items until copyright is expired.
We are always complaining about China that they do not fully honor IP. I believe it is an ethical thing to do to honour the laws of the country were sth was originally created even if strictly legally speaking I can move around the world to circumvent unpleasant jurisdiction.
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> From a legal and business perspective, neither German legislation nor the Fischer Verlag are at fault here. It's just the way it is (in Germany): Creators hold their intellectual property for life and can make sure, their heir profits from the work of the (grand)parents, as well (+70 years after death of copyright holder).
I don't follow. Aren't you describing German legislation's choice to have extremely long copyright periods? How do you conclude that German legislation not at fault here?
I consider them long copyright periods, but not extremely long. I can tolerate life+70 years. Though, I'd prefer them, ideally, to be life+25 years and, considering life ain't ideal, life + 50. But I can live with life+70. But not more.
Why isn't the legislative not at fault if they have the power to change but won't? The reasons you cite for having this long copyright could apply anywhere. So what's the difference between Germany and the US. Shouldn't we want this changed everywhere.
I'm really trying hard not to whatabout this but tone of understanding at the copyright laws in Germany just got to me.
The German copyright law doesn't seem unnecessarily vague, simply life+70 years, which is why there are now two authors blocked (3 at the time of the link). If you have a problem with Germany's life+70 years then you shouldn't be upset with the lawyers, you should be upset with your government to change your government's copyright laws to match whatever the US does.
It's a bit more complicated: The US adopted[1] the international regimen (life + 70) with an exception that US statute of limitations from before 1978 continue to apply to works published in the US before 1978.
So the US adopted everybody else's rules but has an escape hatch for older works - that only applies in the US and this is where the contention over these 3-5 works comes from.
The US later extended the "70 years" rule for anonymous, pseudonymous and work-for-hire works to cover 95 years since publication or 120 years since creation (whatever happens first) because The Mouse squeaked[2].
I'd prefer Germany not to adopt that one.
[1] https://www.copyright.gov/help/faq/faq-duration.html
[2] https://de.wikipedia.org/wiki/Copyright_Term_Extension_Act
> you should be upset with your government to change your government's copyright laws to match whatever the US does.
Why should every government copy what US does?
At least in this case the US copied Europe with it's term extensions (Disney certainly weren't unhappy about it but the notion that Disney drove this is a bit of a myth). And Europe set that term length when the EU unified terms because it set it at the longest length from the member nations at the time, which was Germany's life+70 years.
It's pretty interesting but the current global norm for copyright duration is, due to circumstance, almost entirely based on German norms.
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Looks like OP wants German laws to match US laws in this department. So he should be angry at lawmakers, not at lawyers.
I agree it's good news that the project complied with the original court order from 2018, which was to block the works on German IP addresses that are still under German copyright law. Why would American copyright law apply in Germany? It's a bit disingenous of Project G that, instead of blocking access to just these books in Germany, they blocked access to the all the books. That was project G's, and not the German court's, decision. I'm glad they've changed their minds.
> Why would American copyright law apply in Germany?
It doesn't. Project Gutenberg is an American entity, and operated entirely in the US. This is like asking why should American free speech laws apply in Thailand in regards to Thailand enforcing lèse-majesté laws on an American website.
> and operated entirely in the US.
The problem is that it sent copyrighted files to Germany (outside the U.S.). The court order only demands to stop this.
I doubt that the order is enforcible on U.S. soil. But if individuals associated with an uncomplying organization set foot in or have assets in a territory where the order could be enforced, they risk real consequences.
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Disclaimer: I'm not a lawyer.
If you look at it from an EU perspective, if you download a book that still falls under copyright in the EU (without permisison) and the server is in the EU, then obviously this is a copyright violation and the person who makes the work available on the server has a problem.
If the server is not in the EU, then the person downloading the book is essentially importing a copyrighted work into the EU without permission of the owner. Which is also a copyright violation.
Then the question becomes to what extent the person who makes the work available has ties to the EU. The stronger the ties, the more effort can be required to avoid such illegal imports. For example, if there would be ads targeted at the German public, then courts would be very quick that this falls under jurisdiction of German courts.
So people in German who would use a VPN to get around the block, who still violate copyright law in Germany.
>I hope the responsible copyright lawyers have a hard time sleeping because of this and consider changing their line of work.
Risking going off tangent, I highly doubt that would happen. When you work in a domain, your entire life becomes it, you slowly lose wider context and alternative perspective. I doubt there are many people who purposefully want to be the bad guys, it seems more like "learned indifference". Just like many people who eat meat on a daily basis but would be uncomfortable with a thought of a chicken being killed in a process (and some freak out from a sight of a live lobster in a restaurant tank). Maybe it's a negative side of the "flow" - losing some degree of empathy.
> Even worse, they only blocked people from Germany that didn't know how to use a VPN. German courts really don't get how the internet works.
German courts are aware of the existence of means to circumvent such a block but don't see that as a reason to not even try. See e.g BGH, 26.11.2015 - I ZR 174/14
>Even worse, they only blocked people from Germany that didn't know how to use a VPN. German courts really don't get how the internet works.
I wouldn't make that assumption at all. As with many other examples, such as GDPR-related geofencing, a good faith attempt to restrict access usually goes a long way even if it's possible for a savvy user to get around the blocks.
I ran into the site being blocked a couple of weeks ago. Changed VPN settings to a server in another country and had access without issues.
Just saying, the blocking was rather trivial to bypass.
> If you are blocking people from reading books in the public domain […]
‘Public domain’ doesn’t exist in Germany.
For the purposes of the discussion here, "Gemeinfreiheit" is basically the same thing.
An important caveat is that in Germany (and Austria, I think?) you can't legally dedicate a work to the public domain, but you can surrender most of your legal rights to a work. This is why international public domain dedications often include a fallback public license.
70 years after the last authors death it becomes public domain.
You cannot give up all rights voluntarily.
see https://news.ycombinator.com/item?id=29025058