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.
• 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
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:
• Glyn Moody in Techdirt
• Chris Meadows in Teleread
• 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

Creative Works *Ascend* into the Public Domain

It's a Wonderful Life, the movie, became a public domain work in 1975 when its copyright registration was not renewed. It had been a disappointment at the box office, but became a perennial favorite in the 80s as television stations began to play it (and play it again, and again) at Christmas time, partly because it was inexpensive content. Alas, copyright for the story it was based on, The Greatest Gift by Philip Van Doren Stern, HAD been renewed, and the movie was thus a derivative work on which royalties could be collected. In 1993, the owners of the story began to cash in on the film's popularity by enforcing their copyright on the story.

I learned about the resurrection of Wonderful Life from a talk by Krista Cox, Director of Public Policy Initiatives for ARL (Association of Research Libraries) during June's ALA Annual Conference. But I was struck by the way she described the movie's entry into the public domain. She said that it "fell into the public domain". I'd heard that phrase used before, and maybe used it myself. But why "fall"? Is the public domain somehow lower than the purgatory of being forgotten but locked into the service of a copyright owner? I don't think so. I think that when a work enters the public domain, it's fitting to say that it "ascends" into the public domain.

If you're still fighting this image in your head, consider this example: what happens when a copyright owner releases a poem from the chains of intellectual property? Does the poem drop to the floor, like a jug of milk? Or does it float into the sky, seen by everyone far and wide, and so hard to recapture?

It is a sad quirk of the current copyright regime that the life cycle of a creative work is yoked to the death of its creator. That seems wrong to me. Wouldn't it be better use the creator's birth date? We could then celebrate an author's birthday by giving their books the wings of an angel. Wouldn't that be a wonderful life?

This is NOT a Portrait of Mary Astell

Not Mary Astell, by Sir Joshua Reynolds

Ten years ago, the University of Calgary Press published a very fine book by Christine Mason Sutherland called The Eloquence of Mary Astell, which focused on the proto-feminist's contributions as a rhetorician. The cover for the book featured a compelling image using a painted sketch from 1760-1765 by the master English portraitist Sir Joshua Reynolds, currently in Vienna's Kunsthistorisches Museum and known as Bildnisstudie einer jungen Dame (Study for the portrait of a young woman).

Cover images from books circulate widely on the internet. They are featured in online bookstores, they get picked up by search engines. Inevitably, they get re-used and separated from their context. Today (2015) "teh Internetz" firmly believe that the cover image is a portrait of Mary Astell.

For example:

• Google (look at the infobox)
• A blog post on English Historical Fiction Authors
• Another blog post about the Astell Project
• The Astell Project's Twitter feed
• A website from Cambridge University
• A Portland State history professor's website
• Wheaton College's Philosophy News 
• Articles from Italy, Spain, Spain, Turkey, Canada,
• Pinterest, Find-A-Grave

If you look carefully, you'll see that the image most frequently used is the book cover with the title inexpertly removed.

But the painting doesn't depict Mary Astell. It was done 30 years after her death. In her book, Sutherland notes (page xii):

No portrait of her remains, but such evidence as we have suggests that she was not particularly attractive. Lady Mary Wortley Montagu’s granddaughter records her as having been “in outward form [...] rather ill-favoured and forbidding,” though Astell was long past her youth when this observation was made. 

Wikipedia has successfully resisted the misattribution.

A contributing factor for the confusion about Mary Astell's image is the book's failure to attribute the cover art. Typically a cover description is included in the front matter of the book. According to the Director of the University of Calgary Press, Brian Scrivener, proper attribution would certainly be done in a book produced today. Publishers now recognize that metadata is increasingly the cement that makes books part of the digital environment. Small presses often struggle to bring their back lists up to date, and publishers both large and small have "metadata debt" from past oversights, mergers, reorganizations and lack of resources.

Managing cover art and permissions for included graphics is often an expensive headache for digital books, particularly for Open Access works. I've previously written about the importance of clear licensing statements and front matter in ebooks. It's unfortunate when public domain art is not recognized as such, as in Eloquence, but nobody's perfect.

The good news is that University of Calgary Press has embraced Open Access ebooks in a big way. The Eloquence of Mary Astell and 64 other books are already available, making Calgary one of the world's leading publishers of Open Access ebooks. Twelve more are in the works.

You can find Eloquence at the Calgary University Press website (including the print edition), Unglue.it, DOAB, and Internet Archive. Mary Astell's 1706 pamphlet Reflections Upon Marriage can be found at the Internet Archive and at the University of Pennsylvania's Celebration of Women Writers.

And maybe in 2025, teh internetz will know all about Sir Joshua Reynold's famous painting, Not Mary Astell. Happy Open Access Week!

GITenberg: Modern Maintenance Infrastructure for Our Literary Heritage

One day back in March, the Project Gutenberg website thought I was a robot and stopped letting me download ebooks. Frustrated, I resolved to put some Project Gutenberg ebooks into GitHub, where I could let other people fix problems in the files. I decided to call this effort "Project Gitenhub". On my second or third book, I found that Seth Woodworth had had the same idea a year earlier, and had already moved about a thousand ebooks into GitHub. That project was named "GITenberg". So I joined his email list and started submitting pull requests for PG ebooks that I was improving.

Recently, we've joined forces to submit a proposal to the Knight Foundation's News Challenge, whose theme is "How might we leverage libraries as a platform to build more knowledgeable communities? ". Here are some excerpts:

Abstract 

Project Gutenberg (PG) offers 45,000 public domain ebooks, yet few libraries use this collection to serve their communities. Text quality varies greatly, metadata is all over the map, and it's difficult for users to contribute improvements. 

We propose to use workflow and software tools developed and proven for open source software development- GitHub- to open up the PG corpus to maintenance and use by libraries and librarians. 

The result- GITenberg- will include MARC records, covers, OPDS feeds and ebook files to facilitate library use. Version-controlled fork and merge workflow, combined with a change triggered back-end build environment will allow scaleable, distributed maintenance of the greatest works of our literary heritage.  

Description 

Libraries need metadata records in MARC format, but in addition they need to be able to select from the corpus those works which are most relevant to their communities. They need covers to integrate the records with their catalogs, and they need a level of quality assurance so as not to disappoint patrons. Because this sort of metadata is not readily available, most libraries do not include PG records in their catalogs, resulting in unnecessary disappointment when, for example, a patron want to read Moby Dick from the library on their Kindle. 

Progress 

43,000 books and their metadata have been moved to the git version control software, this will enable librarians to collaboratively edit and control the metadata. The GITenberg website, mailing list and software repository has been launched at https://gitenberg.github.io/ . Software for generating MARC records and OPDS feeds have already been written.

Background 

Modern software development teams use version control, continuous integration, and workflow management systems to coordinate their work. When applied to open-source software, these tools allow diverse teams from around the world to collaboratively maintain even the most sprawling projects. Anyone wanting to fix a bug or make a change first forks the software repository, makes the change, and then makes a "pull request". A best practice is to submit the pull request with a test case verifying the bug fix. A developer charged with maintaining the repository can then review the pull request and accept or reject the change. Often, there is discussion asking for clarification. Occasionally versions remain forked and diverge from each other. GitHub has become the most popular sites for this type software repository because of its well developed workflow tools and integration hooks. 

The leaders of this team recognized the possibility to use GitHub for the maintenance of ebooks, and we began the process of migrating the most important corpus of public domain ebooks, Project Gutenberg, onto GitHub, thus the name GITenberg. Project Gutenberg has grown over the years to 50,000 ebooks, audiobooks, and related media, including all the most important public domain works of English language literature. Despite the great value of this collection, few libraries have made good use of this resource to serve their communities. There are a number of reasons why. The quality of the ebooks and the metadata around the ebooks is quite varied. MARC records, which libraries use to feed their catalog systems, are available for only a subset of the PG collection. Cover images and other catalog enrichment assets are not part of PG. 

To make the entire PG corpus available via local libraries, massive collaboration amoung librarians and ebook develeopers is essential. We propose to build integration tools around github that will enable this sort of collaboration to occur. 

1. Although the PG corpus has been loaded into GITenberg, we need to build a backend that automatically converts the version-controlled source text into well-structured ebooks. We expect to define a flavor of MarkDown or Asciidoc which will enable this automatic, change-triggered building of ebook files (EPUB, MOBI, PDF). (MarkDown is a human-readable plain text format used on GitHub for documentation; MarkDown for ebooks is being developed independently by several team of developers. Asciidoc is a similar format that works nicely for ebooks.) 
2. Similarly, we will need to build a parallel backend server that will produce MARC and XML formatted records from version-controlled plain-text metadata files.
3. We will generate covers for the ebooks using a tool recently developed by NYPL and include them in the repository.
4. We will build a selection tool to help libraries select the records best suited to their libraries.
5. Using a set of "cleaned up" MARC records from NYPL, and adding custom cataloguing, we will seed the metadata collection with ~1000 high quality metadata records.
6. We will provide a browsable OPDS feed for use in tablet and smartphone ebook readers.
7. We expect that the toolchain we develop will be reusable for creation and maintenance of a new generation of freely licensed ebooks.

The rest of the proposal is on the Knight News Challenge website. If you like the idea of GITenberg, you can "applaud" it there. The "applause' is not used in the judging of the proposals, but it makes us feel good. There are lots of other interesting and inspiring proposals to check out and applaud, so go take a look!

Heisenberg's Uncertain Copyright

If you participate in LinkedIn, you've been recently deluged with requests to endorse the skills of people in your network. I decided to have some fun with that, and listed "Quantum Copyright" as one of my skills. To cement my claim to be the world's foremost expert in quantum copyright, I decided to examine the microscopic question of where copies occur. The closer you look, the more uncertain the location of the copying becomes!

It turns out that where a copy is made has consequences. Consider Fitzgerald's The Great Gatsby. A recent LibraryCity blog post by David Rothman suggested that Bill Gates should use a tiny bit of his fortune to buy out the remaining copyright of Gatsby, supposedly one of Gates' favorites. On Unglue.it, 70 ungluers share the sentiment that The Great Gatsby should join Huckleberry Finn as a great American novel that belongs to all of us in the public commons.

Funny thing is, The Great Gatsby already belongs to every Australian, in the sense that Australians have the right to read and copy it for free without anybody's permission. In the US, it belongs to the CBS Corporation, and if you want to read it on Kindle, it'll cost you $7.80.

If you copy Gatsby in Australia, no problem, it's cool, because Gatsby has entered the public domain. There's an excellent version available from Project Gutenberg Australia. If you do it in the US without permission from CBS, it constitutes copyright infringement and is punishable with jail time and statutory damages up to $150,000 per incidence of infringement. So it really matters where the copying occurs.

click to beam

But we live in an era where books can be transported from one location to another without one of those Star Trek machines which turn goofy aliens and crewmen into particle beams. It's no longer obvious where copying occurs.

Suppose you have a book sitting on a computer in Australia. The computer breaks the book into thousands of UDP packets and sends them into the Internet. Copying can't have occurred yet, because the packets aren't fixed in any form. For copyright purposes,

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. http://www.copyright.gov/title17/92chap1.html

Now suppose the packets are reassembled on my hard drive in New Jersey. A copy of "The Great Gatsby" has materialized. Has a copyright been infringed? If I was in Australia and the source of the packets was in the US, would the answer be different?

click to beam

I don't know the answer; I am not a lawyer. But I'm an engineer and I can read and I understand the communication processes that have occurred in the book transporter. I'm pretty sure that copying has occurred, and that part of the copying process occurs in a location where no copyright attaches to The Great Gatsby.

Maybe it doesn't even matter where the copying occurs. Maybe it depends on who's in control of the copying. In the age of quantum copyright, action at a distance is not at all a problem. Here's what US Copyright law says:

The owner of copyright under this title has the exclusive rights to do and to authorize ... to reproduce the copyrighted work in copies or phonorecords;

You could read that as saying only that nobody other than the copyright owner and subject to the jurisdiction of the statute is allowed to reproduce the copyrighted work regardless of where reproduction occurs. So if the person doing the copying is in Australia, maybe it doesn't matter where the copying actually occurs.

So we have 8 different quantum copyright location scenarios; 6 have uncertainty as to the fact of infringement:

1. Person copying, copy source, and copy destination all in US. (US law controls!)
2. Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
3. Person copying and copy source in US, copy destination in Australia.
4. Person copying and copy source in Australia, copy destination in US.
5. Person copying and copy destination in US, copy source in Australia.
6. Person copying and copy destination in Australia, copy source in US.
7. Person copying in US, copy source and copy destination in Australia.
8. Person copying in Australia, copy source and copy destination in US.

You could also be a cynic and say the only thing that matters is where the judge is sitting. But really, this whole situation with territorial copyright variation is ludicrous and prehistoric and we really should be spending our time and money curing malaria instead.

Next week: copyright and special relativity. In what frame of reference do copyright terms exist?

Notes:

• Kirtsaeng is another issue entirely. (But see comments.)
• In January I wrote about the intersection of SOPA and copyright territoriality. I hope that's a moot issue!
• Techdirt is covering Australia's review of its copyright laws.

Foreign Libraries Will Be Infringing Sites Under SOPA

On January 1, "Public Domain Day", another year was added to the copyright gap between the US and the rest of the world. In most of the world, New Year's Day marked the end of copyright for works by authors who died in 1941. But not in the USA. Copying and distribution of gap works may be legal and unrestricted in most countries, but these activities are criminal acts of copyright infringement in the US, punishable by up to 10 years of prison.

One effect of SOPA, the "Stop Online Piracy Act" (which almost means "garbage" in Swedish) is that the US Attorney General will be able to extend the effect of US copyright law to foreign web sites. For example, Project Gutenberg Australia (PGA) distributes electronic versions of F. Scott Fitzgerald's The Great Gatsby, which is still under copyright in the US. SOPA would allow the US Attorney General to make a determination that Project Gutenberg Australia, by allowing access from the US, is a "U.S. directed site" that would be subject to forfeiture by the Attorney General for acts prohibited under section 2319 of the U.S. Criminal Code (ongoing copyright infringement), if it were based in the US.

If Project Gutenberg Australia persisted in its criminal activity, SOPA would allow the Attorney General to force internet service providers in the US to block access to the PGA domain. It would also allow the Justice Department to force Google and other US-based search engines to remove PGA links from its search results for the US. It could force Wikipedia to remove links to PGA. Most damaging to PG Australia, it would allow Justice to cut off PGA's revenue from Google's advertising services.

As libraries around the world move aggressively into the digital environment, they will de-emphasize the cataloguing of printed objects in favor of delivery of electronic content, especially public-domain and public-commons content that can be delivered without per-copy fees. They will run up against the same copyright extraterritorial issues exhibited today by Project Gutenberg Australia. If SOPA is enacted as currently written and our system of perpetual copyright persists, we can assume that most of the world libraries will sooner or later be blacklisted from the American internet. And the real bad-guy sites will easily circumvent the blacklist.

The Swedish word "sopa" is not really used as a singular noun. As a verb, it means "to sweep". The plural "sopor" is the stuff you sweep up. "Sopa bort" is what should be done with SOPA.