[InetBib] Projekt Gutenberg Entsperrung in Deutschland Oktober 2021

[Marcus Latour via InetBib <inetbib@xxxxxxxxxx>]

Lawsuit is Settled https://cand.pglaf.org/germany/index.html
https://de.wikipedia.org/wiki/Project_Gutenberg#Sperrung_in_Deutschland

-- 
# Lawsuit is Settled

In October 2021, the parties reached a settlement agreement. Under the
terms of the agreement, Project Gutenberg eBooks by the three authors
will be blocked from Germany until their German copyright expires.

Under the terms of the settlement, the all-Germany block is no longer in
place. Other terms of the settlement are confidential.

PGLAF and Dr. Newby thank all supporters during this lawsuit. Special
thanks go to our *pro bono* legal team at Ropes & Gray, to the
Electronic Frontier Foundation, and to the PGLAF Board of Directors.

# Fischer-Verlag Lawsuit against Project Gutenberg Literary Archive Foundation 
and its CEO

Note: The following has not been updated since the original court
ruling, and is retained for its historical value.

This page provides information about a lawsuit which was brought against
the [Project Gutenberg Literary Archive
Foundation](https://www.pglaf.org/) (PGLAF, the organization that
operates Project Gutenberg) and its Director & CEO, Greg Newby.

## The Basics

On December 30, 2015, PGLAF received notification that a lawsuit had
been filed in Germany against it, and its CEO. The lawsuit was concerned
with 18 eBooks, by three authors, which are part of the Project
Gutenberg collection.

-   The lawsuit was filed in the Frankfurt am Main Regional Court, in
    Germany.
-   The Plaintiff is S. Fischer Verlag, GmbH. Hedderichstrasse 114,
    60956 Frankfurt am Main, Germany. They are represented by the law
    firm, Waldorf Frommer of Munich.

The essence of the lawsuit is that the Plaintiff demands the 18 eBooks
to be removed from Project Gutenberg\'s servers. The lawsuit also seeks
punitive damages and fines.

Based on legal advice from its US attorneys, PGLAF declined to remove
the items. The lawsuit proceeded, with a series of document filings by
both sides, and hearings before the judges (all of which occurred in
German, in the German court). PGLAF hired a German law firm, Wilde
Beuger Solmecke, in Köln, to represent it in Germany.

On February 9 2018, the Court issued a judgment granting essentially
most of the Plaintiff\'s demands. The Court did not order that the 18
items no longer be made available by Project Gutenberg, and instead
wrote that it is sufficient to instead make them no longer accessible to
German Internet (IP) addresses.

-   [Court\'s original decision (in
    German).](gutenberg-lawsuit-judgment-DE.pdf)
-   [Decision translated into
    English.](gutenberg-lawsuit-judgment-EN.pdf)

PGLAF complied with the Court\'s order on February 28, 2018 by blocking
all access to [www.gutenberg.org](https://www.gutenberg.org) 
<http://www.gutenberg.org](https://www.gutenberg.org)> and
sub-pages to all of Germany.

## Discussion in the form of Q&A

Q: What is Project Gutenberg\'s basic approach to international
copyright issues?\
A: Please see our [summary](/index.html), 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
judgment?\
A: First, note that blocking was not demanded by the lawsuit, which
explicitly said blocking was insufficient. The Plaintiff demanded they
be removed, not blocked. The Court, however, deemed blocking to be
sufficient. Regardless of the judgment, though, the issue of
jurisdiction is the main concern. 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
jurisdiction, mainly because the www.gutenberg.org <http://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 operates as 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 judgment. 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. I.e., if a Web site is accessible from Germany, there are some
cases where German courts claimed jurisdiction over that site, even
though it was operated, and based, outside of Germany. These cases
involve companies that actually operate (for-profit) in Europe, and the
cases were 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 German 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, and never did.

Q: Who are the authors? Why are they copyrighted in Germany, but not the
the US?\
A:

-   Heinrich Mann, who died in 1950.
-   Thomas Mann, who died in 1955.
-   Alfred Döblin, who died in 1957.

In Germany, they are copyrighted based on \"life +70 years\" of
copyright protection (so, copyright will expire after 2020, 2025 and
2027, respectively). In the US, copyright protection for works published
prior to 1978 is based on the number of years since publication.

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.

-   [Flöten und Dolche: Novellen]{.ul} by Heinrich Mann.\
    Originally published 1905. Entered the public domain in the US: 1961
    (publication + 56).\
    Digitized and published by Project Gutenberg on February 8, 2010
    <http://www.gutenberg.org/ebooks/31218>.
-   [Flaubert und die Herkunft des modernen Romans]{.ul} by Heinrich
    Mann.\
    Originally published 1917.\
    Entered the public domain in the US: 1973 (publication + 56).\
    Digitized and published by Project Gutenberg on August 2, 2010
    <http://www.gutenberg.org/ebooks/33328>.
-   [Der Vater]{.ul} by Heinrich Mann.\
    Originally published 1917.\
    Entered the public domain in the US: 1973 (publication + 56).\
    Digitized and published by Project Gutenberg on August 2, 2010
    <http://www.gutenberg.org/ebooks/33329>.
-   [Professor Unrat, oder, Das Ende eines Tyrannen]{.ul} by Heinrich
    Mann.\
    Originally published 1906.\
    Entered the public domain in the US: 1962 (publication + 56).\
    Digitized and published by Project Gutenberg on February 13, 2011
    
[http://www.gutenberg.org/ebooks/35264](-%22http://www.gutenberg.org/ebooks/35264%22).
-   [Der Untertan]{.ul} by Heinrich Mann.\
    Originally published 1918.\
    Entered the public domain in the US: 1974 (publication + 56).\
    Digitized and published by Project Gutenberg on November 24, 2011
    <http://www.gutenberg.org/ebooks/38126>.
-   [Die Ehrgeizige: Novelle]{.ul} by Heinrich Mann.\
    Originally published 1920.\
    Entered the public domain in the US: 1976 (publication + 56).\
    Digitized and published by Project Gutenberg on July 28, 2013
    <http://www.gutenberg.org/ebooks/43335>.

Thomas Mann. 7 titles, 8 Gutenberg eBooks.

-   [Gladius Dei; Schwere Stunde]{.ul} by Thomas Mann.\
    Originally published 1903.\
    Entered the public domain in the US: 1959 (publication + 56).\
    Digitized and published by Project Gutenberg on April 15, 2004
    <http://www.gutenberg.org/ebooks/12053>.
-   [Der Tod in Venedig]{.ul} by Thomas Mann.\
    Originally published 1912.\
    Entered the public domain in the US: 1968 (publication + 56).\
    Digitized and published by Project Gutenberg on April 22, 2004
    <http://www.gutenberg.org/ebooks/12108>.
-   [Tristan]{.ul} by Thomas Mann.\
    Originally published 1903.\
    Entered the public domain in the US: 1959 (publication + 56).\
    Digitized and published by Project Gutenberg on October 20, 2004
    <http://www.gutenberg.org/ebooks/13810>.
-   [Tonio Kröger]{.ul} by Thomas Mann.\
    Originally published 1903.\
    Entered the public domain in the US: 1959 (publication + 56).\
    Digitized and published by Project Gutenberg on November 6, 2007 and
    January 27, 2012. <http://www.gutenberg.org/ebooks/23313> and
    <http://www.gutenberg.org/ebooks/38692>.
-   [Buddenbrooks: Verfall einer Familie]{.ul} by Thomas Mann.\
    Originally published 1901.\
    Entered the public domain in the US: 1957 (publication + 56).\
    Digitized and published by Project Gutenberg on January 1, 2011
    <http://www.gutenberg.org/ebooks/34811>.
-   [Königliche Hoheit: Roman]{.ul} by Thomas Mann.\
    Originally published 1901.\
    Entered the public domain in the US: 1965 (publication + 56).\
    Digitized and published by Project Gutenberg on March 6, 2012
    <http://www.gutenberg.org/ebooks/35328>.
-   [Der kleine Herr Friedemann: Novellen]{.ul} by Thomas Mann.\
    Originally published 1897.\
    Entered the public domain in the US: 1953 (publication + 56).\
    Digitized and published by Project Gutenberg on July 17, 2011
    <http://www.gutenberg.org/ebooks/36766>.

Alfred Döblin. 5 titles.

-   [Die Ermordung einer Butterblume und andere Erzählungen]{.ul} by
    Alfred Döblin.\
    Originally published 1913.\
    Entered the public domain in the US: 1969 (publication + 56).\
    Digitized and published by Project Gutenberg on March 16, 2010
    <http://www.gutenberg.org/ebooks/31660>.
-   [Die Lobensteiner reisen nach Böhmen: Zwölf Novellen und
    Geschichten]{.ul} by Alfred Döblin.\
    Originally published 1917.\
    Entered the public domain in the US: 1973 (publication + 56).\
    Digitized and published by Project Gutenberg July 20, 2011
    <http://www.gutenberg.org/ebooks/36779>.
-   [Wallenstein. 1 (of 2)]{.ul} by Alfred Döblin.\
    Originally published 1920.\
    Entered the public domain in the US: 1976 (publication + 56).\
    Digitized and published by Project Gutenberg on October 11, 2013
    <http://www.gutenberg.org/ebooks/43931>.
-   [Wallenstein. 2 (of 2)]{.ul} by Alfred Döblin.\
    Originally published 1920.\
    Entered the public domain in the US: 1976 (publication + 56).\
    Digitized and published by Project Gutenberg on October 11, 2013
    <http://www.gutenberg.org/ebooks/43932>.
-   [Die drei Sprünge des Wang-lun: Chinesischer Roman]{.ul} by Alfred
    Döblin.\
    Originally published 1916.\
    Entered the public domain in the US: 1972 (publication + 56).\
    Digitized and published by Project Gutenberg on October 21, 2013
    <http://www.gutenberg.org/ebooks/43987>.

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 to be operating legally?\
A: PGLAF received legal advice from our US lawyers that it is enough,
and this was reconfirmed as part of the current German lawsuit. 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 and cannot be known. The Court ordered on February 9
2018 that download records for the 18 items be provided (i.e., Web
server logs), but PGLAF had already 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 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: Under US law, this depends on the circumstances of the downloader. We
do not have detailed knowledge of German laws on this matter, but will
be seeking more information as part of the case for appeal. 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 by people with visual impairments, 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, but our German lawyers said that the presence or absence of
actual infringement was not material to the Plaintiff\'s case, nor to
the Court\'s jurisdiction. From the Court\'s proceedings, there is no
evidence that anyone in Germany ever downloaded any of the 18 items
(other than Plaintiff), regardless of whether or not it would have been
a violation of German copyrights to do so.

Q: The judgment 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 has not provided sufficient documentation 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 by the Plaintiff to try to improve on the
insufficient documentation, including hearings, to prove they are
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. Plaintiff has 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, including rights for eBooks
(as opposed to printed books).

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 in the US by the American people
(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 judgment say must be done? Are there fines or
penalties?\
A: The full judgment (original German, and translated into English) are
linked above. Basically, the Court granted the Plaintiff\'s demands,
with an important variation:

1.  Remove the 18 books, or at least make sure they are not available
    from Germany. PGLAF complied by blocking access to www.gutenberg.org 
<http://www.gutenberg.org>
    for all of Germany. The important variation is that Plaintiff said
    explicitly that blocking items was not enough: they needed to be
    removed. The Court did not order removal, and allowed blocking as a
    remedy.
2.  Provide a listing of all the downloads that have occurred for the 18
    items, so that licensing fees or other fines may be assessed. PGLAF
    has already told the Court that no such records exist, because Web
    server logs are only maintained for approximately 2 months.
3.  Pay Court costs, assessed at 50% of total costs. The amount is not
    yet known.

Q: Why block PG\'s entire collection, 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 should have taken place in the US, and in fact any attempts
at enforcement of the judgment 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 Germany, 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 may be found at
[www.gutenberg.org/donate](https://www.gutenberg.org/donate) 
<http://www.gutenberg.org/donate](https://www.gutenberg.org/donate)>. One quick
method is to make a [Paypal](https://www.paypal.com) donation to

    donate2019@xxxxxxxxx

. Note that PayPal does not always provide email addresses as donors, so
you might not get an emailed response other than PayPal\'s notification
that the donation was received. THANK YOU!

Q: Why isn\'t this page written in the German language?\
A: PGLAF doesn\'t have employees who speak German, and volunteers
including the CEO do not speak or read German. Translations of some
pages at https://www.gutenberg.org were done by volunteers who are no
longer active with Project Gutenberg. Here is [Google
translate](https://translate.google.com/translate?sl=auto&tl=de&u=https%3A%2F%2Fcand.pglaf.org%2Fgermany%2Findex.html),
which can be utilized to translate this page into languages other than
English.

Thank you for your interest in this matter. Additional information may
be added in the future.