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The answer is fairly simple.
If the Publisher thinks they can make money off of this, then they'll sue you. At that point it doesn't really matter what the actual copyright status is. They have a lot more money to spend on lawyers to drag it through the courts than you likely can afford to spend defending yourself. Therefore, the Publisher will get their way regardless of the copyright status.
In today's world the most important question isn't "is this public domain" but rather "is there commercial value". If the answer to the latter is "yes", then whoever has the most money to spend on their lawyers will win.
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