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Old 03-06-2018, 05:22 PM   #46
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It wasn't necessary for Project Gutenberg to have servers or advertising in Germany. It's making books available in Germany, just as surely as if it sat just outside the German borders and flung paper copies over the wall by catapult.
But it's not. People in Germany are visiting an American site (located in America, with no direct connections to Germany) and then importing books from there. It's like having a book store set up in Minsk that complies with local law, which German people are getting books from and then driving home.

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Why should the German publisher have to go to the expense of traveling all the way to America to litigate against this? The harm to that publisher's German sales is happening in Germany.
This is a strawman; there are remedies available within Germany without putting undo burden on an entity who doesn't operate in Germany and isn't under German jurisdiction. The publisher could sue in German court to have German ISPs block Gutenberg (entirely or the offending books) at the border: essentially an Internet equivalent of Customs for physical goods. Or they could recover damages from the individuals who violated German copyright legislation.

Moreover, as a matter of public policy it seems eminently reasonable to allow non-profits or startups to connect to the Internet without needing to understand and comply with 197 different, possibly conflicting sets of laws in countries they have no affiliation with.

Note that the publisher hasn't even proven that any German citizens actually downloaded the books in question; they attempted to force Gutenberg to do that accounting for them, but it turns out that (for privacy reasons, some similar to things mandated by the EU) Gutenberg doesn't keep logs of personal information that might be useful to find out how many such downloads there were (if any).

This is different from something like Amazon selling books, where they are actually doing business in Germany (including taking payment from Germans and often delivering physical goods, operating warehouses, etc); once you've established a presence or business relationship in the country then it's entirely reasonable that you should know and comply with their laws. And if that tiny startup takes money from someone in Kiribati to deliver a product there, then they'd better know and comply with Kiribati's laws.

Last edited by sjfan; 03-06-2018 at 05:27 PM.
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Old 03-06-2018, 05:40 PM   #47
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Originally Posted by Little.Egret View Post
The Orwell Kafuffle took place in 2009. Orwell died in 1950 so the books were copyright-free only in Life+50 countries such as Canada & Australia - the UK and the EU having traded up to Life+70

If someone runs a US publisher site which allows e-book sales world wide, can the UK publisher of the same book require them to install geographical restrictions on their servers?
If so, has this ever happened?
That also happened in 2009, when eReader, Fictionwise, and various other ebook vendors suddenly stopped selling to people outside the United States. It may not have been at the foreign publishers' behest directly, but it was a requirement from the American publishers who were themselves aware of where they were licensed to sell their books.
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Old 03-06-2018, 05:55 PM   #48
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Originally Posted by sjfan View Post
But it's not. People in Germany are visiting an American site (located in America, with no direct connections to Germany) and then importing books from there. It's like having a book store set up in Minsk that complies with local law, which German people are getting books from and then driving home.


This is different from something like Amazon selling books, where they are actually doing business in Germany (including taking payment from Germans and often delivering physical goods, operating warehouses, etc); once you've established a presence or business relationship in the country then it's entirely reasonable that you should know and comply with their laws. And if that tiny startup takes money from someone in Kiribati to deliver a product there, then they'd better know and comply with Kiribati's laws.
No, it's not different, and that's the point. Project Gutenberg has to comply with German copyright law because there are international copyright treaties & the Internet is not a US-centric place where PG is somehow above Germany's copyright laws. The Intenet is global & non-profits have to abide by the same copyright laws that a commercial entity does. So PG will have to make adjustments so they stay within the law if they wish to have international site traffic.

Kiribati is a Life + 50 country, and if they had a publisher who was within their rights as the German publisher was, then PG would have to comply.
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Old 03-06-2018, 06:39 PM   #49
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International treaties are about signatory countries agreeing to common terms and roghts, not about giving foreign courts arbitrary authority over their citizens and institutions.

Gutenberg's "crime" is supposed to be unauthorized publishing. Well, the ebooks were published in the US. That germans could use the internet to pull the files from the American servers is in no way Gutenberg's doing. The plaintiff is demanding that Gutenberg anticipate illegal behavior outside its control and expend time and money to protect them from the actions of third parties.

Given that American companies (and others) are routinely sued in the US for actions in the US with repercussions elsewhere (FIFA) this case smacks of venue shopping.
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Old 03-06-2018, 06:59 PM   #50
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No, the plaintiff is demanding that Gutenberg stop its illegal behavior: making still-copyrighted books available in Germany, where it doesn't hold the copyright to them.
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Old 03-06-2018, 07:25 PM   #51
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No one has yet said if Project Gutenberg should lose in German court. How the court is going to enforce their order.
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Old 03-06-2018, 07:38 PM   #52
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No one has yet said if Project Gutenberg should lose in German court. How the court is going to enforce their order.
Probably the same way any foreign court would.
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Old 03-06-2018, 07:42 PM   #53
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Originally Posted by Robotech_Master View Post
No, the plaintiff is demanding that Gutenberg stop its illegal behavior: making still-copyrighted books available in Germany, where it doesn't hold the copyright to them.
But they're not. Gutenberg isn't making books available in Germany. They don't have a German presence at all. They don't have any direct connections to Germany. They're making them available in the US.

If a German user downloads from a US site, they're making a series of connections through various ISPs before finally obtaining the book in the US, and then importing it into Germany over another series of connections. It's like driving from Berlin to Minsk to buy a book and then driving home, but much faster. You don't sanction the Minsk bookseller, you stop it at the border or sanction the individual bringing materials back into the country. And you don't argue that the Minsk bookseller is doing business in Germany because they're connected to Berlin by a series of roads that makes it easy for Germans to buy things there.

The proper German response should be either a) Require German ISPs not to connect to sites that infringe on German copyrights; or b) Sanction the users who are importing material from the US that is still under German copyright.

Or something else targeted at the actual infringers, rather than trying to push the problem off to someone operating legally in another jurisdiction.

It's different from something like Amazon, where Amazon actually is operating in Germany.
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Old 03-06-2018, 07:59 PM   #54
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You're quibbling over semantics. It doesn't matter where the file comes from. The law doesn't care. It only matters that it is made to appear in Germany, on the computer of a German citizen, through the action of Project Gutenberg's server making it available for that person to download. So they sued to require Project Gutenberg to stop making that possible.
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Old 03-06-2018, 08:00 PM   #55
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Originally Posted by Abzeronow View Post
So PG will have to make adjustments so they stay within the law if they wish to have international site traffic.
Here's what Project Gutenberg Canada has to say about that:

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Canada is not a colony of the United States and its corporations, or of any other country. Canadians and no one else determine our laws. Trade agreements are about tariffs and similar matters, not about hijacking another country's laws and confiscating their citizens' property -- the public domain.
It would be an enormous and impractical job for Project Gutenberg Canada to figure out what is under copyright in which country and geo-block accordingly. So they don't.

This year, compliance is fairly easy for the American Project Gutenberg site because they are only facing one lawsuit, and little on their site isn't public domain almost everywhere. That changes next January when the US starts having an annual public domain day with unique rules leading to many books becoming public domain in the US last, while others go to US public domain first.
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Old 03-06-2018, 08:03 PM   #56
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Originally Posted by SteveEisenberg View Post
I guess I'm at fault for having oversimplified. It's not really true that The Murder on the Links will only be public domain, in the US, next January. For example, according to Wikipedia:

-- Colombia is Life + 80
-- Yemen is Life + 30
-- Eritrea is 50 years after publication
-- The Marshall Islands doesn't have copyright

Smaller countries don't count? In my opinion, that would be unprincipled. Blocking, say, Yemen -- or South Korea -- just because it's a pain to differentiate it from Europe, would be disrespectful to their readers. Also, bigger countries may have more complex laws having exceptions only found in case law. In order to really say that a book is, or is not, in the public domain, in even one foreign country, would take a long legal analysis by someone familiar with how to do legal research in that nation. It might even be that there's no real way to know a nation's policy, on old-book copyright, without a court case.

By giving in to the German courts, and blocking their site in Germany, even temporarily, Project Gutenberg is going down an impractical road.
Speaking as a retired DBA, If their database is reasonably structured, It would be a small problem to add PD expiration dates in an array of 10 year increments from 20 to 100 to the records of catalogued books. Then when someone tries to download a book, their location is identified and the proper ability to DL is either granted or denied based on a simple country look up table.

The problem, of course, is databases like this are rarely designed for easy modification. In fact, databases built for many not for profit projects aren't designed at all, but are haphazardly slapped together over time by people with minimal knowledge of what good database design actually is!

I don't know anything about Project Gutenberg's database, but based on my experience of 30 years, I suspect it is closer to the latter than the former! All it will take to fix this, is time and money!
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Old 03-06-2018, 08:16 PM   #57
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Here's what Project Gutenberg Canada has to say about that:

It would be an enormous and impractical job for Project Gutenberg Canada to figure out what is under copyright in which country and geo-block accordingly. So they don't.

This year, compliance is fairly easy for the American Project Gutenberg site because they are only facing one lawsuit, and little on their site isn't public domain almost everywhere. That changes next January when the US starts having an annual public domain day with unique rules leading to many books becoming public domain in the US last, while others go to US public domain first.
They already have danger of lawsuit from say HarperCollins as you cited in an earlier example.

Agatha Christie (died 1976)
Mysterious Affair at Styles (1920)
The Secret Adversary (1922)

Both of those are available on Project Gutenberg US.

Other authors & books on Project Gutenberg that a European publisher can sue over:

Georgette Heyer (died 1974)
The Black Moth (1921)

Aldous Huxley (died 1963)
Chrome Yellow (1921).

Next year, 1 Christie(Murder on the Links), 3 Heyer (The Great Roxhythe; Transformation of Philip Jettan/Powder & Patch; Instead of the Thorn) & 1 Huxley (Antic Hay) become public domain in the U.S.
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Old 03-06-2018, 08:27 PM   #58
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International treaties are about signatory countries agreeing to common terms and roghts, not about giving foreign courts arbitrary authority over their citizens and institutions.
Exactly.

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Seems to me that if Germany wants to block its inhabitants from accessing something that is legal elsewhere, then it is Germany that needs to do the blocking.
Which is what some other countries do in law, the UK included, to stop their inhabitants accessing sites that serve what is in copyright material to them. While I can understand German politicians shrinking from accusations of limiting access to the internet, it is the correct solution rather than leaving it to corporates to fight minnows not even domiciled in Germany in court.
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Old 03-06-2018, 08:31 PM   #59
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The problem, of course, is databases like this are rarely designed for easy modification. In fact, databases built for many not for profit projects aren't designed at all, but are haphazardly slapped together over time by people with minimal knowledge of what good database design actually is!

I don't know anything about Project Gutenberg's database, but based on my experience of 30 years, I suspect it is closer to the latter than the former! All it will take to fix this, is time and money!
The thing about Project Gutenberg is that it's always been a tiny organization. Project Gutenberg was started in the first place by Michael Hart typing the Constitution (or was it the Declaration of Independence) into a mainframe computer and emailing it to everyone on the Internet!

It was started at a time when organizations could be smaller on the Internet, because the Internet itself was smaller, and mostly limited to the USA, without any business interests involved. It's continued on in pretty much the same vein while the Internet has grown up and become more global, commercial, and complicated all around it.

Unfortunately, that small size and simple operating strategy that served it so well back in the early days of the Internet just isn't going to work as well now. It's no longer really feasible to make material available but tell people not to download it if they shouldn't.

Gutenberg's original reaction to the suit--telling the publishers that they need to police offenders locally and not bother them because they were providing content from the USA with a disclaimer on it--bespeaks a hope that they could just carry on operating the way they always had. The court was not impressed.

I'm not a lawyer, but this seems to be one of those cases where the Internet runs into the real world and comes off the loser. Those foreign businesses, and the law that protects them, don't care that an Internet file comes from somewhere far away in the real world. They just care that it pops up in a physical location in their part of the world, and that's a no-no. I can't imagine that the courts are going to be that willing to entertain the idea that a foreign entity should be excused for local effects on their business just because those effects come from a server that's nowhere near there.

Project Gutenberg is probably going to have to make some changes to how it operates in order to get along in today's globalized Internet world. Hopefully it can figure out how to do that with little enough additional time, effort, and money involved to be able to continue providing its core services.
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Old 03-06-2018, 08:34 PM   #60
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No, the plaintiff is demanding that Gutenberg stop its illegal behavior: making still-copyrighted books available in Germany, where it doesn't hold the copyright to them.
Gutenberg is making books available on its servers. What they are making available is legal where they are making it available. Those servers are in the US. It is the German ISP's who are granting access to the routers, that grant access to the routers, that grant access to the US servers. If the German people want to take that path to get a book, they're coming onto US territory (so to speak). Just as if they took a boat to America and walked into a bookstore here.

It is also possible for a German tourist physically visiting the US to purchase something that is illegal in Germany and take it home. It is not the seller in the US that is responsible for preventing that.

If Germany thinks the internet is too open, and other countries should have to enforce Germany's laws, then they will probably find that is a futile path to go down. They can hold their own people prisoner from the internet if they think that is necessary. They can probably buy the software to do that from North Korea or Iran.
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