Court Order to Block Access from Germany

This page provides information about a lawsuit which was brought against the Project Gutenberg Literary Archive Foundation (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).



Decision translated into English.

PGLAF complied with the Court's order on February 28, 2018 by blocking all access to 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, 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 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.

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 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.

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 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.

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 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.

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 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.

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. Der Untertan 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.

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 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 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.

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 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.

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 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.

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 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.

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 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.

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 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.

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 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 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.

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 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.

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) 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.

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) 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.

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 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:

Remove the 18 books, or at least make sure they are not available from Germany. PGLAF complied by blocking access to 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. 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. 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. One quick method is to make a Paypal donation to

donate2019@pglaf.org

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, 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.

Most recent significant update: December 30, 2018; minor spelling updates July 28, 2019; updated a link August 27, 2020.