[zmix]

In Germany, the concept of "Public Domain" does not exist. (EDIT: It may exist 70 years after the authors death). IANAL.

Besides that, even if it would, the books would not have been in the Public Domain. From the announcement:

> In Germany, they are copyrighted based on "life +70 years" of copyright protection (so, copyright will expire after 2020, 2025 and 2027, respectively).

From a legal and business perspective, neither German legislation nor the Fischer Verlag are at fault here. It's just the way it is (in Germany): Creators hold their intellectual property for life and can make sure, their heir profits from the work of the (grand)parents, as well (+70 years after death of copyright holder).

And while I understand, that Project Gutenberg has limited resources and may have no desire to do the extra work of blocking works on a case by case basis, it would not have been difficult. Instead, they have chosen to collectively punish all people from Germany, which resulted us to be seven years without access, at least as long we did not utilize a VPN.

I am very happy, that this has been resolved now. All the legal hassle has cost (non-profit) money and was worthless, because the solution is the same now, they could have implemented seven years ago.

[pgeorgi]

> In Germany, the concept of "Public Domain" does not exist. (EDIT: It may exist 70 years after the authors death). IANAL.

Works are "gemeinfrei" (approx. "public domain") 70 years after the author's death, or 70 years after publication for non-natural persons holding a copyright (e.g. corporate copyright).

What you might think of is that there's no official way for an author to release works into the public domain in Germany.

That, and the life+70 idea, comes from the personality rights angle that underlies German (and other European) copyright: Personality rights are protected for 70 years after death, probably under the assumption that everybody who cares deeply about a person (instead of being potentially offended in some abstract sense) is also gone by then. Works are considered an embodiment of the personality of their author, and so they receive the same kind of protection. Just as you can't give away your personality rights, you can't give away all rights to your work[1]. Their commercial value, while more important these days, played a secondary role in the creation of this concept.

In comparison, the Anglo-Saxon copyright tradition (based on Statute of Anne of 1710[2]) cares primarily about protecting the commercial value and exploitation rights of the works, with little concern about how "remixes could attack the honor of the author"[3] or anything like that.

[1] Of course you can trade away commercial exploitation rights.

[2] https://en.wikipedia.org/wiki/Statute_of_Anne

[3] To paint the German position with a very broad brush

[orra]

I know Germany doesn't do legal precedent, but is there actually any case law demonstrating works can't be put into the public domain?

The idea it can't be done is a trope at this point, but I am frankly skeptical.

Moral rights to recognition aside, copyright can be sold, like any other property. Why do we think it can't be abandoned, again like any other property?

[pgeorgi]

§42 UrhG (https://www.gesetze-im-internet.de/urhg/__42.html, english translation https://www.gesetze-im-internet.de/englisch_urhg/englisch_ur...) is probably core to what an author can do about their personality rights in relation to their works:

---

Section 42 Right of revocation for changed conviction

(1) The author may revoke a right of use vis-à-vis the rightholder if the work no longer reflects his conviction and he can therefore no longer be expected to agree to the exploitation of the work. The author’s successor in title (section 30) may exercise the right of revocation only if he can prove that the author would have been entitled to exercise this right prior to his death and that he was prevented from exercising the right or provided for its exercise by testamentary disposition.

(2) The right of revocation may not be waived in advance. Its exercise may not be precluded.

... (more stuff that is about compensation and how you can't use this clause to just start to exploit the works on your own after taking it out of circulation, but not relevant here) ...

---

Putting stuff into the public domain would either mean:

- that an author waives their right to revocation in advance (that "rightholder" would be the public, I guess), but that's explicitly forbidden by (2) or

- that they can claw back the work from the public domain, which keeps the work in some weird state where it's PD-unless-the-author-objects.

The only way to put a work into something that is somewhat similar to the public domain under German copyright (without dying and waiting for 70 years) is to publish it anonymously with a dedication to the public, so that redistribution etc is clear, and then remove all traces that you authored it (e.g. drafts, notes, ...) - and even then it falls back to you if somebody starts digging and finds proof of authorship (§66 (2) https://www.gesetze-im-internet.de/urhg/__66.html, english translation https://www.gesetze-im-internet.de/englisch_urhg/englisch_ur...). Any legal conscious redistributor wouldn't touch something like that with a 10 foot pole.

Just use CC0, it's cleaner.

As for

> Why do we think it can't be abandoned, again like any other property?

You can't sell yourself into slavery. That's the category personality rights operate in. Does it make sense for copyrights? ¯\_(ツ)_/¯

[ghaff]

>Just use CC0, it's cleaner.

Which is probably fine for most text. Although note that CC0 was withdrawn from consideration by the OSI as a software license primarily because of issues around the patent language. (Basically the license does not grant patent rights which, depending on one's position about implicit grants, may or may not be an issue.) MIT-0 may be a better choice for software as a result.

[pbininda]

Small addition: the UrhG mentioned is the Urheberrechtsgesetz. Translated to English you would call it the "Law of rights of the originator". It is not just about "the right to make copies".

[kps]

The English term is ‘moral rights’.

[pgeorgi]

Urheberpersönlichkeitsrecht (what is called "moral rights" in English) is a subset of Urheberrecht.

UrhG covers copyright and moral rights, some stuff at the intersection, and then some, but on the other hand lacking a few bits covered by US copyright.

1:1 mappings between legal regimes seem to be quite rare.

[orra]

Thanks for the detailed answer.

[kevin_thibedeau]

Richard Hipp has had to gin up a license for SQLite because of this.

[Archelaos]

The incompatiblity of U.S. and German copyright law is not so much in the momentary duration, which in both jursidictions is 70 years after the author's death (exceptions apply to anonymous publications). The major incompatiblities arise from the regulations which were in place before the durations were harmonized (for the U.S., prior to 1978).

On an international scale, the situation is more complicated. Rougly speaking, the range for the duration of copyright is from "life + 50 yrs" up to "life + 100 yrs". Wikipedia has a list of these.[1] There are many countries where works from up to the early 1970s are already in the public domain that are still under copyright protection in the U.S. for up to the next 20 years. In principle, problems may arise if the country in which a work is published in the Internet sets a shorter term of protection than the maximum term in this list.

[1] https://en.wikipedia.org/wiki/List_of_countries%27_copyright...

[SkeuomorphicBee]

> And while I understand, that Project Gutenberg has limited resources and may have no desire to do the extra work of blocking works on a case by case basis, it would not have been difficult. Instead, they have chosen to collectively punish all people from Germany, which resulted us to be seven years without access, at least as long we did not utilize a VPN.

They explain their rationale for this and it is a very sound one, it is not about the difficulty to block, it is about opening themselves to lawsuits. Here is the relevant quotes:

> 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.

> [...] 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.

I agree with their assessment, once the German court decided that all international treaties and public domain basically don't exist, and decided that German courts have jurisdiction over the US, it means that ALL works on the project are equally "illegal" (or at least many, they can't know which ones), and therefore nothing on the whole site is safe to be accessible in Germany. Their only option was to block the whole site or open themselves to uncountable other lawsuits (and limitless amount of punitive damages).

As to how they reopened the site for Germany now, I can only speculate, but I imagine that in the settlement they somehow got some kind of assurance from the big publishers that they won't sue and seek punitive damages for other works. With that the project decided that the risk of lawsuit is now low enough to allow for opening for Germany.

[pgeorgi]

> ALL works on the project are equally "illegal" (or at least many, they can't know which ones)

Those whose authors aren't dead for 70 years (because we don't have the "pre-1978" loophole the US has). Probably (but here things get vague) even limited to stuff originating from German authors, even if it was also published in the US pre-1978.

> limitless amount of punitive damages

Punitive damages? In Germany?

> I imagine that in the settlement they somehow got some kind of assurance from the big publishers that they won't sue and seek punitive damages for other works.

Project Gutenberg tried to make a stand and then found out that practically nobody bothered to notice their protest. Now they stop making an ass of themselves. Good on them.

[germanier]

Which international treaties were ignored by German courts in these cases?

[ma2rten]

The OP writes: "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."

[germanier]

That's the biased interpretation of the PGLAF. Framing the whole thing as "unambiguous", "managed to find a German Court" and "some precedents" is disingenuous. There is a reason they don't refer to any precedent supporting their position: there is none. How can you say with a straight face that the issue is unambiguous when in fact there is precedence pointing in the other direction?

Note that the courts didn't ignore those treaties and or somehow ruled they weren't enforceable. They just have a different interpretation of the legal contents of those treaties than the PGLAF does. Law is often not black or white and anyone who claims there is just one true position doesn't tell you the whole truth. The issue is actually pretty interesting legally and there is a lot more subtlety to it than the claim that courts are somehow bending the law.

[dmos62]

Nitpick. German intellectual property laws are part of German legislation. Legislation is a body of laws. Maybe you meant the German legislative community. Well, it's their responsibility to maintain the legislation. Laws are not immutable.

[riedel]

I think our legislative has better things to do than to adopt US copyright law before 1978. Although it seems unpopular IMHO it would have caused project Gutenberg no harm to remove this few items until copyright is expired.

We are always complaining about China that they do not fully honor IP. I believe it is an ethical thing to do to honour the laws of the country were sth was originally created even if strictly legally speaking I can move around the world to circumvent unpleasant jurisdiction.

[dmos62]

I've very little respect for intellectual property. I don't see it as much more than a way to stifle culture and innovation in the sake of greed. You could have a sensible implementation of IP where an intellectual product can be considered your property for some short duration. Not decades though.

[wutbrodo]

> From a legal and business perspective, neither German legislation nor the Fischer Verlag are at fault here. It's just the way it is (in Germany): Creators hold their intellectual property for life and can make sure, their heir profits from the work of the (grand)parents, as well (+70 years after death of copyright holder).

I don't follow. Aren't you describing German legislation's choice to have extremely long copyright periods? How do you conclude that German legislation not at fault here?

[zmix]

I consider them long copyright periods, but not extremely long. I can tolerate life+70 years. Though, I'd prefer them, ideally, to be life+25 years and, considering life ain't ideal, life + 50. But I can live with life+70. But not more.

[themitigating]

Why isn't the legislative not at fault if they have the power to change but won't? The reasons you cite for having this long copyright could apply anywhere. So what's the difference between Germany and the US. Shouldn't we want this changed everywhere.

I'm really trying hard not to whatabout this but tone of understanding at the copyright laws in Germany just got to me.