The online site Project Gutenberg (PG) is systematically declaring copyrights void in many literary works published in the 1940s, 1950s, and later, with a special focus on stories published in science fiction pulp magazines. Project Gutenberg then makes these works freely available on the internet though their website, where the scanned texts are further disseminated by manybooks.net and other online text outlets.
After conducting legal research on the LEXIS database of legal cases, decisions, and precedents, we have demonstrated conclusively that PG was making incorrect determinations regarding public domain status in many, many works that originally appeared in magazine form. The Poul Anderson estate has been able to get one work, “The Escape”, that PG had firmly declared to be public domain, removed from their site. PG’s original reasoning was that since the magazine it appeared in had never actually filed for copyright, the work was unprotected. “The Escape”, printed in 1953, was the first half of Anderson’s well-known novel BRAINWAVE, which was published and properly copyrighted the following year.
However, even if ‘The Escape” had not been published as a novel, it would have remained under copyright protection until 1981 (28 years) and been eligible for copyright renewal. Authors of that era, and Anderson in particular, were very aware of the need to renew copyrights, and typically meticulously kept their copyright protections up to date. Copyright law for works created more recently is much easier: life plus 70 years. (Sonny Bono Copyright Term Extension Act, 1998).
Why is a work that appeared in a magazine that did not file proper copyright paperwork protected by copyright law? The opinion in a major case in the US 2nd Circuit Court, Goodis v. United Artists Television, explains: ”. . . “We unanimously conclude that where a magazine has purchased the right of first publication under circumstances which show that the author has no intention to donate his work to the public, copyright notice in the magazine’s name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or proprietor.” The opinion goes on at length regarding the creation of copyright at the time of publication. The full text of Goodis is available here.
A second major case in copyright law, Abend v. MCA, Inc., Universal Film Exchange, James Stewart, estate of Alfred Hitchcock, et al, in the 9th Circuit, upholds this ruling and references Goodis lavishly. The full text of Abend is available here.
According to an email from Project Gutenberg’s CEO, Dr. Greg Newby, PG has changed their procedures for research of copyright non-renewal following the takedown of the Anderson work, although as of this writing (11/21/10) they have not posted these changes on their website. Dr. Newby says PG has also put a hold on public domain determinations for non-renewals. They do not seem to be reviewing the status of works already posted.
Authors and estates with works that are listed as public domain on PG’s site need to check out the true copyright status of those works, If they are posted on PG in error, PG needs to be notified via a DMCA notice. This is a powerful tool, created by the Digital Millenium Copyright Act. A DMCA notice is a legal document that states the rights of the copyright holder and demands that illegally posted material be taken down. For a summary of the DMCA in general, go here. There are many online forms for the DMCA notices, such as this one.
DMCA notices also need to be filed with other sites such as manybooks.net, demanding removal of the texts from the sites. The DMCAs may not be honored until PG has pulled a title, as PG is considered the “gold standard” of copyright determination – all titles available there are thought (wrongly) to be free and clear for exploitation by anyone. Small, independent publishers are taking advantage of these treasures and making physical copies, usually with print-on-demand technology, and selling them through Amazon and other sites. Estates and authors should search out these publishers and make their rights known. Estates and authors can demand that publication stop immediately, and that all proceeds be turned over to them as the rightful copyright holder. It should be noted that these publishers don’t feel they are pirates, they feel they are merely taking advantage of opportunities that are perfectly legal. They are wrong, and need to be put in the right of it.
In general, Project Gutenberg is doing a tremendous service by making available texts that have truly long since fallen out of copyright, but they are clearly overstepping their original mandate. They are not merely exploiting orphan works, but practicing a wholesale kidnapping of works that are under copyright protection. Authors and estates need to aggressively take back what belongs to them.
– Astrid Anderson Bear