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Project Gutenberg – Pirate?

Now this is an interesting story for a Monday morning.

The SF author Greg Bear is in the middle of a wrangle with Project Gutenberg (PG) over whether some of his stories are in the public domain. He says no, PG say yes.

This story hinges on SF stories originally published in magazines in the 1950s and early 1960. In a lot of cases the stories didn’t get the required copyright renewal, which would mean that the story is in the public domain. Well, US copyright case law disagrees with that conclusion. You’ll need to read the full statement to find out why.

Do you remember how I told you yesterday that US copyright law was incredibly complicated? Here’s an example.

Here is the statement Mr. Bear released:

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 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, 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
Greg Bear

via e-reads

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Luqman November 29, 2010 um 11:04 am

And what is Gutenberg’s response? This could be another "Siddhartha" incident. Anderson’s work may have been posted in mistake, but this doesn’t mean that Bear’s was.

Jane November 29, 2010 um 6:46 pm

Or it could mean that the authors didn’t renew the copyright. There should be paperwork to show if it happened or did not happen.

Nate the great November 29, 2010 um 6:51 pm

The problem with a lot of these titles is that the author later published them elsewhere. The author then renewed the copyright on the other publication. PG claimed that the story in the magazine was not under copyright becuase th magazine copyright was not explicitly renewed.

Case law says PG are wrong, and that’s what the Bears are saying.

Jane November 29, 2010 um 8:34 pm

I’ll have to read the case law but I don’t think it is as definitive as the authors are claiming.

Nate the great November 29, 2010 um 8:58 pm

Oh, yes, you’re a lawyer. I would like to hear your opinion.

cde November 30, 2010 um 3:21 am

9th Circuit is routinely overturned, and 2nd Circuit as well. Additionally, rulings from any given circuit apply only in those circuits, until a SCOTUS ruling affirming or denying it.

Finally, the 2nd Circuit ruling is in regards to stories being immediately going into Public Domain. PG is saying that the stories have lost their copyright status for failing to renew as required, which would legally make the stories Public Domain. If the exact version of the story from say another magazine does not still have a *currently valid* copyright claim, then PG would be right. Until a court case and ruling claims that those stories, even having lapsed due to non-renewal of copyright on the magazine’s part still carry valid copyrights to this day, anything else is pointless conjecture.

As it stands, if they did not renew, it is in Public Domain.

Some Record Searcher November 30, 2010 um 5:23 am

Actually, if you look at the Registration on the Library of Congress site (RE0000148449 at, it’s quite likely that both the 1952 and the 1953 work are in the public domain.

Anderson was required by the laws of the time to properly state the scope of the work he was registering. There’s a field for "Claim Limit," (new matter, additions, revisions to the 1952 work), or he should have in good faith included a "previously published as" on the 1953 Registraton.

The laws of the time were rather strict in these matters.

Depending on personnel, magistrate’ll probably throw the registration out before this case ever gets to trial (not that that’s likely.

betazed November 30, 2010 um 6:33 am

The biggest concern is that he thinks that people who do not WANT to seek the protection should be protected anyway. Some authors have the right idea. They don’t need to be richer than God, they’ve made money on the story, now it is time to release it to the public so that it can inspire and be built upon like all other art.

Nate the great November 30, 2010 um 7:08 am

But he’s also arguing that authors who did try to protect their work should be protected. Those are the authors who will be fighting with PG now.

Zigwalski December 1, 2010 um 12:01 am

Also, sci fi writers tend to be very bad about predicting the real future. How are they suppose to know that these stores from 50 years ago might be publishable today and make money? This industry is just starting to grow.

Luqman December 1, 2010 um 8:46 am

Too bad for them. They gambled wrong. You don’t get to whine and complain and grab things back from the public domain.

ZeEagle December 3, 2010 um 3:37 am

What frustrates me is the PG is often the only way to obtain a copy of many out of print science fiction short stories and other publications.

Greg Bear’s works published on PG were not available in printed form or any other format. Surely, PG was doing a service to fans and bear himself by ensuring the work was available outside of a few out-of-print magazines.

The Artolater » Friday Links December 3, 2010 um 6:53 am

[…] * How Project Gutenburg is fighting with some old sci-fi writers. […]

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