A week or two ago we focused on the paradox that public domain books available for nothing from Project Gutenberg were being sold on Amazon (see Why Get It Free on Gutenberg when You Can Buy It on Kindle?).  The issue raised by Greg Newby, director of Gutenberg, was whether it was legal and ethical for publishers to charge for books that are available free. ”Is this legal? Yes. Is it ethical? I don’t think it is,” said Newby.

That question was fresh in our minds when Oprah’s Book Club announced that a Penguin double-volume, Charles Dickens’s A Tale of Two Cities and Great Expectations, had been selected for the Club.  A visit to amazon.com informed us that you may buy the Kindle edition for $7.99.  However, the individual titles, A Tale of Two Cities and Great Expectations, may be downloaded at no cost on Project Gutenberg. Furthermore, a number of other publishers, perhaps guided by the Mr. Newby’s moral position, offer e-book editions of these books for nothing.

Interestingly, one of the publishers offering free Kindle editions of the two titles is… Penguin itself. Here are links to the Penguin Classics editions of Great Expectations and Tale of Two Cities showing Kindle editions offered for $0.00.

To its credit Penguin does state on the page in the Kindle Store dedicated to the twin e-books: “PLEASE NOTE: Free versions of The Dickens classics, A Tale of Two Cities and Great Expectations are also available for download.” Also, again to be fair, Penguin does describe the twin e-books as enhanced.  We don’t know what those enhancements are, and it would be nice for potential customers to be told what extra value they are getting to justify paying $7.99 for something they can get for nothing. The Penguin Classics edition of Tale of Two Cities offered free on Kindle has an introduction and notes by Richard Maxwell.

Penguin and Oprah’s Book Club, having taken out an expensive full page ad for the twin volumes in the New York Times, obviously  have  great expectations of  profits. Wise shoppers may have other ideas, however.

Richard Curtis

In a post on the Washington Post‘s website Rob Pegoraro informs us that a number of public domain books offered free by Project Gutenberg are being sold on Kindle. Click here for details.

Pegoraro cites several books that you can get for nothing from Gutenberg but have to buy on Kindle: “Eldred Nathaniel Woodcock’s Fifty Years a Hunter and Trapper (free on Gutenberg, 99 cents on Amazon), John R. Lockard’s Bee Hunting ($3.69 as a Kindle edition) and Martin Hunter’s Canadian Wilds ($3.16 from Amazon). These titles appear to be sold with Amazon’s standard digital-rights-management restrictions, a limit absent from Gutenberg downloads.”

“The titles in question,” Pegoraro says, “aren’t just public-domain books that have long been freely available at such sites as Project Gutenberg. They appear to be the exact Gutenberg files, save only for minor formatting adjustments and the removal of that volunteer-run site’s license information.”

For those not familiar with Gutenberg’s practices, anyone wishing to publish or reprint a book in the Gutenberg program may do so by removing all references to Project Gutenberg, which is a non-profit organization.  Though there isn’t anything illegal about charging money for such a book, PG’s director Greg Newby put it this way “”Is this legal? Yes. Is it ethical? I don’t think it is.”

In defense of Amazon, the public domain titles are uploaded by third parties using Amazon’s self-service DPT platform, and though Amazon may not have the ability or inclination to police the uploads for Gutenberg origins, once it’s brought to their attention they usually “took immediate action”, according to Newby, which presumably means removed them from sale on Kindle.

By way disclosure, like every other reputable publisher E-Reads takes every diligent measure in requiring content providers to warrant that the works they publish in our program are protected by copyright, and we never knowingly publish works that have fallen into the public domain.  A few of our older titles are under review as they may fall into the same disputed copyright territory as the Poul Anderson work that was incorrectly released into the public domain by Project Gutenberg.  Should we determine that these works properly belong in the public domain we will remove them for sale and offer them free of charge.

Richard Curtis

Every Blogger owes a debt of gratitude to newspapers and magazines. This posting relies on original research and reporting performed by the Washington Post.

Dr. Gregory Newby, Chief Executive and Director of Project Gutenberg, issued a public apology to Greg Bear, Astrid Anderson Bear, and unnamed “others”, for a “determination of non-renewal” that was in error.  He said he was ordering removal of “The Escape,” the work that provoked the Bears’ complaint, from the Project Gutenberg collections and catalog. You can read that complaint here.

Below are the pertinent passages of Dr. Newby’s letter.  However, it does not address the question of liability for possible damages resulting from release of the work into the public domain and subsequent exploitation by publishers and other third parties.

Richard Curtis

*************************

Dr. Gregory B. Newby
Chief Executive and Director

Dear Greg, Astrid, and others:

My apologies for my long delay in responding. As promised in
September, I discussed the situation with one of Project Gutenberg’s
copyright lawyers. This particular lawyer had previously been very
helpful in preparing and then providing legal advice and feedback on
our procedures for determining non-renewal status.

Our lawyer advised that our non-renewal determination for The Escape
was in error. Therefore, on October 1, I removed The Escape from the
Project Gutenberg collections and catalog and announced its removal
to our mailing list.

On behalf of Project Gutenberg, I apologize for the error.

The error occurred because we did not know that Brainwave was a
complete publication of the serial parts of The Escape. We did know
from the publication of The Escape in 1953 that it was the first part
of a serialization, but did not know that Brainwave, from 1954, was
the title of the complete serialization.

We are working on enhancements to our procedures for serial works so
that we are more likely to find variations in titles such as happened
with Brainwave.

As a result of your complaint, we have received clarification from our
lawyer on situations where individual parts of entire works are
published serially, but only some of the parts, or only the entire
work but not the serial parts, are renewed. Until we received this
clarification, our procedure was that each part must have a separate
renewal for its first publication.

My long delay in responding is because our newly revised procedures
are not yet posted on our Web site. We’ve had some exchanges with the lawyer I mentioned, as well as among the Project Gutenberg copyright team and production volunteers. I do hope to have the revised procedures for non-renewals in place soon, and meanwhile Project Gutenberg has put a hold on public domain determinations for non-renewals.

*****************

For the complete text of Dr. Newby’s email, click here.

And for a complete archive of E-Reads postings related to piracy, infringement and other unauthorized use of copyrighted works, click here.

Dr. Gregory B. Newby
Chief Executive and Director

Dear Greg, Astrid, and others:

My apologies for my long delay in responding. As promised in
September, I discussed the situation with one of Project Gutenberg’s
copyright lawyers. This particular lawyer had previously been very
helpful in preparing and then providing legal advice and feedback on
our procedures for determining non-renewal status.

Our lawyer advised that our non-renewal determination for The Escape
was in error. Therefore, on October 1, I removed The Escape from the
Project Gutenberg collections and catalog and announced its removal
to our mailing list.

On behalf of Project Gutenberg, I apologize for the error.

The error occurred because we did not know that Brainwave was a
complete publication of the serial parts of The Escape. We did know
from the publication of The Escape in 1953 that it was the first part
of a serialization, but did not know that Brainwave, from 1954, was
the title of the complete serialization.

We are working on enhancements to our procedures for serial works so
that we are more likely to find variations in titles such as happened
with Brainwave.

As a result of your complaint, we have received clarification from our
lawyer on situations where individual parts of entire works are
published serially, but only some of the parts, or only the entire
work but not the serial parts, are renewed. Until we received this
clarification, our procedure was that each part must have a separate
renewal for its first publication.

My long delay in responding is because our newly revised procedures
are not yet posted on our Web site. We’ve had some exchanges with the lawyer I mentioned, as well as among the Project Gutenberg copyright team and production volunteers. I do hope to have the revised procedures for non-renewals in place soon, and meanwhile Project Gutenberg has put a hold on public domain determinations for
non-renewals.

In the meantime, I will summarize for you the main points that allowed
the renewal for Brainwave to apply to The Escape. Then, I will
provide a listing of the titles by Poul Anderson that we are working
with. That way, you might want to confirm whether our bibliographic
research (on title variations) and copyright research (on renewal
records) seems to be correct.

I would also like to offer to ask our lawyer to communicate directly
with your lawyer on any of the topics we have covered. If you would
prefer such an approach, please provide me contact information for
your lawyer, and I will give the information to our lawyer.

Here are the main points of variation from our old procedures as
they relate to what we have corresponded on:

- variant titles, new reprints, compilations, and other republications
of items need to be identified as part of our bibliographic research,
within the time span for valid renewals

- in serial works, the serial parts are considered to be part of the
same act of authorship as the complete work. Thus, renewals for the
parts, or the whole, may apply to the other parts
(this applied to The Escape)

- renewals due the 28th year after first publication may actually
appear in the copyright registry in the 27th, 28th, 29th or 30th year,
and still be valid

- for serial parts, our conservative stance is that renewals from the
25th through 32nd year for any serial part, or the whole, including
any type of republication, will be taken to apply to any parts within
that time span
(this applied to The Escape)

- copyrights or renewals outside of the time spans listed above, for
any type of republication, are not applicable to earlier publication.
That is, serial parts or whole works published but not renewed do not
become renewed by later republication outside of the 2-year (for
non-serials) or 4-year (for serials) window.
(this applies to Industrial Revolution)

By the way, we are checking again on whether the 1965 republication
Industrial Revolution was subsequently renewed.

Here are the items we have already published, along with their
Project Gutenberg eBook number:

Duel on Syrtis, by Poul William Anderson 32436
The Sensitive Man, by Poul William Anderson 31501
Industrial Revolution, by Poul William Anderson 30971
The Valor of Cappen Varra, by Poul William Anderson 29542
The Burning Bridge, by Poul William Anderson 22554
Security, by Poul William Anderson 22239

Finally, here is the listing of titles we are working with, along with
a synopsis of our bibliographic and renewal research.

“Security” by Poul Anderson. Originally published in _Space Science
Fiction_ February 1953. No publication after SSF 1953 until 2007.

“The Burning Bridge” by Poul Anderson. First published in Astounding
Science Fiction January 1960. Astounding January 1960 renewed as
RE-322-832 with a claim limitation of NEW MATTER: compilation and all
editorial material. No publication after Astounding 1960 until 2007.

“Industrial Revolution” by Winston P. Sanders. First publication was
in Analog September 1963. Analog September 1963 renewed as RE-517-946
with a claim limitation of NEW MATTER: compilation and editorial
material. We found the renewal for the other Poul Anderson 1963
publications. RE0000562489 does not include “Industrial
Revolution”. Next publication after Analog September 1963 is in Analog
3 in 1965. This one was apparently retitled to “The Rogue” in 1970
when combined with other Flying Mountain stories.

“The Valor of Cappen Varra” by Poul Anderson. Originally published in
“Fantastic Universe” by King-Size Publications, New York, NY in the
January 1957 issue. The next publication found was in Swords and
Sorcery December 1963.

“The Sensitive Man” by Poul Anderson. Originally published in
“Fantastic Universe” by King-Size Publications, New York, NY in the
January 1954 issue. The next publication was found in Beyond the
Beyond in August 1969.

“The Chapter Ends” by Poul Anderson. Originally published in “Dynamic
Science Fiction” by Columbia Publications Inc, New York in the January
1954 issue. From the James Gunn contribution, the original filing
number is B00000442865. The next publication after DSF January 1954 is
in Adventures in the Far Future / Tales of Outer Space in 1954. After
that is Novelets of Science Fiction in 1963. We did not find a renewal
for Adventures in the Far Future or Tales of Outer Space. (We did find a
renewal for Behind the Black Nebula by L. Ron Hubbard from that
anthology. RE0000146004 on A00000155444.)

“Duel on Syrtis” by Poul Anderson. Originally published in Planet
Stories March 1951 by Love Romance Publishing Co. Inc., New York,
NY. After the PS March 1951 the next publication found is Strangers
from Earth in 1961.

“Sentiment, Inc.” by Poul Anderson. First published in Science Fiction
Stories with a 1953 copyright statement by Columbia Publications,
Inc. Science Fiction Stories was a periodical with an irregular
publishing history. 1953 had one issue. Next publication was in
The Weird Ones in July 1962.

Included for completeness, but already determined to be renewed:
“The Escape” by Poul Anderson. It appears to have been first published
in the U.S. and British editions of “Space Science Fiction” Volume 2
Number 2 September 1953 simultaneously. After the SSF September 1953 publication it was published by Ballantine in 1954. Brainwave
renewed.

Again, my apologies for the long delay in this correspondence. I do
anticipate we will have a revised procedure description online soon,
but did not want to delay further before sending this correspondence.

With best regards,
Greg

Dr. Gregory B. Newby
Chief Executive and Director
Project Gutenberg Literary Archive Foundation http://gutenberg.org
A 501(c)(3) not-for-profit organization with EIN 64-6221541

** This message is granted to the public domain **

By misreading copyright law Project Gutenberg may have infringed the rights of some authors and improperly put their books into the public domain, say science fiction author Greg Bear and Astrid Anderson Bear, his wife and daughter of another SF author, Poul Anderson.  Gutenberg’s release of several Poul Anderson works into the public domain provoked an investigation by the couple, who have issued the statement reproduced below in its entirety.

RC

********************************

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
Greg Bear

***************************

For a complete E-Reads archive on piracy, visit Pirate Central.