Why the Big Five {publishers} are a Big Deal

Recently, I was in Germany, and decided to browse Project Gutenberg. A site named after one of the most important publishers in history.

For those who don’t know, Project Gutenberg is a wonderful repository of books in the public domain. The site takes its name from the famed German inventor, printer, and publisher. Johannes Gutenberg introduced printing, and more important still, movable type, to Europe. This kickstarted the printing revolution of the 1400s. His innovations enabled mass production, laying the groundwork for a knowledge-based economy. Learning spread to the masses, democratizing education.

It thus seems appropriate to name a website devoted to taking advantage of new technology to spread knowledge after this influential German publisher.

But when I tried browsing the site in Germany, I did not see the familiar sepia tones of the Project Gutenberg home page. Instead, I saw big red letters. ‘Your IP Address in Germany is Blocked’.

Why?

It turns out that another German publisher, S. Fischer Verlag, filed a lawsuit against Project Gutenberg. S. Fischer Verlag is a unit of Holtzbrinck Publishing, one of the ‘Big Five‘ parent companies. The suit demanded the removal of 18 eBooks by Heinrich Mann (d. 1950), Thomas Mann (d. 1955), and Alfred Döblin (d. 1957).

In the USA, where Project Gutenberg operates, copyright (for books published before 1978) is based on the number of years since publication. The books named in the lawsuit were all written between 1897 and 1917. As such, they entered the public domain in the US in the 1950s, 60s, and 70s.
In Germany, copyright is valid for the author’s life + 70 years. Meaning, in Germany, these works will not enter the public domain until 2020, 2025, and 2027.

This time, it’s different

On the surface, it would appear this is yet another example of an old industry and set of laws struggling to deal with the affordances of new technology. I’m certain none of the authors, back in the 1800s and early 1900s, could have imagined that in 2015, a multi-billion euro conglomerate of publishers would file suit against a small group of volunteer literary archivists over “electronic books” distributed via something called the “internet”.

But this isn’t another music industry vs. Napster. Or movie industry vs. The Pirate Bay. Or even a television industry vs. YouTube situation.
For starters, Project Gutenberg’s activities – providing a public service by digitizing classic works as they enter the public domain and making them freely available – was and is completely legal in the US, where the site operates. As laws vary regionally, the site warns users it’s their responsibility to check local laws before downloading works from the site.

Why this is a big deal

The case is interesting to readers, writers, and language researchers for several reasons.

Firstly, the role of language in establishing jurisdiction.

The suit was filed, and eventually heard, in Germany. Project Gutenberg reports the advice it received states that US law dictates the proceedings should have taken place in the US system. After all, this is where both Project Gutenberg and the plaintiff (as Macmillan) operate. Project Gutenberg also reports they offered to undergo mediation via the World Intellectual Property Organization. The plaintiff reportedly declined, asserting the German courts were the appropriate venue for the suit because the site has some content in German. And the German court apparently accepted this rationale.

German = Germany?

The notion that a German court should have jurisdiction over a matter because (some portion of) a website’s content is available in the German language and accessible from Germany should be of great interest.
The German language is by no means exclusive to Germany. First, it is the or an official language in six countries. (Aside from Germany, there’s also Belgium, Austria, Switzerland, Luxembourg and Lichtenstein). In fact, Austria’s population has a higher proportion of first-language German speakers (93%) than does Germany (91%).

Italy, Poland and Brazil also have sizable municipalities in which German is a co-official or auxiliary language. German is a recognised minority language in Bosina and Herzegovina, the Czech Republic, Denmark, Hungary, Kazakhstan, Namibia, Romania, Russia, Slovakia and Ukraine. Not to mention the many German diaspora communities that speak German worldwide. There’s Argentina, Australia, Canada, Costa Rica, Paraguay, and of course, the United States. In fact, in the US, German is not only the third most commonly-spoken language, as Project Gutenberg points out, but is also widely taught in schools and colleges.

German is an international language

There are an estimated 175-220 million speakers of German (as a first or second language) worldwide. If we include those enrolled in German classes (regardless of attained proficiency), there’s around 280 million people with some knowledge of the language.

To put this into context, Germany has a population of only 85 million. And not everyone there speaks German as a first or second language. This means that fewer than a third of the people with some knowledge of German live in Germany. And less than half of all people who speak the language are German by nationality.

While there’s no official body regulating the use of the language, there is an official Council for German Orthography. The council regulates the spelling and writing of German. And, it includes 41 members, drawn from across the ‘German Sprachraum’ or German-speaking areas. Fewer than half of the members are from Germany.

German is an international language. It is a key language in the EU. It is spoken by people all over the world. And the writing of the language is even regulated by people from a wide geographic region. Not tied to a single country.

It seems odd to me that the language something’s written in would support arguments for jurisdiction. Especially in the case of an ‘international language’ like German.

Imagine if England had jurisdiction over the English-speaking internet

To claim German courts have jurisdiction because the site is available in Germany and has some (minor) content in German seems as ludicrous as suggesting English courts have jurisdiction over not only the 54% of web pages that are in English, regardless of their origins or user base, but all other web sites (probably most of them!) that contain any percentage of English vocabulary and are available in England.

Whose books are they, anyway?

Secondly, Project Gutenberg reports there are gaps and irregularities in the plaintiff’s claim to the copyrights of the 18 items under question. Some of the licensing agreements presented to the Court dated after Project Gutenberg had already published the works. Other agreements bore dates after the filing of the lawsuit.

Many of the books concerned were published by other companies, subsequently acquired by the Plaintiff. According to Project Gutenberg, the Plaintiff hasn’t produced evidence of continuous right holding. This case also brings to the fore the question of ebook rights, and ‘worldwide’ rights.

Added together, what concerns me is the possibility for giant corporations to go around buying up expired or soon-to-be-expired intellectual property. And to then use this as a weapon to strike out at small volunteer groups trying to make literary works accessible.

Reader’s freedoms and DRM

This isn’t the first time Holtzbrinck has attacked readers’ freedoms. In 2006, the parent company forced Tor Books to stop making ebooks available via Baen eBooks. Unlike most ebook suppliers, Baen does not use Digital Rights Management (DRM).

The Free Software Foundation has described DRM as ‘imposing technological restrictions that control what users can do with digital media’. Publishers – and even some authors – argue DRM prevents piracy. But it also stands in the way of many of the freedoms we used to take for granted with paper-based books. Sharing a book with family or friends. Copying portions of books for the fair use purposes of review and research. Or, the very basic right of owning the thing you paid for. As the Free Software Foundation notes, when Microsoft decided to close their DRM-locked ebook store, its customers simply lost the books they had acquired via this platform.

And it isn’t just Holtzbrink and its associated companies that deserve our scrutiny.

Education and publishers

My first feelings of skepticism regarding publishing companies arose when I worked as an academic at a university. There, I saw the influence big publishers had on higher education. Both by monopolizing the production of textbooks in many fields, and attempting to create platforms to capitalise on teachers’ work for profit. It’s noteworthy that the biggest of the Big Five publishers of fiction and non-fiction, Pearson, is also one of the biggest players in textbooks.

A recent Vox report shows that the ‘Big Four’ textbook publishers (Pearson, Cengage, Wiley, and McGraw-Hill) control over 80% of the textbook market in US universities. While publishers claim digital options help make textbooks more affordable, textbook costs in the US have risen 63% between 2006 and 2016. This is more than triple what we would expect based on inflation over this period (19%).

In the K-12 sector, competition is even more elusive, with the ‘Big Three’ (Pearson, Houghton Mifflin Harcourt and McGraw-Hill). John Oliver’s Last Week Tonight featured a full segment exposing the effects of Pearson and other publishers’ for-profit standardized testing on elementary, middle, and high school education.

Although Holtzbrinck later reversed its decision about Tor’s Baen distribution (6 years later!), the potential for giant companies to restrict the freedoms of readers, and the freedoms of creatives (including not only writers and illustrators, but publishers too) is great. The more power is consolidated into an increasingly small number of hands, the worse these problems will become.

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