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http://www.teleread.org/blog/2004_10_24_archive.html#109882938565501362
Gone With the Wind Margaret Mitchell heirs threaten Project Gutenberg
Heirs of Margaret Mitchell have threatened the U.S.-based Project Gutenberg and Project Gutenberg of Australia--charging infringement of copyright.
The Stephens Mitchell Trusts wants Australian Gutenberg volunteers either to remove Gone With the Wind from their servers or else take steps to prevent downloads in countries where copyright law bans unauthorized distribution of the 1936 classic.
Otherwise, a lawyer for the heirs says in email and a certified letter, "we will take all appropriate steps to protect and enforce our clients' rights."
Special interest law vs. American culture
Welcome to the world of the Sonny Bono Copyright Term Extension Act, which corrupted U.S. copyright law at the request of the Hollywood elite, other entertainment moguls and rich heirs. Over time, the term extensions will cost society billions and harm valuable cultural activities.
Had the special-interest legislation not been passed, cash- strapped Gutenberg would not be facing this threat since the classic would be legal to download by now.
And yet U.S. politicians of both parties, fat with campaign donations from Hollywood, generally refuse to speak out against the Bono Act. The Kerry-Edwards campaign has been deaf to Bono-related pleas from me and others despite some possible progress on other copyright matters. Meanwhile U.S. media blithely report on entertainment-industry donations to candidates without a word of Hollywood-bought laws like Bono.
Estate: Gutenberg set up Australian PG for illegal downloads
In using the Bonoized copyright law to harass Gutenberg, New York lawyer Thomas Selz wrote:
"It appears to us that Project Gutenberg established PGA to permit the illegal downloading of works that are still subject to copyright protection in the U.S. and elsewhere. Project Gutenberg’s and PGA’s willful, knowing and unauthorized distribution of GWTW to users in the U.S. and elsewhere where copyright protection remains available is a blatant violation of our client’s rights under applicable statutes and common law."
Let's hope that the likes of Larry Lessig and the Electronic Frontier Foundation can slap down this harassment immediately. Could they even threaten a countersuit? If the estate successfully sued, Gutenberg-style organizations throughout the world might have to adhere to the strictest copyright laws in the cosmos or risk situations such as the one with Gone With the Wind. Hollywood can well end up buying off the legislators of certain Third World countries.
There are also implications if INDUCE-style proposals are revived, since lawyers might have more legal ammunition in their claims that the U.S. Gutenberg is inducing infringement by Americans able to download Gone With the Wind.
Two legal traps
Meanwhile the Gutenberg volunteers face a possible legal trap--in fact, two. If the Australian Gutenberg takes down the novel without a request from the American PG even though Australian law does not require this, Margaret Mitchell's estate may just say the two groups are in cahoots with each other. The estate might claim that the Australians were trying to protect the Americans. If the U.S. Gutenberg asks for a take-down, the estate might also claim a close relationship.
A related argument might be trademark. The estate lawyers may use this as further evidence of an actual tie.
The good news is that the Mitchell estate is already a laughingstock among many in U.S. legal circles for its silly suit against an author for a parody of Gone With the Wind (too bad that Houghton Mifflin felt compelled to settle, given the absurdity of the suit). That outrage is itself a textbook case of the need for a robust public domain, so that image-fixated heirs can do minimal damage to still-productive authors and publishers. Last I knew, Margaret Mitchell hadn't written any new works lately. Isn't copyright law supposed to encourage the arts and sciences, including, presumably, literature? And yet, with or without Bono, Miss Mitchell wrote Gone With the Wind.
Significantly, Margaret Mitchell died in on August 16, 1949. Without the Bono Act, the book's copyright would have expired in 1999. Now, however, in the States, the book apparently won't enter the public domain until 2019. With this situation in mind, it is high time that Congress either repealed Bono or at least mitigated it--lest greedy heirs and Doberman lawyers shut down worthwhile efforts like Gutenberg.
Meanwhile Australia, which appears on the cusp of increasing copyright terms past the 50-year mark, would do well to consider the repercussions before letting wealthy American heirs and donation-crazed U.S. politicians dictate law to them. The expected changes in Australian copyright law would not have come out without U.S. pressure by way of a trade agreement.
Yet other issues arise. Given the threat from black suits, I am reluctant even to provide a link to Project Gutenberg of Australia, much less to the the e-text of Gone With the Wind.
If you cherish culture and freedom to link, speak up now to your favorite presidential candidates and your local Congress members. Guess what other work is free in Australia but not in the Bonoized United States. Nineteen Eighty Four. In curbing our freedom of speech with onerous copyright laws, our politicians have done Big Brother proud.
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Below, in its entirety, is material that went out over the gutvol-d mailing list.
From: dlainson@sympatico.ca
Sent: Tuesday, October 26, 2004 4:03 PM
Subject: [gutvol-d] [Fwd] Copyright Infringement of Gone With the Wind
Hello
Here's a letter (which I'm apparently breaking some US law by forwarding, but I'll take the risk) which I find disturbing. Seems that "Project Gutenberg established PGA to permit the illegal downloading of works". Of this I wasn't aware. As a big contributor to PGA it concerns me personally, as well as setting a very dangerous precedent.
Does one country have the right to dictate to another what a website can contain when it falls within the law of the host country, and can they force some sort of restrictions on the downloading of material?
Don.
------- Forwarded message follows -------
From: "Col Choat"
To: "Don Lainson"
Subject: FW: Copyright Infringement of Gone With the Wind
Date sent: Tue, 26 Oct 2004 09:36:48 +1000
From: Gonzalez, Dalgis [
mailto:dgonzalez@fkkslaw.com]On Behalf Of
Selz, Thomas
Sent: Tuesday, 26 October 2004 6:29 AM
To: colc@gutenberg.net.au
Cc: Paul Anderson Sr. (E-mail); Paul Anderson Jr. (E-mail); Thomas
Hal Clarke (E-mail); Thomas Hal Clarke (E-mail 2); Selz, Thomas
Subject: Copyright Infringement of Gone With the Wind
October 25, 2004
Certified Mail-
Return receipt Requested
Project Gutenberg
405 West Elm Street
Urbana, IL 61801
By e-mail (colc@gutenberg.net.au)
Project Gutenberg of Australia
Re: Copyright
Infringement of Gone With the Wind
To Whom It May Concern:
We represent the Stephens Mitchell Trusts (the “Trusts”), the owner of the copyright to the book, Gone With The Wind (“GWTW”). There are copyright provisions around the world, including, without limitation, the United States Copyright Act, 17 U.S.C. §101 et. seq, which grant the Trusts, as copyright owner, the exclusive right to reproduce and distribute GWTW in the United States and elsewhere.
It has come to our attention that Project Gutenberg’s affiliate, Project Gutenberg of Australia (“PGA”), is publishing GWTW in electronic book form on its web site located at www.gutenberg.net.au (the “Web Site”). The Web Site states that PGA “produces etexts in accordance with Australian law” and that the books available on its site are in the public domain in Australia. While the Web Site warns that some of its ebooks may still be protected by copyright in the U.S. and suggests that U.S. users check U.S. copyright laws or visit Project Gutenberg’s U.S. web site for its list of public domain works, there is nothing to prevent any U.S. user from simply downloading GWTW from the Web Site. Indeed, we were able to do so easily.
It appears to us that Project Gutenberg established PGA to permit the illegal downloading of works that are still subject to copyright protection in the U.S. and elsewhere. Project Gutenberg’s and PGA’s willful, knowing and unauthorized distribution of GWTW to users in the U.S. and elsewhere where copyright protection remains available is a blatant violation of our client’s rights under applicable statutes and common law. Please be advised that Project Gutenberg and PGA are subject to U.S. copyright law and to jurisdiction in the U.S. for their infringing activities through applicable jurisdiction statutes governing the commission of acts of infringement that either occur in the U.S. or have an effect in the U.S.
On behalf of the Trusts, we hereby demand that Project Gutenberg and/or PGA confirm to us within five (5) days of receipt of this letter that you have removed GWTW from the Web Site entirely or that you have taken all necessary steps to prevent the downloading of GWTW in all places in which it is protected by copyright.
Please be advised that if we have not received confirmation of your willingness to comply with the foregoing demands, we will take all appropriate steps to protect and enforce our clients’ rights.
This demand is without prejudice to all of the Trusts’ rights and remedies in this matter, both legal and equitable, all of which are specifically and expressly reserved.
Very truly yours,
Thomas D. Selz
cc:Paul H. Anderson, Sr., Esq.
Paul Anderson, Jr., Esq.
Thomas Hal Clarke, Jr., Esq.
Dalgis E. Gonzalez
FrankfurtKurnit Klein & Selz, PC
488 Madison Avenue
New York, New York 10022
Tel: (212) 980-0120 x6735
Fax: (212) 593-9175
E-mail: dgonzalez@fkkslaw.com
This e-mail and any attached files are intended solely for the use of the individual or entity to which this mail is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. Any use, disclosure, copying or distribution of this e-mail or the attached files by anyone other than the intended recipient is strictly prohibited. If you have received this e-mail in error, please notify the sender by reply e- mail or collect call to (212) 980-0120 and delete this e-mail and attached files from your system. Thank you.
------- End of forwarded message -------
Don Lainson
dlainson@sympatico.ca
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Update, 6:34 a.m., October 27: We've just been Slashdotted--the Mitchell outrage made the top of the home page. Meanwhile check out an old Dan Gillmor article about the estate's war against the Gone with the Wind parody. Among the tidbits there:
In 1790, copyright terms lasted 14 years, with a 14-year
renewal period. But in this century of big and powerful media companies, Congress has turned the idea of "limited'' into something perversely long, with repeated extensions...
When Mitchell wrote the book, the maximum term was 56 years, said Lawrence Lessig, professor of law at Stanford University. In other words, the copyright should have expired in 1992, and Scarlett O'Hara and her cohorts should have entered the public domain, where any author could do anything he or she pleased with the work.
So speak up to politicians! Remember, Jack Valenti, until recently
boss of the MPAA and more than a little friendly with top pols, favors eternal copyright short of a day. But isn't it better instead to worry about compensation for living writers rather than their obnoxious heirs? I can understand concern over wives, children, and so on, but pre-Bono terms were sufficient.
Needless to say, a TeleRead-style national digital library system could send money in the direction of publishers, writers and other content-providers and indirectly help wives and children in and here and now. Given that most copyrighted books go out of print after a few years, this approach would be far fairer to the creative community than a legalistic one.
The Bono mess is symptomatic of a sick publishing industry under treatment by well credentialed quacks who, to quote one definition of quackery, "sell false hopes to the gullible." I'm convinced that certain attorneys and software companies (no names given here) are actually bigger threats to publishers and writers than pirates are. If conned publishers were not so keen on Draconian DRM and accompanying laws--which scare the devil out of consumers eager to own e-books for real--the e-book industry by now would far larger today. Global sales are perhaps $40 million annually, less than what Tom Clancy alone makes in a good year. See why "quack" is just right, if you're talking about competence at helping e-books take off and getting Americans interested again in serious reading? Improved access to books and education in general is the real way to grow publishing. But too many attorneys and software companies lack the vision to care. Profit-minded publishers should worry less about the "protection" and more about revenue--often two wildly contradictory things. In this context, obscenely stretched copyright terms are counter productive. I'm pro-copyright, pro-profit, but let's have balance. The young people reading Gone with the Wind just might go on to buy more modern e-books. By the way, at least at Amazon.com, I don't see a listing for an e-book version of GWTW, not even in DRMed form.
Update, 5:01 p.m., October 27 Turns out that even without Bono, Gone With The Wind still wouldn't be in the public domain today. But it is part of a nasty pattern of extensions and does delay for 20 years when GWTW will be available, thus increasing for Gutenberg possibility of legal harassment.
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