„Gutenberg.org loses to German publisher and is found liable for damages” – Beitrag von RA Mirko Brüß für „TheIPKat”

RA Mirko Brüß berichtet für das englischsprachige Blog „TheIPKat“ über das von WALDORF FROMMER geführte Verfahren des S. Fischer-Verlags gegen die Betreiber der Webseite gutenberg.org.

Von der Webseite Gutenberg.org konnten zahlreiche eBooks kostenlos heruntergeladen werden. Während die betroffenen Werke nach US-Recht bereits gemeinfrei sind, sind sie in Deutschland allesamt noch urheberrechtlich geschützt. Der Verlag hielt die Verbreitung der Werke nach Deutschland daher für rechtswidrig und klagte vor dem Landgericht Frankfurt am Main, das ihm mit Urteil vom 13.02.2018 Recht gab.


The IPKat vom 08.03.2018

In a year-long legal battle between the ‘not-for-profit-corporation’ Project Gutenberg Literary Archive Foundation, its CEO and the German publishing house S. Fischer Verlag GmbH, the District Court of Frankfurt (Landgericht Frankfurt am Main) has found Gutenberg in breach of German copyright law.


Project Gutenberg is an online archive for free eBooks that has around 56,000 eBooks in its catalogue. Supposedly, the copyright has expired for all the works that are available for download. They are in the public domain, the operators state, arguing that most works were published before 1923, the copyright term being 56 years after publication. While the website’s main interface is in English, users can switch to other languages such as German or French. Gutenberg offers books in various languages, hundreds of which are available in German. Project Gutenberg offers a ‘disclaimer’ (in English) on its website, in which users from countries other than the USA are encouraged to check whether the work they intend to download is (still) protected by their local copyright or not. The books were offered under a ‘Gutenberg License’ which states (among other things):

This eBook is for the use of anyone anywhere at no cost with almost no restrictions whatsoever. You may copy it, give it away or re-use it under the terms of Project Gutenberg License included with this eBook or online at www.gutenberg.org.”


Fischer is a long-established publishing house that owns the exclusive rights to various works by authors Heinrich Mann, Thomas Mann and Alfred Döblin. The publisher found that at least 18 books by these authors were available in German for free download from Project Gutenberg to users in Germany. After unsuccessfully requesting the website to remove the books from its servers, the publisher took the website to court.

Fischer requested the District Court of Frankfurt to enjoin Project Gutenberg Literary Archive Foundation and its CEO from making these 18 books available to the (German) public. It further asserted a claim for disclosure of information about the scope of the infringements and requested the court to rule upon the question whether the site is liable for damages, without asking for a specific amount. This is common practice in IP-related litigation, since it is hard or impossible to specify damages until the scope of the infringements is clear.

The District Court’s judgment

After several years of litigation, the District Court of Frankfurt sided with the plaintiff. It found Project Gutenberg and its CEO liable for copyright infringement under German law and as such, liable for disclosure of information and damages as requested by S. Fischer. The website was also enjoined from further making available to the public the 18 books in questions, albeit limited to downloads from Germany.

The judges first looked at their jurisdiction over the case and affirmed it on the grounds of § 32 ZPO (Zivilprozessordnung, the German law on civil proceedings). It is very similar to Art. 7 (2) of the Regulation No 1215/2012 and establishes a special jurisdiction in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred. While the defendants argued that their website was not aimed at German users, the judges disagreed. They found enough evidence that the website was indeed intended for use by German users as well. To support their view, the judges pointed out that the website was available in German, that eBooks in German were made available for download and that Project Gutenberg intended to reach a world-wide audience, according to their licence (“This eBook is for the use of anyone anywhere at no cost”). They also turned one argument of the defendants against them, by highlighting that the ‘disclaimer’ which stated users from outside the USA “must check the copyright terms of their countries before downloading” showed that Project Gutenberg was expecting downloads from foreign (non-US) countries.

Curiously, the court did not discuss which law would govern the case, as it just applied German (copyright) law. However, this result is in-line with EU-Law (Art. 8 (2) of Regulation No 864/2007 – Rome II) and CJEU jurisprudence (C-173/11 Football Dataco, para. 31), since S. Fischer sought protection for the territory of Germany. […]


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