Publisher must pay for using Goebbels' diaries

The Estate of the Nazi propaganda minister Joseph Goebbels has won its lawsuit against Random House publishing company in the case  the 1709 Blog first flagged up in April

Peter Longerich, professor of modern German history at Royal Holloway College at the University of London, published a new biography of Goebbels in 2010, originally in German, quoting extensively from Goebbels' diaries. Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics and who claims to represent Goebbel's heirs – brought an action in the Munich District Court against Random House and its imprint Siedler, despite the fact that under Germany law the term of copyright for literary works (life of author plus 70 years) meant Goebbel's work will enter the public domain on the 1st January 2016 (which the Munich court noted). No royalties were paid  by Random House to the Estate, which is thought to consist of the direct descendants of the propagandist's four siblings - as Goebbels and his wife Magda committed suicide in May 1945 after murdering their six children as Berlin fell to the Allies.

Newsweek tells us that Goebbels began writing a diary in 1923. He kept detailed accounts of his experiences and activities working with Hitler and the Nazi regime until April 1945, a month before his suicide. The diaries are one of the most significant sources of the internal workings of the Nazi political machine ever discovered. The diaries were published posthumously between 1993 and 2008 in 29 volumes spanning the period 1923-1945. The written diaries had been copied onto microfilm at Goebbels' request in 1945, and buried to avoid their destruction during the war. They were discovered in 1992 by German historian Elke Fröhlich in Moscow. The microfilm had been transported from their burial place in Potsdam in Germany to the Russian capital where they were discovered in the archival library following the collapse of communism. It took between 1993 and 2008 for the full collection of text to be published in German.

Joseph Goebbels (Wikimedia Commons)

Rainer Dresen, General Counsel for Random House Germany, told the Guardian back in April that an important principle was at stake. “We are convinced that no money should go to a war criminal,” he said. He has now told Newsweek that there should be a suspension of copyright laws on legal and moral grounds saying "We have more than a purely moral argument ..... the name of Goebbels appears on a list, written by the Allied Control Council [the authority which governed Germany in the immediate aftermath of the Second World War], of war criminals whose estate was banned from financial transactions." Dresen said he made a private and public offer to Schacht for Random House pay the royalties, so long as the funds were donated to a Holocaust charity rather than going toward the Estate, but she refused.

Dresen also pointed to evidence from a journal entry from 1936 when Goebbels seemingly sold the rights to Nazi state publishers. He believes this means the copyright is owned by the Bavarian government. "Bavaria is not interested," he told Newsweek, "'Show me the author's contract' they said, knowing the archives were destroyed at the War's end." Apart from the moral argument, and the claim that the Estate does not own the diaries, there is also the issue of defences of fair use and similar, not just in Germany, but elsewhere the book has been published.

Dresen said the court was not interested in the moral question “for one second”. The court also did not believe there was an arguable exception to copyright which could apply. He described the verdict as 'elegant but without morality'. Random House intends to appeal the case at the German Supreme Court. If successful, other media organizations and publishers who have accessed and used the diaries may seek refunds. Asked whether he thought the forthcoming legal case could affect the biography’s UK publication, Dresen said: “From a legal standpoint, it could, because the questions are the same.” 

In September 2014 the the District Court in Munich ruled that Random House must disclose revenues from the book to enable calculation of fees that would be due: the publishing group lodged an appeal to the Higher Regional Court of Munich.

http://europe.newsweek.com/goebbels-estate-wins-lawsuit-over-diaries-copyright-330113 and http://rt.com/news/272773-goebbels-diaries-royalties-court/

The CopyKat - oh the excitement, just four days to World Intellectual Property Day !

New Zealand internet service providers who allow users to bypass geoblocks to access overseas digital content have been threatened with legal action by four of the country’s major media broadcasters. State broadcaster Television New Zealand (TVNZ) and pay-television operators Sky, Lightbox and MediaWorks, have confirmed they are preparing legal action against Call Plus and Bypass Network Services on the basis of breach of copyright. Both ISPs offer a “global mode” to their users which gives them access to content that is unavailable in their country, such as subscriptions to a US account of streaming service Netflix.

Now a bit of self publicity. Readers may know that the CopyKat (in his real life identity) edits Music Law Updates.  Now, whilst MLU will continue as a monthly 'journal' style online publication (as it has for the last decade and more), we now have a blog for those of you eager to get your paws on the latest legal news from the music industry. And where will you find that blog I hear you ask - well its all here! http://www.musiclawupdates.blogspot.co.uk/. For those interested, Music Law Updates covers interesting copyright updates in music and sound recordings, but also extends into the heady heights of Trade Marks, Contracts, Negligence and Personal Injury, Health & Safety, Licensing, Criminal Law and even Competition Law and Taxation on the odd occasion! But all in the context of the music industry.

Aereo - the TV streaming service which the US Supreme Court effectively closed down when it ruled the 'mini antennae' system it used infringed the copyright of broadcasters, will pay around $950,000 to settle copyright allegations made by CBS, FOX, and ABC - who had originally been looking for nearly $100 million.  Now in bankrupcy, Aereo still faces $7.5 million in claims from creditors, but only has $811,000 left to pay those bills. More here and  re Aereo Inc., 14-bk-13200, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

Tucked away inside the 500-page Canadian budget unveiled in Ottawa was a single sentence that, whilst expected at some point as Canada comes t terms with the Trans Pacific Partnership agreement, has already promoted widespread comment. In a section about “celebrating our heritage,” the budget vows to update the Copyright Act “to protect sound recordings and performances for an additional 20 years,” raising the copyright term for musical works from 50 to 70 years "and potentially signalling further restrictions on works of art yet to be unveiled" according to critics who say that the extension is unwarranted and unjustified. Tamir Israel, staff lawyer at the Canadian Internet Policy & Public Interest Clinic at the University of Ottawa said “There is no proof at all the extended copyright term in any way increases incentives to create. On the other hand, Canadians are robbed of open access to works that should be entering the public domain.”

With its copyright soon expiring, the future of Adolf Hitler's Mein Kampf has been repeatedly in the news. Now Peter Longerich, professor of modern German history at Royal Holloway, University of London, who has published a new biography of Goebbels, is facing a claim from Goebbels' heirs because his book quotes from Goebbels' diaries. Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over Longerich's book Goebbels. With Germany's term of copyright for literary works being life of author plus 70 years, Hitler's minister of propaganda's work will also enter the public domain on the 1st January 2016. If this gets to court it may be an interesting case - not least looking at who actually owns any copyright in Goebbel's writings, but also at how far Professor Longerich is protected by exceptions to copyright in Germany, in the UK and possibly in the USA. Rainer Dresen, general counsel of Random House Germany, told the Guardian that an important principle was at stake. “We are convinced that no money should go to a war criminal,” he said.More on TechDirt here.

The Bookseller tells us that a global piracy ring has been found guilty in a US federal court of intentionally infringing copyright, sharing copies of books from up to 16,000 international publishers. The maximum damages allowed under US law - $37.5m – were awarded. The case of Elsevier Inc v Victor Kozlov and Pavel Kazutsin, which was brought to court as a joint action by the global publishing industry, concerned the defendants' websites Avaxhome and Avaxsearch, which illegally provided access to digital copies of millions of books, as well films, music, games and other copyrighted content.

And finally, Swedish prosecutors are preparing to argue their case in court as to why The Pirate Bay's flagship .se domains should be deactivated or put under government control, as copyright enforcers continue to try and make it harder for piracy platforms to operate.

World Intellectual Property Day. 26th April 2015.