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I purchased an ebook that I'm 100% sure is in the public domain (published in 70's, no copyright notice or copyright reg with us office).

However, the company I bought the ebook from has this in their terms and agreements that I had to agree to before checking out:

"all content included on this site, such as ... digital downloads ... is the property of [company]".

To clarify the website that I purchased the book from is the same company that originally published/ wrote the book.

So, my question: While this document is in the public domain, can I legally redistribute it, or due to the terms and agreements can I not?

  • 19
    What year was it published? That may matter because, as mentioned below, US copyright law was changed in 1978. Also, the author automatically gets copyright whether or not she registers the book or uses a copyright mark. Registration just gets the copyright holder some extra legal rights. – Just a guy Nov 21 at 5:20
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    What exactly was stated in the T&A? This is important in that there is quite a difference between asserting copyright rights vs. asserting ownership rights. From the abbreviated wording you have included, it sounds like the company is asserting that they have ownership rights to every digital download. That's significantly different, and has different answers, than that the company is asserting that they hold the copyright to the content which is being downloaded. – Makyen Nov 21 at 17:23
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    If the book was written in 1978 or 1979, then it is almost certainly not in the public domain unless the author has specifically released it as such. – reirab Nov 21 at 22:47
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    Copyright usually ends 70 years after the death of the author. If the book was not published posthumously by at least 30 years then the book is surely NOT in the public domain. You seem to have gotten all of it wrong. If an author wants to make their work in the public domain before 70 years from their death they must add an explicit note about that. No note = copyrighted. – Giacomo Alzetta Nov 22 at 10:06
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    Please edit your question using the edit button below the tags and add an explanation of why you think that a book written in the 1970's would no longer be copyrighted. Perhaps then we can understand your logic. It would also help if you'd tell us what book it is that you're talking about, and who the ebook publisher is. Thanks. – Bob Jarvis - Reinstate Monica Nov 22 at 19:20
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The text may be public domain in the United States

It depends on when it was created/published.

The eBook is subject to its own copyright

The eBook itself is a derivative work and subject to its own copyright protection. The translation of an ink and paper book into an eBook contains enough artistic choice to trigger copyright protection.

If the original is really public domain, you can copy the text but not the eBook.

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    This reminds me of the case of digitized videos of vintage newsreels someone asked about a year or two ago; just because the underlying material is public domain doesn't mean that the company holding the digital version is obligated to provide you with a free copy in the redistributable format of your choice. – jeffronicus Nov 21 at 16:50
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    If the translation to eBook format is entirely automated, would that still allow it to have its own copyright protection? There's no "artistic choice" in a mechanical transformation. – Barmar Nov 21 at 17:25
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    There is; someone programmed a computer to perform that transformation in that manner. – Lightness Races with Monica Nov 21 at 17:52
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    Apparently the question of whether copyright of software extends to that software's output is blurry and fairly unresolved, see Design Data Corp. v. Unigate Enterprise, Inc. for an example of it not being the case. – DPenner1 Nov 21 at 21:03
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    I think the statement that compiling the eBook is "enough artistic choice" requires a reference. – Mindwin Nov 22 at 12:39
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Part of something being in the Public Domain is that anyone can take that work, make a minor change, and copyright the result for themselves. Not the original of course, but their custom version. Public Domain status isn't "infectious" to derived works like the GPL (copyleft) is. This is how the mashup genre of fiction regularly operates.

In this case, most likely the publisher is asserting copyright to their digital conversion of the PD source material. I have also heard of tweaks being something as simple as adding pictures to the text.

Legally you can probably get around the issue by copying only the unmodified portions of the text, but its possible they stuck some land-mines in there (eg: modernized spellings here or there), specifically to catch people doing that. Safer just to find yourself a true PD copy (like on Project Gutenberg) and work from that.

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I do not think you should be 100% sure it is in the public domain. As of sometime in 1978 copyrightable material is automaticity copyright as of is original fixation - no copyright notice required.

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    January 1, 1978. If the work was created after that date, it has an automatic copyright term of the lifetime of the author + 70 years. – reirab Nov 21 at 22:44
  • Is there any requirement that a work which is primarily based on public-domain identify any portions or aspects upon which copyright is claimed? If I buy a book of Shakespeare sonnets, but the publisher has replaced #57 with some original text of his own creation (without indicating that it wasn't written by Shakespeare), would the publisher be entitled to sue for copyright infringement anyone who reproduces "Sonnet #57" from that book? If so, that would seem a major defect in the notice requirement. – supercat Nov 22 at 16:15
  • What notice requirement? – George White Nov 22 at 16:35
  • I guess you're asking about the likelihood of winning such a lawsuit and being awarded damages, @supercat. The details matter, but generally speaking, although the chance of the publisher winning the suit is reasonably good, the chance of them being awarded damages is small. – John Bollinger Nov 23 at 13:50
  • @GeorgeWhite: Sorry--I meant the a defect in the rule eliminating the notice requirement. – supercat Nov 23 at 19:09
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The work is not protected by copyright, however, you agreed not to copy or distribute the copy you obtained from this service. That is enforceable, see ProcCD v. Zeidenberg.

Note that only you are bound by the terms because only you agreed to them. Were someone who hadn't agreed to the terms somehow get access to your copy and make and distributed copies of it, they would not be violating any law or agreement (at least, not that I can think of).

  • ProcCD does not apply to this situation. ProcCD, followed another phone book case, Feist. In Feist, the SCt rejected the "sweat of the brow" standard for copyright for the "minimum of originality" standard. This standard is based on the constitutional justification for copyright: "to promote the progress of science and useful arts..." Turning a text into an ebook has been held to be original enough to warrant copyright; compiling lists of phone numbers has not. – Just a guy Nov 22 at 18:17
  • @Justaguy That part of the holding doesn't apply. But the rest of it does -- that even though there's no copyright protection available, the agreement not to distribute the work is enforceable on someone who agreed to it. – David Schwartz Nov 22 at 18:32
  • Ooops! I should have said the "no copyright" part of ProcCD does not apply, but the part about agreeing not to distribute does. Is that what you are saying? – Just a guy Nov 22 at 18:50
  • I think my first paragraph is very clear -- you have a work that is not protected by copyright, however you have agreed not to copy or distribute the copy you obtained, and that's enforceable. This is precisely what was held in ProCD v. Zeidenberg, a case also dealing with a work not protected by copyright. – David Schwartz Nov 23 at 21:51
  • Don't forget the possibility of a common design. – lellis Nov 24 at 20:52

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