Internet Archive Sued By Major Record Labels for 400 Million Dollars
Written by Ayana Contreras on August 16, 2023
The suit classifies The Great 78 Project, an initiative to make recordings of 78rpm records free and accessible to students and researchers online, as an “effort to willfully defy copyright law on an astonishing scale.” But the case and its implications are not so cut and dry.
On August 11, Universal Music, Sony Music and Concord Music Group filed suit against the Internet Archive for 400 million dollars over the Archive’s Great 78 Project, which is, according to their website, “a community effort for the preservation, research and discovery of shellac 78 rpm records that are 70 to 120 years old”. By the Archive’s estimation the initiative has both housed the source physical copies of and digitized 300,000 78rpm records. When the Project was created in 2006, The Classics Protection and Access Act of 2018 was not yet in place. But that Act is at the center of this case.
As part of the Music Modernization Act, The Classics Protection and Access Act “among other things, extends remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972 (“Pre-1972 Sound Recordings”) when the recordings are used without authorization. However, that Act makes provisions for “fair use”, “libraries and archives”, “certain public performances”, and “certain ephemeral copies” among other exceptions. The suit does not identify Internet Archive as a library, rather an “illegal record store” that is an “effort to willfully defy copyright law on an astonishing scale.”
The Internet Archive counters that they are a “non-profit library” and are making their collection freely accessible for students and researchers online. Brewster Kahle, founder and a digital librarian of the Internet Archive, further stated in a statement on the Internet Archive’s website: “When people want to listen to music they go to Spotify. When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.” The Great 78 Project home page further clarifies that their aim is to center “underrepresented artists and genres,” noting that “the digitization will make this less commonly available music accessible to researchers in a format where it can be manipulated and studied without harming the physical artifacts.”
For context, 78rpm records became the standard recorded music format in the 1920s, but by the mid 1960s, 78rpm records had become an obsolete format in the United States, and many phonographic record players manufactured after the 1960s don’t even include the option to play records at that speed, let alone the special non-diamond needles that 78rpm players employed.
Interestingly enough, when news from the lawsuit was posted on Billboard’s website, the site classified the project as an initiative “to digitize old vinyl records from Frank Sinatra, Ella Fitzgerald, Bing Crosby and other iconic artists,” language that paints a somewhat inaccurate portrayal of what material makes up the collection. Out of the hundreds of thousands of songs digitized in the collection, the music groups/labels are suing over 2,749 songs in the collection, including Bing Crosby’s “White Christmas”, that are otherwise available to stream on platforms such as Spotify.
In a different corner of the internet, YouTube is also arguably knit together with the fringes of copyright legality: a fair percentage of its content is posted by copyright holders, but so much of it is not: a bounty of technically pirated content, some orphaned works and other derivative content that uses copyrighted material within it (such as film reviews… like and subscribe!).
Unlike the Internet Archive, YouTube isn’t a truly altruistic platform attempting to make this work available for the greater good per se, but a fair share of its value proposition is based around the sheer number of media works that are not otherwise accessible on the internet. Conversely, the Internet Archive identifies itself as being deeply invested in making so-called orphan works specifically free and accessible online. According to Stanford University’s Center for Internet and Society, “Orphan works are books, films, music, and other creative works which are out of print and no longer commercially available, but which are still regulated by copyright, a class of work created as a result of The Copyright Renewal Act of 1992.
In 2007, Kahle and Prelinger Archives founder Rick Prelinger sued the government over The Copyright Renewal Act, which removed the renewal requirement for creators after their terms expired to retain the exclusive right to reproduce their work. The Center for Internet and Society concludes that the “Because the copyright system contains no mechanisms to create and maintain useful records of copyright ownership, people who would like to distribute or use these orphaned works — digital libraries, or creators who would like to include the work in their own creative expression — often are unable to clear rights. The copyright system thus denies public access to these orphan works, without creating any countervailing benefit either to authors or the public at large.” Kahle and Prelinger lost the case. Which leads us here.
Most red-blooded Americans work under the assumption that every bit of 20th century media, or at the very least every bit worth consuming, has made the digital leap and is streaming or otherwise posted somewhere on the internet. The holes in that assumption come to light, however, while on the hunt for a favorite TV show from the 1990s that is inexplicably not streaming, or a magazine with barely a digital trace.
The outcome of the case remains to be seen, but 400 million dollars is a punitive sum for a non-profit organization, enough to likely force it to shut it down. This of course, will be of no consequence to access to iconic recordings such as the aforementioned “White Christmas”, but the fate of access to these so-called orphan recordings is far less clear. If successful, the case will most certainly be used as precedence to go after other archives and websites arguing fair use, perhaps even including the behemoth of them all, YouTube.
You can access the full complaint filed against the Internet Archive here: