A 78rpm vinyl record featuring a rendition of ‘Jingle Bells’ by Stanley Fritts and The Korn Kobblers, one of the many works converted to digital via the Great 78 Project. Photo Credit: Mick Haupt
Universal Music, Sony Music, and others are officially suing the Internet Archive for allegedly infringing upon a substantial number of works via its “Great 78 Project.”
The mentioned major labels (as well as Universal’s Capitol Records and Sony’s Arista Music), Concord Bicycle Assets, and CMGI Recorded Music Assets only recently submitted the more than 50-page copyright infringement action to a New York federal court.
Besides the non-profit Internet Archive, the rightsholder plaintiffs named as defendants Internet Archive founder and chief executive Brewster Kahle, the Kahle/Austin Foundation (allegedly Kahle’s “preferred vehicle for funding his favored projects”), and audio engineer George Blood as well as his namesake company.
Per the lengthy-but-straightforward suit, the Internet Archive’s above-noted Great 78 Project – which, as its name suggests, is an effort to digitize 78rpm records – has made available on its website “hundreds of thousands” of works.
With a self-described goal of facilitating “the preservation, research and discovery” of 20th century records, the years-old Project according to its Twitter/X profile rolls out a “newly digitized 78rpm disc every hour.”
Regarding the library’s reach, the plaintiffs relayed that New York State residents had streamed or downloaded the Project’s recordings a cumulative total of about 500,000 times since 2020’s beginning – meaning that the Empire State had “the second-most total downloads and streams in that time.”
Among the over 400,000 recordings available through the Great 78 Project website are thousands of songs, performed by the likes of Frank Sinatra, Gene Autry, Bing Crosby, Glenn Miller, Buddy Holly, Chuck Berry, Louis Armstrong, Miles Davis, Thelonious Monk, and Ella Fitzgerald, that the plaintiffs maintain are being infringed upon, however.
“Defendants attempt to defend their wholesale theft of generations of music under the guise of ‘preservation and research,’” wrote Universal Music and Sony Music, “but this is a smokescreen: their activities far exceed those limited purposes. Internet Archive unabashedly seeks to provide free and unlimited access to music for everyone, regardless of copyright.”
Meanwhile, the plaintiffs, not hesitating to describe the defendants as “mass infringers” and their Project as an “illegal effort to willfully defy copyright law on an astonishing scale,” indicated that more than a few of the involved recordings had already arrived on streaming services and didn’t require preservation on the website in question.
Additionally, Universal Music and Sony Music expressed the belief that the Internet Archive and the other defendants “cannot avoid liability for their willful infringement by claiming fair use,” because not “a single one of the four factors enumerated in the Copyright Act favors” their position.
Expanding upon the point, the plaintiffs emphasized their stance that for multiple reasons, the Music Modernization Act’s potential protection of the non-commercial use of pre-1972 recordings in certain instances doesn’t extend to the Great 78 Project.
“Internet Archive has not filed any notices of non-commercial use with the Copyright Office,” the plaintiffs wrote. “Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities. Internet Archive knew full well that the [MMA] had made its activities illegal under Federal law.”
After supporting the idea with public statements allegedly made by one or more of the defendants, the plaintiffs reiterated that the RIAA had in July of 2020 called out the alleged infringement in a letter to the Internet Archive and its founder, who responded the following month. Needless to say, given the newly introduced litigation, the correspondence failed to bring about a resolution or even the removal of a portion of the allegedly infringing music.
“Undermining its claim that it works with rightsowners to remove from public access recordings that are currently being commercially exploited,” penned the plaintiffs, “Internet Archive did not remove from public access any recordings by any of the artists cited in the RIAA’s letter.”
The Internet Archive, George Blood, and Blood’s business are being sued for (among other things) infringing reproduction, whereas the Archive itself is facing claims for contributory infringement, vicarious infringement, infringing public performance by means of a digital audio transmission, and inducement of infringement.
Brewster Kahle addressed the suit with brief remarks on Twitter/X, writing: “Now the Washington lawyers want to destroy digital collections of scratchy 78rpm records, 70-120 year old, built by dedicated preservationists online since 2006. Who benefits?”