Federal Judge Rejects Dismissal Motions in UMG v. Internet Archive ‘Great 78 Project’ Infringement Battle

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A 78 RPM vinyl record featuring a rendition of ‘Jingle Bells’ by Stanley Fritts and The Korn Kobblers, one of the many works available in digital via the Great 78 Project. Photo Credit: Mick Haupt

Universal Music’s copyright infringement lawsuit against the Internet Archive is proceeding after the presiding judge rejected multiple dismissal motions.

This latest development in the infringement dispute emerged in a new order from Judge Maxine Chesney. UMG Recordings (UMG), Sony Music Entertainment (SME), and others initially submitted the $400 million action in August of 2023.

As we reported at the time, the suit alleges largescale infringement in the Internet Archive’s “Great 78 Project.” As described by the non-profit, that initiative, through which north of 450,000 recordings have been made available for streaming and download, “is a community project for the preservation, research and discovery of 78rpm records.”

But as the filing parties (which are also suing Internet Archive founder and chief executive Brewster Kahle, his foundation, audio engineer George Blood, and the latter’s company) see things, the project constitutes “mass infringement” and the “wholesale theft of generations of music.”

The defendants moved to dismiss the suit in January of this year, with perhaps the most noteworthy of the involved arguments centering on allegedly time-barred elements of the complaint. That the RIAA had sent a cease-and-desist letter over the Great 78 Project back in July of 2020, the Internet Archive and others maintained, should render invalid “a substantial swath of alleged instances of direct infringement.”

(At the time of this writing, attempting to access via the Great 78 Project several of the allegedly infringed works brought up a “no longer available” message reading “Items may be taken down for various reasons, including by decision of the uploader or due to a violation of our Terms of Use.”)

According to the highlighted order, however, the court doesn’t agree with the assessment at this stage. The 2020 RIAA “letter on which defendants here rely does not identify any specific sound recording, let alone any of the” allegedly infringed works, Judge Chesney wrote.

With that said, the court didn’t entirely close the door on the potential use of the cease and desist at some point during the legal battle.

“Although, at a later stage of the proceedings, Internet Archive Defendants may be able to use the letter to show one or more of the alleged acts of infringement described in the AC [amended complaint] occurred outside the limitations period,” the judge penned, “such showing has not been made at the pleading stage.”

From there, the court rejected as well the call to toss the contributory infringement allegation against Kahle’s aforementioned foundation. (“The Foundation facilitates, encourages, and materially contributes to the direct infringement of Plaintiffs’ protected sound recordings by financially sponsoring and specifically funding the infringement,” Universal Music and the other plaintiffs claimed in the original filing.)

Regarding Kahle’s alleged control and funding of the Internet Archive through this foundation, the court determined in part that “the plaintiffs’ contributory infringement claim is not based solely on the Foundation’s donations but also on the control its President, Kahle, allegedly has over the activities of Internet Archive.”

Thus, the foundation may have materially contributed to the Archive’s alleged direct infringement, according to the legal text.

Last month, Twitter/X pushed back against the remaining allegations it’s facing in a National Music Publishers’ Association infringement suit, and ISP Cox Communications remains embroiled in a long-running courtroom confrontation with the majors.