14 August 2023CopyrightSarah Speight

Sony, Universal et al sue Internet Archive for $412m

Case concerns ‘massive’ infringement of pre-1972 songs by the likes of Frank Sinatra, Louis Armstrong and Peggy Lee | Six record labels allege that Internet Archive is ‘wilfully disobeying’ copyright law by making old 78 rpm records available online for free.

A group of six record labels including Sony Music Entertainment and Universal Music Group have sued non-profit Internet Archive for alleged copyright infringement of “hundreds of thousands” of sound recordings.

The case concerns the “massive ongoing violation of plaintiffs’ rights in protected pre-1972 sound recordings” on Internet Archive’s ‘ Great 78 Project’, which now contains more than 400,000 recordings that are free to download or stream.

Some 2,749 works by artists including Frank Sinatra, Thelonious Monk, Ella Fitzgerald, Billie Holiday, Miles Davis, and Louis Armstrong are listed in the complaint, filed on Friday, August 11 in New York.

Sound recordings included in the suit are White Christmas by Bing Crosby, Peggy Sue by Buddy Holly, I’ve Got the World on a String by Frank Sinatra, and It Don't Mean a Thing (If It Ain't Got That Swing) by Duke Ellington.

The record labels are demanding $150,000 for each allegedly infringed song, which could equate to more than $412 million.

78 rpm records

Internet Archive’s ‘Great 78 Project’ refers to 78 rpm records, which are phonographic records designed to be played at a speed of 78 revolutions per minute and was the industry-standard record format from the early 1900s until the 1950s.

Internet Archive “unabashedly seeks to provide free and unlimited access to music for everyone, regardless of copyright,” says the complaint, which points out that the goal of the Great 78 Project is “the preservation, research and discovery of 78 rpm records”.

This, say plaintiffs, is an “attempt to defend [Internet Archive’s] wholesale theft of generations of music under the guise of ‘preservation and research’, but this is a smokescreen…

“In truth, defendants’ malfeasance springs from their disregard for copyright law and the rights of artists and content owners.”

The Archive uses its  social media account X (formerly Twitter) to tweet a link to a different recording every hour.

Music Modernization Act

The complaint notes that in 2018, Congress enacted the Music Modernization Act (MMA), extending copyright law to cover sound recordings created before February 15, 1972.

Internet Archive wrote about the new legislation on its blog, stating that: “The MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.”

It further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings”.

But the defendants—which include Internet Archive’s founder Brewster Kahle; the Kahle/Austin Foundation; George Blood, a professional audio engineer with experience in preserving and digitising physical vinyl records; and Blood’s company GBLP—are “wilfully disobeying” copyright law, argue the record labels.

“Plaintiffs bring this lawsuit to vindicate the rights Congress has granted creators in pre-1972 sound recordings,” the record labels argued.

But the recordings are all available on authorised streaming platforms such as Spotify and Amazon Music, and “face no danger of being lost, forgotten, or destroyed,” they added.

A National Emergency Library

Internet Archive, which had opposed the MMA, also opposed the Copyright Term Extension Act (CTEA), which set the current copyright term at life of the author plus 70 years.

“This is not the first time Internet Archive has improperly sought to wrap its infringing conduct in the ill-fitting mantle of fair use,” said the complaint, adding that “Internet Archive and the other defendants have a long history of opposing, fighting, and ignoring copyright law, proclaiming that their zealotry serves the public good.

“In reality, defendants are nothing more than mass infringers.”

In March this year, Internet Archive lost a copyright case brought by book publishers Hachette, HarperCollins, John Wiley & Sons and Penguin Random House regarding its controlled digital lending (CDL) of eBooks, an e-library which was launched in March 2020 as a “National Emergency Library” in response to libraries being closed due to the COVID pandemic.

Internet Archive, which intends to appeal the decision, published a blog written by Kahle entitled Our fight is far from over, in which he argued: “Libraries are under attack at unprecedented scale today, from book bans to defunding to overzealous lawsuits like the one brought against our library.

“These efforts are cutting off the public’s access to truth at a key time in our democracy. We must have strong libraries, which is why we are appealing this decision.”

Internet Archive, founded by Kahle in 1996, is funded by supporters, having received more than $100 million in the past 10 years, according to the complaint brought by the record labels.

The complaint was filed at the US District Court for the District of Southern New York.

Attorneys for the plaintiffs are Oppenheim + Zebrak (O+H) led by Matthew Oppenheim. Attorneys for the defendants have not yet been named.

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