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Record companies sue Internet Archive over its golden oldies archiving Great 78 Project

By Chris Cooke | Published on Monday 14 August 2023

Universal Music, Sony Music and Concord last week sued the Internet Archive over its Great 78 Project. Officially described as “a community project for the preservation, research and discovery of 78rpm records”, that venture – according to the record companies – is simply “wholesale theft of generations of music”, with the Internet Archive liable for copyright infringement that is both “blatant” and “immense”.

The wider Internet Archive says it is a “digital library of internet sites and other cultural artifacts in digital form”. It is perhaps best known for its Wayback Machine which stores more than 25 years of web-pages. The Great 78 Project, meanwhile, has digitised and now makes available over 400,000 recordings that were originally released on the 78rpm format from the start of the Twentieth Century through to the 1950s.

In their lawsuit, the record companies state: “Defendants attempt to defend their wholesale theft of generations of music under the guise of ‘preservation and research’, 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”.

Some of the older recordings stored by the Internet Archive will actually be public domain, but plenty are still protected by copyright. And, the labels say, all of the specific copyright protected recordings identified in the legal action “are already available for streaming or downloading from numerous services authorised by plaintiffs”.

Therefore, they argue, the Great 78 Project can’t be justified as a scheme to “preserve historical recordings”, because “these recordings face no danger of being lost, forgotten, or destroyed”.

Interestingly, because the recordings at issue here were all released prior to 1972, before 2018’s Music Modernization Act the record companies would have had to pursue legal action at a state level, because US-wide federal copyright law only applied to pre-1972 releases.

However, the lawsuit goes on, the MMA “extending federal protection to sound recordings created before February 15, 1972”, meaning that “anyone who violates any of the exclusive rights” provided for recordings by federal copyright law in relation to the older tracks “is subject to an action for infringement”.

The MMA did actually provide some get-outs for the non-commercial use of pre-1972 recordings. That includes if a recording is not otherwise available, or if a notice of non-commercial activity is logged with the US Copyright Office and is not objected to by a copyright owner. However, the labels claim in their lawsuit, none of these get outs apply in the case of the Great 78 Project.

Presumably expecting the Internet Archive to instead rely on the always trusty fair use defence under American copyright law, the lawsuit also insists that none of the criteria for fair use is met by the Internet Archive’s musical initiative.

Meanwhile, noting another recent dispute the Internet Archive had with the book industry, it goes on: “This is not the first time Internet Archive has improperly sought to wrap its infringing conduct in the ill-fitting mantle of fair use. A court in this district recently rejected Internet Archive’s attempt to claim fair-use protection for its systematic copying and distribution of copyrighted books”.

So, with the MMA get outs and fair use clearly not applying here – or at least as far as the music companies are concerned – the courts should hold the Internet Archive and its founder Brewster Kahle liable for copyright infringement. And, of course, the music companies would then like lots of lovely damages.

It remains to be seen how the Internet Archive responds, but it will likely push back, no doubt arguing that there is actually some support in the wider music community for its work archiving releases from the early days of the record industry.

But the labels will no doubt reaffirm their position that, with so much music – including golden oldies – now readily available through numerous licensed digital platforms, archiving of that kind simply isn’t necessary. We shall see.