Founded in 1996, the Internet Archive has built an unparalleled library of digital artifacts in less than three decades.

Many people are familiar with the website archiving project “Wayback Machine” but the non-profit also has many other preservation projects underway.

These meticulous archiving skills are a vital part of the digital history books, which are being ‘written’ as we speak. However, good intentions themselves are not immune to copyright complaints, or worse, multi-million dollar lawsuits.

The Great 78 Project

Six years ago, the Archive teamed up with other libraries and experts to archive the sounds of 78-rpm gramophone records, which are obsolete today. In addition to capturing their unique audio, including all crackles and hisses, this saves unique recordings for future generations before the vinyl or shellac disintegrates.

The ‘Great 78 Project‘ received praise from curators, historians, and music fans. However, not all music industry insiders were happy with it, as the copying took place without obtaining permission from all rightsholders.

The Great 78 Project

Last summer, a group of major music labels including Capitol, Sony, and UMG, decided to take action. In a complaint filed at a U.S. federal court, they sued the Internet Archive, its founder Brewster Kale, and others they believe are responsible.

“When Defendants exploit Plaintiffs’ sound recordings without authorization, neither Plaintiffs nor their artists see a dime. Not only does this harm Plaintiffs and the artists or their heirs by depriving them of compensation, but it undermines the value of music,” the labels wrote.

With 2,749 recordings at stake, the potential statutory damages could run to more than $400 million. However, the Internet Archive (IA) sees things differently, believing that the ‘Great 78 Project’ is fair use.

IA Files Motion to Dismiss

Filed a few days ago, IA’s motion to dismiss stresses that it’s important to archive these older records, some of which date back to the late 19th century. The records have been obsolete since the 1950s but that doesn’t mean that their sounds should be lost forever, IA argues.

“The specific quality of the sound, including the peculiar and distinct crackles and other imperfections that are a hallmark of this antiquated medium formed an indelible part of American culture for many decades,” the motion notes.

“But the physical recordings themselves tend to disintegrate over time—and as the complete set of these old records gradually becomes unplayable, their unique contributions to our history is on a precipitous path to oblivion.”

IA’s motion

The lawsuit will ultimately have to decide whether the ‘The Great 78 Project’ is allowed to exist under U.S. copyright law. The motion to dismiss also deals with another time-sensitive issue.

Specifically, IA argues that many of the works should be removed from the lawsuit, as the labels failed to take timely action following a cease and desist letter the RIAA sent in 2020. This letter pointed out concrete copyright concerns, but the labels allegedly took too long before filing their lawsuit.

RIAA’s Cease and Desist

The U.S. Copyright Act has a three-year statute of limitations. This means that, after discovering concrete copyright infringements, a lawsuit has to be filed within this window. That didn’t happen here, according to IA.

The RIAA letter didn’t list any specific recordings but referenced artists including Elvis Presley, Duke Ellington, and Billie Holiday. It further characterized IA as a platform that enables piracy on a massive scale, mentioning “thousands” of recordings.

“Although the Internet Archive is rife with infringing copies of sound recordings, perhaps the most prominent example of this infringement is the ‘Great 78 Project’,” RIAA wrote in its letter.

“Your unauthorized reproduction, distribution and public performance of these recordings is a plain violation of the RIAA member companies’ rights under the Classics Protection and Access Act (‘Classics Act’), 17 U.S.C. § 1401, and constitutes nothing less than piracy on a massive scale.”

RIAA letter

IA Replied

IA’s motion to dismiss recognizes that the RIAA sent this letter. At the same time, it adds more context, pointing out that founder Brewster Kahle replied to the letter. Among other things, Kahle noted that rightsholders can send takedown notices or request the exclusion of certain artists and recordings.

According to the motion to dismiss, RIAA never responded to this reply, and the project continued in the years that followed.

“Internet Archive founder Brewster Kahle promptly responded that the project would gladly exclude any digitization of the labels’ recordings that they identified to Internet Archive. The record labels never responded to that letter,” the motion reads.

A follow-up eventually came when the RIAA member labels filed a lawsuit, more than three years later. The timing is important, as IA argues that the lawsuit falls outside the three-year statute of limitations.

Statute of Limitations

According to U.S. copyright law, the three-year period begins when a rightsholder ‘discovers’ the infringement. IA now argues that the labels were aware of alleged “Great 78 Project” infringements when the RIAA sent its letter.

“[T]he letter acknowledges plaintiffs’ belief, as of July 22, 2020, that ‘thousands’ of recordings had already been digitized and uploaded to the Great 78 Project, including those by specific named artists,” IA writes.

“And even if Plaintiffs did not have actual knowledge of those alleged acts of infringement, the RIAA letter at a minimum demonstrates that a reasonable plaintiff ‘should have discovered’ the alleged infringement and that a cause of action for infringement had accrued as of that date.”

The IA argues that since many claims fall outside the three-year period, they should be dismissed. While some claims may remain, this will help to significantly narrow the scope of the case, as well as the potential damages.

At the time of writing, the labels have yet to respond to IA’s argument. They may see things differently but, on the surface, the timing seems unfortunate. Had they filed their case a few weeks earlier, this issue wouldn’t have come up.

Finally, the Kahle-Austin Foundation filed a separate motion to dismiss. The foundation argues that there are no grounds to include it in the lawsuit, as it only helps to fund the Internet Archive.

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The motion to dismiss filed by the Internet Archive and related defendants is available here (pdf). The motion from the Kahle-Austin Foundation can be found here (pdf)

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• Source: https://torrentfreak.com/music-labels-gramophone-copyright-lawsuit-comes-too-late-internet-archive-says-240129/