Here we go again.
On December 9, tech activist group Fight for the Future announced that 300 musicians had signed an open letter denouncing the companies' lawsuit against the Internet Archive for copying and offering free streams of old recordings as part of its “Great 78” project. The letter essentially says labels should focus less on profit and more on supporting creators by raising streaming service royalty rates — and partnering with “valuable cultural stewards” like the Internet Archive.
This is completely and utterly backwards. The labels should focus on making money—they're companies, but they're always trying to increase streaming royalties in a way that would help them, as well as the artists. It would help if streaming services raised prices, which they would have an easier time of if less unlicensed music was available for free both on profit-making pirate sites and services like the Internet Archive. And one of the worst possible groups to offer advice on such matters is Fight for the Future, which steadfastly opposes the kind of copyright protection that allows creators to control the availability of their work.
Most people think of the Internet Archive, if at all, as the nonprofit organization that runs the Wayback Machine, which maintains a searchable archive of past and present Internet sites. But it also preserves and makes available other media — sometimes in ways that push the boundaries of copyright. After the label's lawsuit against the Internet Archive was moved to alternative dispute resolution in late July, an appeals court upheld the book publishers' victory in their lawsuit against the organization for making electronic copies of books available without a license in what it calls “controlled digital lending.” On December 4th, the deadline passed for the Internet Archive to file a petition for certiorari with the Supreme Court, making this decision final.
It sometimes seems that part of the purpose of the Internet Archive, which was founded in 1996 by a technology activist Brewster Kaleis overstepping the bounds of copyright. In 2006, Kahle sued the government for changing the copyright system from opt-in to opt-out. (His side lost in the Ninth Circuit Court of Appeals.) Later, the Internet Archive began purchasing and scanning books and distributing digital archives of the content on an ad hoc basis, depending on how many copies of the volume the organization owned. (Digital copies became useless after a certain period of time.) During the pandemic, it started a “National Emergency Library” and announced that it would start lending out more digital copies than the number of physical copies of books it had. Two months later, three major publishers and one other sued, claiming that this controlled digital lending—a theoretical model not recognized in US law—infringed copyright.
The Internet Archive argued that it was a library and that its digital lending qualified as “transformative use,” an aspect of the fair use exception to copyright law that in some cases allows copyrighted works to be used for a different purpose . (Thumbnails that appear in search engine results qualify as transformative use, for example, as they are used to help users find the images themselves.) The copyright exceptions for libraries and archives are very specific, however, and it's hard to imagine how loaned digital copies of books are so different from the digital books that have become an increasingly important part of the publishing business. The Second Circuit Court of Appeals treated the dispute as a simple fair use case—it just cited the National Emergency Library—and ruled for the publishers.
“Fair use is an important part of the law and no one would argue,” he says Maria Pallandepresident and CEO of the Association of American Publishers, the trade group that handled the lawsuit. “But this was a gross distortion of fair use – they wanted to normalize that it's okay to reproduce millions of works.”
The label's lawsuit — Sony Music, Universal Music Group and Concord sued under the auspices of the RIAA — could end up being just as simple. (Kahle is also named personally in the lawsuit, along with other entities.) The Great 78 Project makes 400,000 recordings digitized from 78 rpm discs available for streaming online. The idea is “to make this less commonly available music accessible to researchers,” according to the project's website.
The reality, according to the labels' lawsuit, is that among the available recordings are Bing Crosby's “White Christmas,” Chuck Berry's “Roll Over Beethoven” and “It Don't Mean a Thing (If It Ain' t Got That Swing” by Duke Ellington ),” all of which have significant commercial lives on streaming services. “The Internet Archive's 'Great 78' project is a smokescreen for industrial-scale copyright infringement of some of the most iconic recordings ever made,” said RIAA Chief Legal Officer Ken Doroshow he said in a statement. The Internet Archive did not respond to a request for comment.
The Internet Archive appears to be pulling both of these cases into the magazines, arguing that the $621 million RIAA lawsuit threatens “the collective memory of the Web” (Wired) and the “soul of the Internet” (Rolling Stone). Perhaps. But neither book publishers nor labels oppose the Internet Archive's real archive of the real Internet. In both pieces, Kahle positions herself as a librarian and preservationist, never mind that “White Christmas” needs no preservation and that the Music Modernization Act has a provision that allows libraries to offer certain unavailable pre-1972 recordings if follow procedure. (The labels' complaint says the organization didn't do that; Kahle said Rolling Stone that “we talked to people, it wasn't a problem.”) The fact that some of the recordings are scratchy, something Kahle and his allies make a big deal about, is legally beside the point.
It's reasonable to hope that the tags don't put the Internet Archive out of business, because the Wayback Machine is so valuable. But it's also reasonable to wonder why Kahle let the Internet Archive take such big legal risks in the first place. If the Wayback Machine is so important, why distribute books and music in a way that could be found to infringe copyright, with the huge legal damages that come with it? Unless, of course, that's actually part of the organization's job in the first place.
Some of these issues can become quite abstract, but how they are settled could have serious consequences in the years to come. If someone wanted to put together a collection of scanned books to train an AI, they could do it exactly the way Kahle did. The same goes for old recordings. Indeed, AI companies already argue that mass copying of media does not infringe copyright because it qualifies as “transformative” and therefore fair use. There is no evidence that the Internet Archive copied books and recordings for this reason, but it is certainly possible that the organization would like to set precedents to make it easier for AI companies to argue that they are using copyrighted works for educational purposes by compensating them. rights holders.
The letter from Fight for the Future points out that “the music industry cannot survive without musicians”. But there's a chance that the kind of large-scale copying of music that convinces musicians to defend represents a first step toward the tech business doing just that.
