The Internet Archive is known for its mission to collect and digitize as much human knowledge as possible, but that mission is putting it at odds with rightsholders.
The latest chapter in that conflict was launched in a US federal court on Friday (August 11), when a number of prominent music companies, including Sony Music Entertainment and Universal Music Group, filed a lawsuit against the online library’s “Great 78 Project.”
The project aims to collect and digitize 78-rpm records issued from the 1890s to the 1950s. These “78s” were the standard format for vinyl records until the 1950s, and according to George Blood, an audio engineer involved in the project, there are some 3 million of these recordings that could eventually make their way into the collection.
For music recording companies and publishers, that’s a problem, because a great deal of that music remains under copyright and continues to be commercially exploited.
In a complaint filed with the US District Court for the Southern District of New York on Friday (August 11), lawyers for UMG Recordings, Universal’s Capitol Records, Sony Music Entertainment and its subsidiary Arista Music, as well as indie music company Concord call the Great 78 Project a “massive ongoing violation” of the recording companies’ copyrights.
The people involved in the project “have willfully reproduced thousands of plaintiffs’ protected sound recordings without authorization by copying physical records into digital files,” the complaint stated.
Among the recordings named in the lawsuit are Bing Crosby’s White Christmas, Buddy Holly’s Peggy Sue, Chuck Berry’s Roll Over Beethoven, Frank Sinatra’s I’ve Got the World on a String, Nat King Cole’s The Christmas Song and Duke Ellington’s It Don’t Mean A Thing (If It Ain’t Got That Swing).
The full complaint can be read here.
The lawsuit lists 2,749 copyrighted tracks, which it describes as an “illustrative and non-exhaustive list of some of plaintiffs’ works infringed by defendants through the Great 78 Project.”
“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,” the complaint states. “Internet Archive unabashedly seeks to provide free and unlimited access to music for everyone, regardless of copyright.”
The lawsuit lists as defendants the Internet Archive; the organization’s founder, CEO and Board Chair Brewster Kahle; George Blood; and the Kahle/Austin Foundation, of which Kahle is the President and which the complaint says has been instrumental in making the Great 78 Project a reality. It notes that the Kahle/Austin Foundation is listed as the “digitizing sponsor” for every track that has been added to the project’s website.
“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,” the complaint states.
The complaint suggests that the Internet Archive’s goals with the Great 78 Project go well beyond the activities of a library, and into potentially commercial activities. It notes that every track uploaded to the project has its own dedicated page, with an embedded music player that allows visitors to play the song.
The Internet Archive uses those tracks “to attract new visitors from whom it can solicit donations,” the complaint states, adding that the organization heavily promotes the music available through the project on its X (formerly Twitter) account “that tweets a link to a different recording every hour.”
All of the pre-1972 sound recordings… are already available for streaming or downloading from numerous services authorized by plaintiffs. These recordings face no danger of being lost, forgotten, or destroyed.”
complaint filed against internet archive in federal court
The complaint adds: “Nor can defendants justify their activities as necessary to preserve historical recordings. All of the pre-1972 sound recordings… are already available for streaming or downloading from numerous services authorized by plaintiffs. These recordings face no danger of being lost, forgotten, or destroyed.”
The Great 78 Project “is a massive, unauthorized, digital record store of recordings,” the complaint states.
“To lure customers into this illegal record store, Internet Archive regularly posts advertisements on social media with links to newly added recordings,” it says.
The complaint estimates that “hundreds of thousands” of tracks have been digitized from 78-rpm vinyls and posted to the site, “where anyone in the world can download or stream them for free.” It estimates that the tracks have been listened to “millions” of times.
“Libraries are under attack at unprecedented scale today, from book bans to defunding to overzealous lawsuits like the one brought against our library.”
Brewster Kahle, Internet Archive
The complaint suggests that Kahle and the Internet Archive were aware that their activities infringe on copyright, given their comments and blog writings about the 2018 Music Modernization Act, which expanded federal copyright protections to music recorded before 1972.
It argues that the defendants failed to properly carry out a “reasonable search… to determine that these items are not commercially available.” (Such a search can potentially limit a defendant’s liability under the 2018 law.)
The complaint asks the court for an injunction to stop the Internet Archive from carrying on its project. It seeks statutory damages for each infringing track, which under US federal law can be up to $150,000 per infringement, or otherwise “defendants’ profits from infringement, in an amount to be proven at trial.” It also seeks reimbursement of court costs and lawyers’ fees.
The lawsuit comes just months after the San Francisco-headquartered Internet Archive lost a similar suit brought in federal court by book publishers who argued its digital book-lending program violated their copyrights.
The lawsuit was brought by Hachette Book Group as the lead plaintiff, along with Penguin Random House, HaperCollins and Wiley. In March of this year, a judge ruled that the Internet Archive violated the publishers’ copyright with its National Emergency Library, which the Internet Archive established in 2020, during the Covid-19 pandemic.
The Internet Archive has launched an appeal of that ruling.
“Libraries are under attack at unprecedented scale today, from book bans to defunding to overzealous lawsuits like the one brought against our library,” Kahle wrote in a blog post on the Internet Archive’s website Friday (August 11). “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.”
The Internet Archive has not yet publicly commented on the music companies’ lawsuit.Music Business Worldwide
