Thursday, August 17, 2023

Recording Industry v. Internet Archive

Chris Freeland (PDF, Hacker News):

Late Friday, some of the world’s largest record labels, including Sony and Universal Music Group, filed a lawsuit against the Internet Archive and others for the Great 78 Project, a community effort for the preservation, research and discovery of 78 rpm records that are 70 to 120 years old.


Of note, the Great 78 Project has been in operation since 2006 to bring free public access to a largely forgotten but culturally important medium. Through the efforts of dedicated librarians, archivists and sound engineers, we have preserved hundreds of thousands of recordings that are stored on shellac resin, an obsolete and brittle medium. The resulting preserved recordings retain the scratch and pop sounds that are present in the analog artifacts; noise that modern remastering techniques remove.


These preservation recordings are used in teaching and research, including by university professors[…]. While this mode of access is important, usage is tiny—on average, each recording in the collection is only accessed by one researcher per month.


While I strongly disagree with the length of copyright protection, after reading this and reading more about the case, from a purely legal perspective, I just don’t see how IA has any defense. They basically just seem to be saying “these are old records, so we should be able to copy them. Also, our work is mainly for academic researchers.” My guess is that they are arguing fair use, but I just don’t see how that applies here when they make copyrighted works available, for free, over the Internet.


The fourth part of the fair use test rests on whether the use of the work impacts the commercial market for the work.

Given these works are often:

  • Not offered in their original form
  • Would likely have little residual commercial value if so offered
  • And, the article states, are only accessed by one researcher per month

Indicates that the research, educational, and cultural value from this use likely far outweighs the impact to the commercial use of these works.

I find this confusing because, even if true, how could this be known in advance? Is the idea that they are so sure the recordings won’t be popular that they are comfortable risking the inevitable lawsuit? How is the average number of accesses across the collection relevant to the commercial value of any particular recording? It’s hard to believe that nothing in the collection has commercial value. With no DRM, how do we even know how many accesses there were given that the MP3s can be downloaded and redistributed?

It seems like Internet Archive is being increasingly aggressive, and I hope this doesn’t backfire and end up in the destruction of the organization and the uncontroversial parts of its stewardship.

Andy Maxwell:

From IA’s perspective, the project is all about the preservation of art. From the diametrically opposed view of the plaintiffs, the defendants willfully made copies thousands of recordings to which they own the copyrights. The digitized copies were then uploaded to the Internet Archive from where they were illegally distributed to users of the website millions of times.

The complaint lists 2,769 individual works from some of the most fmaous artists of all time, including Frank Sinatra, Ella Fitzgerald, Billie Holiday, Miles Davis, and Louis Armstrong. Listed songs include “White Christmas” by Bing Crosby, “Sing, Sing, Sing” by Benny Goodman, “Peggy Sue” by Buddy Holly, and “Roll Over Beethoven” by Chuck Berry.


The record companies further reject claims that the music being made available illegally needs to be ‘saved’. They claim that of the 2,749 recordings listed in the complaint, all but a “small sample” are already available to stream or download from licensed online platforms so they “face no danger of being lost, forgotten, or destroyed.”

Via Nick Heer:

While versions of some of these recordings are present in newer formats, there is to me a vast difference between preserving these specific pressings compared to making available any version. I have no idea if that makes a legal difference — again, not a lawyer — but there are artistic and technical reasons which should not be ignored. Different record pressings sound different, sometimes by a lot.

Besides, it is not as though people are treating the Great 78 Project as a replacement for a streaming service. The Internet Archive does not show total plays or downloads, but the most-viewed recording in the collection has less than 140,000 views as of writing. Notable for a 1942 folk recording, for sure, but the most popular song from the same artist on Spotify has over half a million plays.

Glenn Fleishman:

What IA and many others should be doing (and some have done in a limited way) is press Congress for cultural-preservation exceptions to digitization of out-of-print/out-of-media works. Instead, they are going boldly forward in ways that the courts will likely firmly find against, giving even more ammunition to media companies on ancient copyrights. There should be exceptions; what IA is doing is clearly outside the rules; the laws should change.


Update (2023-08-22): Craig Grannell:

I remember the same conversations 20 years ago when it was clear loads of 8-bit games were gone. IP owners don’t care. The ONLY reason we now have eg a fairly complete C64 archive is the pirates. It shouldn’t be that way. But it is.

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