Internet Archive responds to recording industry lawsuit targeting obsolete media

I'm also a little sad that this disclaimer is even needed. I think it says something about how the character of HN has changed in the last ten years--there's no longer an assumption that the people on the other end of the wire assume curiosity and good will. There's a lot more heat here these days.

And why should we need to confine our replies to a narrow and arbitrary framework of existing case law, when there is so much more at play?

From the article

I believe they are arguing that the intent behind the digitization is fair use, as you say, but what I find interesting is they seem to argue that there is no loss of profit from their work, which is a valid point to raise - if this is all hypothetical exceptions can and should be made to the law.

Even if they don't have a case, say the copyright law is very tight and clear and there's no way this can skirt around it - they still can bring it to court, fight it, and lose until they get it overturned by the Supreme Court and they get a special status or the copyright law is amended. This is standard - it's how the 19th amendement was passed I believe, I'll look for a link.

Edit: to clarify, there is no damage to the copyright holders because the medium holding their work is impossible to be used to listen to their work by anyone but experts, like the IA

Edit 1: Here's what I was remembering - it's not an amendment, but it's neat!

https://lithub.com/how-ruth-bader-ginsburg-and-gloria-steine...

By doing something that's technically illegal but antithetical to the spirit of public good, IA is highlighting how perverted copyright law has become.

You want people to refrain from criticizing record companies greed but there's a clear argument that highlights this as the main motivation. Artists who own their own copyrighted works sometimes buy up old media of themselves and refuse to license it for fear of impacting the image they've created for themselves (or just because they're embarrassed). Very much different from this scenario, record companies are preventing use in a way that looks like extortion.

In my view, it's not that there isn't an argument to made that this is an illegal act, it's that there's a deeper question of whether it should be. Sometimes new laws are changed by breaking them.

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 worry that they're going to end up, as with Lessig, ending up in a case that creates terrible fucking case law that screws up copyright law even more than it already is. Like, if they win, it will be by making it impossible to enforce copyright for anyone who can't show substantial profit, zeroing copyright for anyone who isn't Oracle or Sony. Or they'll do such a shit job of defining what an archive or public interest or lending library looks like that they'll destroy the legal protections that libraries and archivists currently enjoy.

> In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

> 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

> 2. the nature of the copyrighted work;

> 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

> 4. the effect of the use upon the potential market for or value of the copyrighted work.

So, everything in the article is relevant to 1, 2, and 4. In fact, besides element 3, to me this usage strongly matches each of these criterion. Fair use is interpretable, though, so the outcome of the case if it goes to trial will be dependent on the judge.

How else would you interpret their behavior though? They are hundreds of thousands of dead artists on this archive and they specifically attack the ones which made money.

The conclusion can only be that those record companies are just after the money, I don't see any other possible one from this behavior.

With the digital (and maybe Bigdata/ML) age, copyright protections need some revisions & broadened scope of "fair use". But digitizing and making media items available over internet face the arguments that piracy sites get accused of. IA is a respectable agency, and these media is from 50s & 60s. But the optics of it from legality remains the same unfortunately. I wouldn't also believe these having no commercial value. Among the collection, I found popular artists such as Louis Armstrong - who I still listen to over Spotify/Apple.

IA would probably cut some losses if they disable all streaming or only provide 30sec clips (as preview), while keeping the music archive more restricted. Not that I like this proposition, but if we are serious about preserving the legacy of 78rpm, some more consideration could be useful. Copyright laws in their current form is (unfortunately) unforgiving to IAs efforts in this context.

This system as I understand it doesn't apply to any of their non-book collections (not to mention it only applies to files that IA has uploaded themselves, the archive also accepts user submissions).

Fair Use is very unlikely to apply here I think. The fair use test looks in part at the question of how much of the copyrighted work is distributed (ie. A radio program promoting a song with a short jingle has a much more solid defense than others.) and "all of it" isn't a good defense. They could've put these recordings under their usual lending system, but they didn't and that probably makes them liable.[1]

For reference, I am not a lawyer, so if you think this is legal advice, go talk to an actual lawyer.

[0]: The ebook lawsuit they recently lost was because they disabled all lending restrictions for the pandemic, triggering the lawsuit. The lawsuit itself is ballooned with other crap because the usual nonsense from publishers is a thing, but the grounds for the lawsuit were unfortunately very solid.

[1]: That said, this lawsuit was probably triggered because the judge in the ebook case partially stripped IA of its library protections. The record companies probably are trying to arrange a similar removal of protections from IA, hence why this specific collection was targeted.

What's working in their favour:

1. The intended use of the copyrighted work. The recordings are not pristine, culturally important, and have limited commercial consumption potential in their available form.

2. Nature of the copyrighted work, i.e. Is the use to further creative expression(yes) or consumption(no). IA's own access statistics and duration of the project can strengthen this point.

3. Potential market/value of the copyrighted work: This will play significantly in their favour as the records are dated, rarely sold and not pristine/remastered.

What isn't working in their favour:

1. Unvetted self-serve distribution over the Internet: However this case is an excellent opportunity to extend the face-to-face education exception to self-serve online educational resources. This would be a reasonable modernisation of the clause, and would still provide a clear boundary between the education and commercial use purposes.

If so then eventually all music will be free, because it will be repeating a previous iteration of the same tune.

This also implies that music is discovered, not invented.

That's an incorrect rendition of the underlying facts. Happy Birthday was based on the tune of Good Morning to All, and this history was well known even when Warner was on a warpath demanding licensing fees for singing it. The invalidation instead arises from the fact that available evidence indicates that the words to Happy Birthday were not written by the Hill sisters and thus the song was never properly copyrighted.

The media industry has had it out for the internet archive for a long time. I don't think they see this collection as a threat any larger than anything else the archive is offering. They've also been endlessly pushing for more and more control over the internet.

They've been largely successful getting ISPs to perform vast amounts of work for them entirely for free and without question. They can force ISPs to permanently disconnect users based on nothing but unproven accusations. ISPs who fail to cut their customers off from the internet risk an endless barrage of massive lawsuits. Courts have so been agreeing with the RIAA that this is acceptable.

They've been able to force ISPs in many countries to censor and block access to online content on demand based on nothing but their assurance that something is infringing. In the US they've had less success with content blocking and blacklists but they keep pushing and pushing.

It's insane how much power they've been able to get already, but they aren't satisfied. I see this attack on the internet archive as just another push for control over online media.

> A certain cord progression or beat or a creative lyric and rhyme long forgotten in this old music could endanger parts of their current music catalog.

The conspiracy theorist in me believes that this is actually a feature for them! Anyone who dares to make music without paying the cartel is forever at risk of having their works challenged for sounding too similar to something else. If you're a musician and don't want to pay up and hand your creative works over to the RIAA you'll be giving up the protection of RIAA lawyers.

Most of the other copyright owners who might sue you are also in the RIAA (or their international equivalents) which can make it easier to reach "an understanding" outside of the court system avoiding expensive lawsuits a struggling independent artist can't afford. The constant threat of having your songs challenged helps them operate as a protection racket and keeps independent artists in a very vulnerable position which drives up membership and discourages competition.

DMCA requests are only when you host a platform where others can upload content. As a platform owner, if you take the content down, you won't be held liable for copyright infringement. But the original uploader definitely still can be! In this case, IA is the uploader.

I will point out that the Internet Archive is among the foremost source of warez[1] today.

Being brutally honest, what Internet Archive is doing these days isn't archiving or academic fair use anymore. They are flagrantly violating copyright, or enabling violations of copyright, and that is straight up not okay.

As an aside, do not be fooled into thinking all those ISOs[1] were provided by the rightsholders. They were not, even if they seem so at first glance. I would say the way they present the information is disingenuous at best, deliberate obfuscation at worst.

[1]: https://archive.org/details/cdromimages?tab=collection

If they want to archive copyrighted material, they should do it and sit on it until the copyright expires. If the hope is that the archive is around 1000 years from now, then what’s the rush to release these 78’s right now?

Really? I don't know turntables, but I feel like every DJ wants a Technics one. The first several I looked at on their website play 33 1/3s, 45s, and 78s.

In it, Sony, et al. state on pages 13 and 14 that Internet Archive failed to take necessary actions and file required paperwork with the US Copyright Office as required under the Music Modernization Act.

The DMCA is never mentioned in the suit, so I presume no DMCA takedown requests were sent.

[1]: https://torrentfreak.com/images/1-23-cv-07133-UMG-et-al-v.-I...

In this case, the uploads were done by the Internet Archive itself, not by a near-anonymous user. So there's no point to sending a DMCA takedown - the copyright owner already knows the identity of the original uploader, they're easy-to-identify and they have money to pay damages. Therefore, they're just suing the IA directly.

Modern records use a so-called "microgroove", usually crystal needles in the cassette, and one or so grams of tracking force. You probably wouldn't pick anything up off a shellac record, if you tried playing it.

Basically the technical reason is that the 33/45 record groove is read laterally, while the 78 groove is read vertically. So both cannot be properly achieved with the same reading apparatus.

Elon will just sue to force them to rename it "I Lift Up My Finger & I Say X X"

If it were possible to construct huge gasometers and to draw together and compress within them the whole of the atmosphere, it would have been done long ago, and we should have been compelled to work for them in order to get money to buy air to breathe. And if that seemingly impossible thing were accomplished tomorrow, you would see thousands of people dying for want of air – or of the money to buy it – even as now thousands are dying for want of the other necessities of life.

You would see people going about gasping for breath, and telling each other that the likes of them could not expect to have air to breathe unless the had the money to pay for it. Most of you here, for instance, would think and say so. Even as you think at present that it’s right for so few people to own the Earth, the Minerals and the Water, which are all just as necessary as is the air. In exactly the same spirit as you now say: “It’s Their Land,” “It’s Their Water,” “It’s Their Coal,” “It’s Their Iron,” so you would say “It’s Their Air,” “These are their gasometers, and what right have the likes of us to expect them to allow us to breathe for nothing?”

And even while he is doing this the air monopolist will be preaching sermons on the Brotherhood of Man; he will be dispensing advice on “Christian Duty” in the Sunday magazines; he will give utterance to numerous more or less moral maxims for the guidance of the young. And meantime, all around, people will be dying for want of some of the air that he will have bottled up in his gasometers.

And when you are all dragging out a miserable existence, gasping for breath or dying for want of air, if one of your number suggests smashing a hole in the side of one of th gasometers, you will all fall upon him in the name of law and order, and after doing your best to tear him limb from limb, you’ll drag him, covered with blood, in triumph to the nearest Police Station and deliver him up to “justice” in the hope of being given a few half-pounds of air for your trouble.’

    Robert Tressell, The Ragged-Trousered Philathropists (1914) | Ch 15