A SAN FRANCISCO federal court is host to a fight between a nonprofit enterprise with a mission to provide “Universal Access to All Knowledge,” and a group of record companies that own the rights to songs recorded by the likes of Bing Crosby, Billie Holliday and Miles Davis.
In a Wednesday decision authored by U.S. District Judge Maxine Chesney, the record companies drew first blood.
The case began in New York in 2023 when seven record companies launched a copyright suit against Internet Archive, along with its founder and funder Brewster Kahle and his personal foundation, as well as George Blood LP a Philadelphia-based audio engineer that has digitized hundreds of thousands of recordings from old 78 rpm records.
Internet Archive, based in San Francisco, describes itself as “a non-profit library of millions of free books, movies, software, music, websites, and more.”
Its most well-known project is the “Wayback Machine,” a tool for researchers, scholars and journalists, among many others, that allows them to see what a website looked like in the past. Internet Archive says that it “serves millions of people each day and is one of the top 300 websites in the world.”
The record companies — including the familiar labels Capital, Universal, Arista, and Sony — targeted a project of the Internet Archive called the “Great 78 Project,” which has created a repository of digitized recordings of 78 rpm records.
The project started in 2017 and today boasts more than 400,000 recordings. The project makes the recordings available to the public for download without charge.
The record companies hold the rights to thousands of the projects’ recordings and they sued for infringement — and requested damages and injunctive relief — under multiple theories. They said that what the Internet Archive has done is a “massive” and “blatant” infringement of “hundreds of thousands of works by some of the greatest artists of the Twentieth Century.”
The record companies gave as examples of the recordings that the project is making available to the public: “White Christmas” by Bing Crosby, “Sing, Sing, Sing” by Benny Goodman, “Peggy Sue” by Buddy Holly, “Roll Over Beethoven” by Chuck Berry, and “I’ve Got the World on a String” by Frank Sinatra.
In stinging prose, the complaint took aim at the Internet Archive’s self-described goal of preserving the world’s cultural history for research and scholarship. In the plaintiffs’ eyes, that noble purpose is all a smokescreen.
They say, “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.”
Attempts to dismiss the case
After the case was filed in New York, the defendants moved that it be transferred to San Francisco where the Internet Archive is based and Kahle lives. The motion was granted and the case landed in front of Chesney in December 2023.
In January 2024, the defendants filed motions to dismiss the record companies’ complaint. A motion to dismiss asks the court to find that even if all the facts that the plaintiff alleges are found to be true, they do not amount to a valid legal claim.
The defendants’ motions did not go after all of the plaintiffs’ claims, but targeted two that if eliminated could drastically reduce the scope of the case.
The first was the inclusion of Kahle’s charitable foundation as a defendant.
Kahle’s argument was that any infringement was the Internet Archive’s responsibility; his foundation was just the source of charitable funding and could not be held liable. He also said that it would set a horrible precedent for a charitable organization to face liability for the acts of its grantees just because it gave them charitable grants.
Chesney was not persuaded. She said that “contributory infringement” can be established where one “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.”
She then examined whether the foundation was alleged to have knowledge of the infringement and materially contributed to it.
The judge was not persuaded by the defendants’ motions to dismiss the case.
On the knowledge point, she found that as a result of Kahle’s multiple roles — chair of the board of Internet Archive, as well as president and principal funder of the foundation — his knowledge could be attributed to the foundation.
She also found that the complaint properly asserted that the foundation made a material contribution to the alleged infringement not just by making charitable grants but by the fact that Kahle, as its president, had “close involvement in and oversight of Internet Archive’s operations,” including collecting and digitizing recordings, publicizing the project, and asking the public to donate 78 rpm records. That was enough, at this stage of the case, to allow the plaintiffs to move forward on this claim.
The second motion to dismiss sought to eliminate alleged infringements that occurred more than three years before the suit and therefore arguably barred by copyright law’s three-year statute of limitations.
Chesney noted that under copyright law, each unauthorized use of copyrighted material was a separate infringement and governed by its own statute of limitations. She said given the thousands of copyrighted materials and the many alleged infringements, the defendants had not at this stage of the case been able to establish which claims were barred. For the time being. She denied this motion though she said that defendants may be able to revisit it down the road.
Determining fair use
Neither of the motions nor the judge’s opinion reached what will be a central issue in the case — that is whether the Internet Archive’s copying and facilitating the public downloading of the recordings amounts to “fair use” under the copyright laws.
Fair use is a defense to a claim for unauthorized use of copyrighted material when the copying is in aid of a societally useful activity such as scholarship, research, criticism or teaching and the use does not substantially impair the value of the copyrighted work.
Because fair use is highly fact dependent and is decided on a case-by-case basis, it can often be difficult to know in advance whether a use will be deemed to be fair use.
The doctrine requires a court to evaluate a number of key factors, including whether the use diminishes the market for the copyrighted materials, whether the new use is transformative — that is, whether it is a different type of use than the prior uses of the copyrighted material, and whether the unauthorized use is a substantial part of the copyrighted material or just a small excerpt.
In another case involving Internet Archive, a group of book publishers convinced a federal court in New York in 2023 that Internet Archive’s “controlled digital lending” program was not fair use. That case challenged a program where Internet Archive scanned a hard copy book and then “lent” the digital copy to the public.
The court found that the scanning was an unauthorized use of copyrighted material and that it was not redeemed as a fair use. The judge found that all of the fair use factors were in favor of the book publishers. The court found that controlled digital lending program was not “transformative” — that is, it was not a new use — and it substantially diminished the value of the publisher’s rights.
The New York case is currently on appeal to the U.S. Court of Appeals for the Second Circuit and is likely to be decided this year. Numerous organizations from the publishing, library and technology worlds have appeared in the closely-watched case as “friends of the court,” supporting one side or the other.
While the outcome of the New York appeal will not directly control the result of the Great 78 Project case, a loss there would not help Internet Archive with respect to its anticipated fair use defense in San Francisco.
An invitation to counsel for the defendants to comment on Chesney’s decision was not immediately accepted.
The post Facing the music: Internet Archive accused of illegally digitizing thousands of old records appeared first on Local News Matters.