The non-profit Internet Archive (IA) aims to preserve history in a digital format for generations to come.
The organization literally archives key parts of the Internet, copying older versions of websites to preserve them for future generations. This information becomes more and more valuable as time passes by.
IA’s archiving work is not limited to websites either; it also helps to permanently archive video, software, games, and music. This includes efforts to digitally capture the unique sound of old gramophone music recordings, as its physical carriers are subject to decay and will eventually become unplayable.
The Great 78 Project
Six years ago, the Archive teamed up with other libraries and experts to archive the sounds of 78-rpm gramophone records, which are obsolete today. In addition to capturing their unique audio, including all crackles and hisses, this saves unique recordings for future generations before the vinyl or shellac disintegrates.
The ‘Great 78 Project‘ received praise from curators, historians, and music fans. However, not all music industry insiders were happy with it, as the copying took place without obtaining permission from all rightsholders.
Last summer, a group of major music labels including Capitol, Sony, and UMG, decided to take action. In a complaint filed at a U.S. federal court in California, they sued the Internet Archive, its founder Brewster Kale, the Kahle-Austin Foundation, and others who they believe are responsible
“When Defendants exploit Plaintiffs’ sound recordings without authorization, neither Plaintiffs nor their artists see a dime. Not only does this harm Plaintiffs and the artists or their heirs by depriving them of compensation, but it undermines the value of music,” the labels wrote.
With 2,749 recordings at stake, the potential statutory damages could run to more than $400 million. However, the Internet Archive sees things differently, believing that the ‘Great 78 Project’ is fair use.
IA’s Motion to Dismiss
Earlier this year, the IA defendants responded with a motion to dismiss. While fair use was mentioned, they argued that the lawsuit should be thrown out because it was filed too late. The defendants were already aware of the alleged infringements more than three years ago, which is past the three-year stature of limitations for copyright infringement.
IA backed up this argument with a letter it received from the RIAA more than three years ago, which specifically complained about the ‘Great 78 Project’. That cease and desist notice didn’t list any specific recordings but referenced artists including Elvis Presley, Duke Ellington, and Billie Holiday. It further characterized IA as a platform that enables piracy on a massive scale, mentioning “thousands” of recordings.
“Your unauthorized reproduction, distribution and public performance of these recordings is a plain violation of the RIAA member companies’ rights under the Classics Protection and Access Act (‘Classics Act’), 17 U.S.C. § 1401, and constitutes nothing less than piracy on a massive scale,” RIAA’s letter reads.
According to the Archive, this clearly suggests that the labels, who are members of the RIAA, were aware of the issue more than three years before they filed their complaint. For this reason, it asked the court to dismiss the case.
Court Denies IA’s Motion
After reviewing IA’s arguments and the response from the record labels, U.S. District Court Judge Maxine Chesney denied the motion to dismiss. According to the Judge, it is not clear that the statute of limitations expired for all works.
The fact that the RIAA’s letter didn’t mention any specific infringements plays a crucial role here. While the music companies were clearly aware of the ‘Great 78 Project’, the letter doesn’t show that they were aware of all specific infringing copies at the time.
“[T]he letter on which defendants here rely does not identify any specific sound recording, let alone any of the Sound Recordings at Issue,” Judge Chesney writes.
“Although, at a later stage of the proceedings, Internet Archive Defendants may be able to use the letter to show one or more of the alleged acts of infringement described in the [amended complaint] occurred outside the limitations period, such showing has not been made at the pleading stage.”
Foundation’s Motion to Dismiss Fails Too
In addition to the main IA defendants, the Kahle-Austin Foundation also filed a motion to dismiss the amended complaint (AC). The foundation is a donor to the Internet Archive and argued that the record labels failed to show that it knew of the alleged infringements, let alone that it contributed to them.
After reviewing the arguments from both sides, the court concludes that the Foundation’s motion to dismiss should be denied as well. The fact that the Foundation’s President, Brewster Kahle, also appears to be a driving force behind the Internet Archive’s ‘Great 78 Project’ plays a key role here.
“[T]he AC alleges ‘Kahle established the Foundation as his and his wife’s preferred vehicle for funding his favored projects, including Internet Archive’, and that Kahle ‘create[d]’ Internet Archive’s Great 78 Project, which Kahle described in an article he wrote as ‘[a]ll good” and “[a]ll fun’.
“In other words, the AC alleges that the purposes of the Foundation and the purposes of Kahle, the Foundation’s President, are one and the same,” Judge Chesney adds.
Kahle’s central position is a reason not to dismiss the complaint against the Foundation at this point, as it suggests that the foundation was likely aware of the allegedly infringing activity, and many have contributed to it, according to the letter of the law.
Based on these and other arguments, the court finds that it’s premature to dismiss any of the claims against the parties involved at this point. Of course, the case still has to be argued on its merits, and this ruling says nothing about other defenses, including the fair use arguments.
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A copy of U.S. District Court Judge Maxine Chesney’s order on the motions to dismiss is available here (pdf)
