RIAA Piles On In The Effort To Kill The World’s Greatest Library: Sues Internet Archive For Making It Possible To Hear Old 78s

On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.

However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.

But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.

78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.

If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:

Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.

Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.

It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.

The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.

And now he’s trying to kill the world’s greatest library.

Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.

The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.

The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.

When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.

Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.

Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.

Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.

Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.

There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.

It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.

But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.

It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.

Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.

And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.

Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.

Own Music! Own Books! – Popula

“It’s long past time for media ownership to be recognized as an essential right. The Internet Archive and all other digital libraries and archives must be protected, and people need to see this ludicrously unethical suit by big publishers for what it is: an assault on art and truth and its protection for posterity.”

Music Library Association Opens Publications at Internet Archive – Internet Archive Blogs

“For librarians who specialize in caring for music collections, it can be challenging to keep up with the latest technology and resources in the profession. The Music Library Association recently helped address this problem by making many of its publications openly available online.

The MLA donated 21 of its monographs to the Internet Archive for digitization and worked with authors to make the material free to the public under Creative Commons licenses. 

The new collection of backlist titles includes information on careers in music librarianship and history of the field. It also covers planning and building music library collections, which can be complicated and involve individual creators and small publishers, said Kathleen DeLaurenti, who helped lead the partnership with the Internet Archive in her role as MLA’s first open access editor. There are also valuable materials on music library approaches to technical services—everything from how to preserve music materials to how to bind and catalog them….”

Chopin Heritage in Open Access – Répertoire International des Sources Musicales

“30,000 photographs, 500 first editions of Chopin’s works, more than 3,000 issues of 19th-century magazines, almost 1,000 hours of recordings, manuscripts, works, Fryderyk Chopin’s correspondence, hundreds of iconographic objects and works of art – the largest Chopin collection in the world is now available online for free!…”

60,000 Digitized Sound Recordings from UCSB to Enter the Public Domain | UCSB Library

“On January 1, 2022, an estimated 400,000 sound recordings published before 1923 will enter the public domain thanks to a law passed in 2018. This is significant because, until 2022, no sound recording has entered the public domain due to copyright expiration. 

The UC Santa Barbara Library has already digitally preserved over 60,000 of those recordings from its collection, which will now be freely accessible to anybody, for any purpose, in high-resolution formats. …”

Project MUSE – An Open Access Scholarly Encyclopedia for Music: A Call to Action

Abstract:  While the idea of reference sources has become synonymous with the internet, online scholarly encyclopedias in music are currently only accessible to those affiliated with institutions that can afford expensive annual subscriptions and to those individuals who purchase costly personal subscriptions. Meanwhile, backup print copies have been inaccessible in libraries closed for the COVID-19 pandemic or closed to unaffiliated visitors. An open access scholarly music encyclopedia could solve these access problems while increasing the visibility and relevance of music scholarship and expanding the possible modes of digital analysis. This paper considers existing models of open access and identifies some potential paths forward for an open access scholarly subject encyclopedia, including leveraging Wikipedia, creating a new encyclopedia, or lobbying publishers to convert existing music encyclopedias to open access using a “subscribe to open” funding model.



Contemporary Music Score Collection | UCLA Library

“Published by the UCLA Music Library in eScholarship, the Contemporary Music Score Collection includes the digital, open access scores from the Contemporary Score Edition series, the first open access edition of new music published by a library, and scores from the Kaleidoscope 2020 Call for Scores, an open access collaboration with the UCLA Music Library. For more information about how to use or search the collection, see the Contemporary Music Score Collection Guide. …”

What is MEI?

“The Music Encoding Initiative (MEI) is a 21st century community-driven open-source effort to define guidelines for encoding musical documents in a machine-readable structure.

It brings together specialists from various music research communities, including technologists, librarians, historians, and theorists in a common effort to discuss and define best practices for representing a broad range of musical documents and structures. The results of these discussions are then formalized into the MEI schema, a core set of rules for recording physical and intellectual characteristics of music notation documents expressed as an eXtensible Markup Language (XML) schema. This schema is developed and maintained by the MEI Technical Team….”

Project breathing new life into forgotten medieval chants – Medievalists.net

“The Amra project, led by music historian Dr Ann Buckley at Trinity’s Medieval History Research Centre, is aiming to digitise and make freely available online over 300 manuscripts containing liturgical material associated with some 40 Irish saints which are located in research libraries across Europe….”

How Years Of Copyright Maximalism Is Now Killing Pop Music | Techdirt

“Almost five years ago, we warned that years of copyright maximalists brainwashing the public about ever expansive copyright and the need for everything to be “owned” had resulted in the crazy Blurred Lines decision that said that merely being inspired by another artist to make a song that has a similar feel, even if it doesn’t copy any actual part of the music, was infringing. We warned that this would lead to bad things — and it has.

Over the last few years, we’ve been detailing story after story of similar cases being filed. It’s become so common that we don’t even bother to write about most of the cases. As we’ve said, though, this really is the industry reaping what they’ve sowed. It’s gotten so crazy that even the RIAA (yes, that RIAA) has felt the need to tell courts that maybe their interpretation of copyright has gone too far in the direction of over-protecting copyright holders.

It’s now become such a fact of life that the NY Times has a giant article on how copyright is basically eating pop music these days. …”

A Selected Comparison of Music Librarians’ and Musicologists’ Self-Archiving Practices

Abstract:  The importance of open access (OA) advocacy is well-documented in the literature of academic librarianship, but previous research shows that librarians’ OA behaviors are less conclusive. This article compares the self-archiving practices of music librarians and musicologists to see how librarians rank in OA adoption. Availability of articles published from 2013 to 2017 in six green OA journals in music librarianship and musicology indicates a need for continued advocacy and enhanced understanding of OA policies and opportunities.

“Hip-Hop librarianship for scholarly communication: An approach to introducing topics” by Arthur J Boston

Abstract:  Hip-Hop music, business, distribution, and culture exhibit highly-comparable trends in the scholarly communication and publication industry. This article discusses Hip-Hop artists and research authors as content creators, each operating within marketplaces still adjusting to digital, online connectivity. These discussions are intended for classroom use, where students may access their existing knowledge framework of popular media and apply it to a new understanding of the scholarly communication environment. Research instructors and librarians may discover new perspectives to familiar issues through conversations with students engaging with this material in a novel way.