Pride goeth before destruction, and an haughty spirit before a fall. (Proverbs 16:18 KJV)
Citing 2,749 works in suit, six of the major music labels (UMG, et al.) have filed a multi-count complaint against Internet Archive (IA), Brewster Kahle personally, Kahle’s foundation, and an audio digitizing service operated by an individual named George Blood. Total potential damage award with legal fees: around a half-billion dollars. Likelihood of defendants’ success, assuming all factual allegations are well-founded: less than zero. So, while I have no idea how much cash on hand Kahle has to burn, this suit highlights a question I have often asked myself—namely how eager is he to put his money where his anti-copyright mouth is?
As the outcome in the book publishers’ lawsuit, Hachette et al., makes clear, cockamamie theories about how the law works may find an audience in the blogosphere, but they make poor arguments in court. In that case, Internet Archive relied on a cockamamie theory called Controlled Digital Lending (CDL) and hitched that wagon to a belief that the practice was shielded by the doctrine of fair use. The defendant lost on every point, and a negotiated judgment is already filed with the court notwithstanding IA’s right to appeal.
In this new case with the record labels, IA does not even have the gossamer of an unfounded theory to weave into its response. Instead, the initiative IA calls “The Great 78 Project” is alleged to entail knowing evasion of compliance with clearly defined statute. Without going into each of the counts against each of the defendants, the crux of the matter is that Great 78 makes digital copies of sound recordings from 78RPM vinyl records and hosts those files for unlimited streaming or downloading. So, if any of those sound recordings are still under copyright, this implicates violation of three of the exclusive rights under Section 106 of the Copyright Act—reproduction, distribution, and public performance by digital audio transmission (§106(1), (3), & (6) respectively).
The Great 78 Project purports to make available rare and difficult-to-find sound recordings, and presumably, some portion of the collection comprises works in the public domain (PD) and/or truly rare works that are not commercially available. But headlining the more than 2,000 works in suit, the complaint cites recordings that are neither in the PD nor rare by any means. Popular recordings by Elvis Presley, Duke Ellington, Billie Holiday, Ray Charles, Chuck Berry, Frank Sinatra, Ella Fitzgerald, Louis Armstrong, and Hank Williams are named as prime examples that can be accessed by legal, commercial means, including major streaming services.
The reason commercial availability of the sound recordings is relevant in this case is that under the provisions of the Music Modernization Act (MMA) of 2018, a library/archive is permitted to make pre-1972 sound recordings available if, among other conditions, it makes a good-faith effort to determine that the recordings are not commercially available. That is a pared down description, but it’s the basic principle, which IA apparently chose to ignore. According to the complaint, IA made no effort to fulfill its obligation to comply with any of the following Copyright Office guidelines:
…a reasonable search for purposes of 17 U.S.C § 1401)(c) must include, among other things: (i) searching the Copyright Office’s database of indexed schedules listing right owners’ pre-1972 sound recordings; (ii) searching Google, Yahoo!, or Bing; (iii) searching at least one of the following streaming services: Amazon Music Unlimited, Apple Music, Spotify, or TIDAL; (iv) searching YouTube; (v) searching SoundExchange’s repertoire database; (vi) searching at least one major seller of physical product, namely Amazon.com.
Moreover, the complaint cites compelling evidence that the defendants understood their obligations under §1401 and that failure to comply would constitute copyright infringement of works like the sound recordings in suit. For instance, IA stated in a blog post about the MMA shortly after it was signed into law, “But, as we understand it, 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.” The only logical conclusion, therefore, is that defendants ignored the “reasonable search” guidelines because it is obvious that many of the sound recordings at issue can be found commercially available by a young child using Google.
Will Kahle’s Copyright Hubris Kill His Archive?
A significant distinction between this suit and the Hachette case is that Brewster Kahle and the Kahle/Austin Foundation are named defendants. The complaint alleges that Kahle is directly involved in IA policy, activities, and promotion, including the Great 78 Project, that he funds the foundation through his trust, and the foundation, in turn, funds the project. “At Kahle’s direction, the Foundation used the funds Kahle had contributed to sponsor the Internet Archive’s massive and growing infringement. The Foundation donated money to Internet Archive that Internet Archive used to pay costs in furtherance of its infringement…” the complaint states.
The Internet Archive and its friends will, no doubt, repeat populist claims that they are serving the public, behaving as a library should, and that they are being targeted by a greedy industry. But the conduct alleged in the UMG complaint reveals an even more brazen decision to circumvent copyright law than the CDL scheme underlying the Hachette suit. In the book publishers’ case, IA advanced a theory (albeit a poor one) that it was acting within the confines of the law, but here, it simply elected to evade clearly articulated statutory confines and take its chances. And this time, the cost could indeed be the whole operation.
I get why many people want to support IA, not the least being that a large part of the organization is both legal and highly useful. Among those who simply agree with Kahle et al. that copyright should not exist, that pre-1972 sound recordings should not be protected, etc., fine. That’s an opinion to which people are entitled. But beyond that general view, IA supporters should not be confused into thinking this case is about big bad industry beating up on a library doing library-like things. Assuming the factual allegations are correct, there is barely a distinction between the alleged infringing conduct in the Great 78 Project and The Pirate Bay. And to the extent the legitimate archive has been treated like a front for mass infringement projects, the blame for that decision rests with Kahle and his colleagues, not with the music or book publishers.
Since the first post I wrote about Internet Archive, I have acknowledged that the repository of public domain and truly rare material is an invaluable research tool. In fact, that post in October of 2017 asked directly whether the anti-copyright rhetoric was necessary to the organization, but since then, it has become clear that Kahle has used IA’s operation and reputation to engage in much more than rhetoric. And in this potentially costly litigation with the record labels, it is conceivable that this hubristic crusade against copyright law could, as the proverb says, lead to the collapse of an otherwise good enterprise.
Photo by: panoramaimages