The US record industry has made another legal filing in its copyright legal battle with the Internet Archive over the Great 78 Project, which has digitised and made available over 400,000 recordings that were originally released as 78rpm records. Universal Music, Sony Music and Concord were responding to a motion to dismiss recently filed by IA, which raised both the statute of limitations and good old fair use.
In terms of the IA's initial bid for dismissal, the fair use defence is secondary, but the arguments it has prompted are much more fun. IA insists that the Great 78 Project is a not-for-profit venture that seeks to "systematically digitise” all these old recordings, “hisses, pops and all, in order to preserve them for scholars and future generations".
But, say the music companies, "there is zero basis for arguing that the hisses, crackles and pops that have developed over time grant defendants the right to copy, distribute and transmit on a mass scale recordings that they know copyright law protects". Not least because, they add, the crackles don't represent a historical record of the original recording, but instead simply illustrate the flaws of an old physical record format that degrades over time.
The labels sued IA in August last year, stating in their lawsuit that, “defendants attempt to defend their wholesale theft of generations of music under the guise of ‘preservation and research’, but this is a smokescreen: their activities far exceed those limited purposes”.
In its motion for dismissal, IA mainly hones in on the statute of limitations in US copyright law, which says that infringement action must be filed within three years of either the actual infringement taking place or when the copyright owner becomes aware of it. The Recording Industry Association Of America sent IA a cease and desist letter in July 2020, suggesting its members were aware of the infringement at that point.
Their lawsuit was filed more than three years later, albeit only just. Therefore, IA argues, at least some of the recordings that the labels are suing over would have been copied beyond the statute of limitations. And the claims in relation to those recordings should be dismissed.
But IA "misrepresents the contents of that letter", say the labels in their new filing. The motion for dismissal "implies that the letter identified specific works", but "the letter did not refer to any specific works and did not identify any dates related to defendants’ infringements. Thus, the letter cannot demonstrate that plaintiffs were aware, or should have been aware, that defendants infringed any of the particular works in suit at the time the letter was sent".
Although the motion for dismissal really centres on the statute of limitations, the IA's filing did also claim that its archiving of old 78rpm records "fall squarely within both the text and the spirit of the Copyright Act’s fair use defence". Under US law, if a use of copyright protected work is fair use, permission need not be sought from a copyright owner.
But, in their latest filing, the music companies state, "fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed and performed in something other than its cleanest sound".
"Contrary to defendants’ arguments", they go on, "recording the hisses and crackles does not preserve how the records sounded on release. Instead, it anachronistically captures how an older format behaves after more than seventy years of aging ... if ever there were a theory of fair use invented for litigation, this is it. Defendants’ wholesale theft of generations of music is far divorced from their purported limited purposes of 'preservation and research'".