While I strongly disagree with the length of copyright protection, after reading this and reading more about the case, from a purely legal perspective, I just don't see how IA has any defense. They basically just seem to be saying "these are old records, so we should be able to copy them. Also, our work is mainly for academic researchers." My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.
Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards, or how the IA is doing great work, or how copyright protection has strayed from its original goals of encouraging innovative new works to become a victim of rent-seeking behavior, or that the law itself is unjust here. All of that I wholeheartedly agree with. I'm not a lawyer, and I'm just interested in trying to understand if they have any legal defense that isn't going to get laughed out of court.
> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.
The fourth part of the fair use test rests on whether the use of the work impacts the commercial market for the work.
Given these works are often:
- Not offered in their original form
- Would likely have little residual commercial value if so offered
- And, the article states, are only accessed by one researcher per month
Indicates that the research, educational, and cultural value from this use likely far outweighs the impact to the commercial use of these works.
Just wanted to say I very much appreciate your thoughtful response. I wasn't aware of the details on the 4 tests of fair use, and your comment led me to some helpful searches. For anyone else who is interested: https://nwtc.libguides.com/c.php?g=43772&p=7188025
I am completely on the IA's side here, and I hope they win the case. Down with copyright.
However, "on average, each recording in the collection is only accessed by one researcher per month" seems to me like a dishonest way to present the data. Surely surely there are one or a few recordings in the project that are vastly more popular than others. That's always how it goes. So "on average" completely obscures how popular the most popular ones might be.
Shouldn't the plaintiffs then single out that particular popular record, and not try to take down the entire catalogue? It goes both ways - if you ask for all you get data about all and that data shows one access/month.
The plaintiff doesn't want to open a loophole. Suppose that one of these records gets used in a major film soundtrack, and now everybody is downloading it. They will have a harder time asserting their ownership if they don't defend it now.
Their approach stands on applying the law as written: "This is mine and you can't have it, even if I don't really much care about it."
As I understand it: in USA law copyright, unlike a trademark, is not invalidated by failure to defend it. You are free to ignore unauthorised copying of, or usage, of your work until such time as you find it sufficiently objectionable.
I disagree. A median value might be really misleading (you could have very high usage for 49% of the collection, and nothing for the rest). But assuming average means "mean..."
You might have a few hotspots, but there's a very tight upper bound on how many downloads of each item. Further, it argues that the overall collection has a very high research and preservation value compared to the total number of downloads.
I don't agree. The size of the set is of paramount importance to that point. They can always bring the mean down by just adding more recordings to the set, to further obscure how popular the most popular recordings are. In a set of 10 billion, of course people aren't listening to most of them.
Quite clearly what the plaintiffs are afraid of is that there are a few very popular works in there that they could be making real money from. There's no way to know this from the mean alone.
The companies have very successful legal departments. They go after the next lowest hanging fruit. They are just working, it's their job description to do this. This is why they will never stop, it never gets too absurd or overly unreasonable.
Even if all the traffic were from 100 pieces, that's a few thousand downloads per month. Let's talk about those specific pieces, then, instead of trying to obliterate an archive.
Note that the Supremes recently ruled that commercial use isn't necessarily a gate to fair use. I'm not thinking about the Warhol case. Maybe it was the Oracle/Java case?
Also, there are some odd fair use things, like the google books case, which may tilt the court in the archive's favor.
Couldn’t one argue that while there’s _minimal_ commercial viability of this work now, it’s still not zero? And that by making these available they could make it zero?
Zero and minimal are the same thing when it costs non-minimal resources to bring something to market and reach potential customers through advertising etc. When it costs you $15 to make a $10 sale you are not losing money to abandon the market.
The test doesn't require there to be no impact on the commercial viability of the work; rather, benefits exceeding the loss in commercial value of the work is one (important) factor arguing in favor of fair use.
Be interesting to know if Sony et al are selling these songs (as MP3s, rather than 78s, I'd assume) and if so how much they make. That would presumably be used to judge the actual commercial value. And this would only apply to the songs which are still in copyright - sadly not zero given they're all by definition at least 70 years old.
"Statement from Brewster Kahle, digital librarian of the Internet Archive:
“When people want to listen to music they go to Spotify. When people want to study sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”"
From the article
I believe they are arguing that the intent behind the digitization is fair use, as you say, but what I find interesting is they seem to argue that there is no loss of profit from their work, which is a valid point to raise - if this is all hypothetical exceptions can and should be made to the law.
Even if they don't have a case, say the copyright law is very tight and clear and there's no way this can skirt around it - they still can bring it to court, fight it, and lose until they get it overturned by the Supreme Court and they get a special status or the copyright law is amended. This is standard - it's how the 19th amendement was passed I believe, I'll look for a link.
Edit: to clarify, there is no damage to the copyright holders because the medium holding their work is impossible to be used to listen to their work by anyone but experts, like the IA
Edit 1: Here's what I was remembering - it's not an amendment, but it's neat!
I think there's both a legal defence (its for legitimate research) and a law-change-advocacy (we think copyright in these works is silly) component to what they're doing.
I don't think you are wrong about the risks to them in fighting the case with what looks to be such abundently clear IPR over the mechanical recording. But, I do think the wider fight about what "should" be the IPR here, is worth fighting.
That advocacy lies in the part of your comment which heads off the "RIAA is bad" fu.
Shellac 78s are old but equipment to play them is commercially available and they can be played on turntables that support 78 rpm with the right cartridge.
I misplaced the 78 belt for my Pro-ject turntable during a move a few years ago and in the mean time found a copy of New World Symphony that I’ve been wanting to listen to.
I have a collection of several dozen 78 rpm shellac records that I inherited from my father, who inherited them from his father. I have a turntable but it won't play 78s. Been wanting to check with my local university to see if they could digitize them and maybe take the originals as a donation.
I have also thought about looking for an old Victrola at an antique market and keeping them to play as a novelty, but it would really be just that.
Shellac can be made out of different things, and has been a common polish for wooden instruments for example, before we got chemical protections like nitrocellulose lacquer. For handmade instruments [shellac and french polishing](https://www.lmii.com/blog/2017/10/07/finishing-options-for-m...) is still often preferred due to being environment and human friendly (chemical lacks are often non-healthy for the human who works with them), relatively inexpensive (cook your oyster shell :)), and for being do-it-yourself solution which many luthiers prefer. Some people claims a guitar polished with shellac sounds better than one with a cellulose lack, but I am not sure if I agree that is a deciding factor for the sound, probably more of a psychological factor.
It's not a question of if it's physically possible. It's a question of what the customer is going to do. You can't play a 78 on your iPhone. You can play Spotify on your iPhone. So the customer is going to use Spotify.
there is another issue here also which applies to video not music, but would probably end up coming up in the future.
If people want to watch a video (assuming they don't pirate) they use the video service that provides them that video.
If people want to use a clip from that video in some other production (fair use scenario applies here) they can't copy it from the video service because of DRM.
They are indeed making copies in the strictest sense, but the real problem is if the copyright holders don't enforce their copyrights in the strictest sense they can forfeit their copyright. For example, if I let the public use an image copyrighted by me long enough without strict guidelines and I try to take someone to court, the court can say yes well you let the horse out of the barn and now you are trying to put it back in after it's everywhere. The solution is always licensing, and licenses can be free. So IA and the copyright holders instead of playing hard lawyer ball can cooperate; the copyright holder can grant them a free license for works that would otherwise not be getting exposure of make them money which they can revoke at any time should they decide to try and make money off of a work again. They can also provide strict usage guidelines in that license for IA as well as IA's users so it's clear this is meant for a narrow use and using it outside those guidelines can result in legal/financial penalties. To me this is a win-win because it could open the door for companies like Spotify to subsequently license works that gain popularity from exposure for a fee.
The page you've linked says: "Copyright protection is effectively never lost, unless explicitly given away or the copyright has expired. However, if you do not actively defend your copyright, there may be broader unauthorized uses than you would like."
How on earth did you read that and come to the conclusion that BYU 'asserts (sic) the opposite' ?
Suppose a copyright holder knows people are infringing their copyright and chooses to turn a blind eye to it - and then after many years of doing this, suddenly decides to assert its rights and sue the infringers (maybe the copyright has been acquired by a new owner who is desperate to make money from it, somehow, anyhow.) Is it possible that the defendants might raise estoppel as a defence? Or argue that the copyright holders failure to act on the infringement when it was widespread public knowledge constituted an implicit license?
I’m not saying those defences would actually work. Indeed, my non-lawyer gut-feel is they probably wouldn’t. But now I’m wondering if anyone has ever tried those arguments? And if nobody has ever tried them, I think there remains a chance they might succeed, even if that chance is small. And if they ever did succeed, that would effectively amount to “defend it or lose it”, although the owner technically would not have lost the copyright, just (some of) their ability to sue infringers.
Trademarks require enforcement (as others have noted), copyrights do not.
There is the doctrine of laches which might be applied in general to an excessive delay in asserting an equitable right, but there is no failure-of-defence loss of copyright under US or generally Berne Convention statutes globally. I've most frequently seen laches raised in the context of patent enforcement. <https://www.law.cornell.edu/wex/laches>
This is rampantly false and misleading information.
My understanding is that trademarks require enforcement (i.e. why we can 'xerox' a page) but copyright is more vague and does not require immediate action?
Just a side note/addendum, I worked with entertainment lawyers A LOT in the early days of the web on copyrighted images and while they start from a rigorous position what one simply has to do is find out what the guidelines are that alleviate any issues. For example, with an image or a video clip it often only requires explicit attribution (so every image at the bottom must carry the legal/copyright line, and likewise with a video clip) to satisfy the lawyers. They almost never tell you that, though. That's a tip for YouTubers who get copystruck for movie clips. Run the copyright/legal line at the bottom of every clip while they are on screen and you are covered 99% of the time. That's why when you watch the news and they show a clip you see the line at the bottom of the clip. They know what the legal requirements are.
Your two responses in this thread are awful: awfully confident while awfully misinformed. Even calling them misleading would be an understatement. You are spreading outright bad information here. Please stop.
Copyright protections are important. Just how many of those artists would have created their works if they knew that decades after their death an average of one researcher of a month might access a digital copy of the work for free? It completely ruins the incentive structure! Might as well become a fry cook instead.
Thankfully we have record companies acting in good faith to recoup that gulp 400 million in potential lost revenue on behalf of those long-dead artists and their deserving kin.
But the hedge fund that owns the record company that will own the rights to your song won’t earn any money! How can you live with that future moral tragedy after you die?
Copyright is meant to serve the public. This is done by incentivizing artists and corporations but the goal is to promote creation so that the populace ultimately benefits. If this isn't assumed, then you assume government should not work for the people.
By doing something that's technically illegal but antithetical to the spirit of public good, IA is highlighting how perverted copyright law has become.
You want people to refrain from criticizing record companies greed but there's a clear argument that highlights this as the main motivation. Artists who own their own copyrighted works sometimes buy up old media of themselves and refuse to license it for fear of impacting the image they've created for themselves (or just because they're embarrassed). Very much different from this scenario, record companies are preventing use in a way that looks like extortion.
In my view, it's not that there isn't an argument to made that this is an illegal act, it's that there's a deeper question of whether it should be. Sometimes new laws are changed by breaking them.
This is a little meta but: it's great how you predicted a possible unproductive line of discussion that might result from your question and headed it off with a clarification. Props for communications skills.
I'm also a little sad that this disclaimer is even needed. I think it says something about how the character of HN has changed in the last ten years--there's no longer an assumption that the people on the other end of the wire assume curiosity and good will. There's a lot more heat here these days.
Thanks for that. I tried, yet still there are comment responses that literally do the exact thing I think is so annoying: complain sarcastically that copyright is stupid because it obviously isn't incentivizing the original artists here. No shit, we know.
But whatever, those comments get pushed to the bottom, and I thought the top responses were really helpful (I didn't previously know about the details of the fair use tests).
For some additional context, the copyright laws in the US make a very specific exception for archival[1].
>(a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
>(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Note that "computer program" here is in reference to any and all forms of digital data thereof. The digital copies made from the records concerned are "computer programs".
Sony, et al. allege that Internet Archive's public redistribution of their digital copies of the records do not fall under the archival exception.
If all Internet Archive does really is just archiving, none of the rightsholders would have standing to sue or otherwise get in their way.
> Sony, et al. allege that Internet Archive's public redistribution of their digital copies of the records do not fall under the archival exception.
Seems pretty obvious to me that, just with respect to the archival exception, that Sony et al is correct here. The issue is not with IA making backup copies of these works - the issue is with making copies and making them available for free over the Internet that is the issue at hand.
What should the M.O. of an archive be, then? Paid access? That would be an even worse offense! Zero access except for the person who created the archive? That makes no sense either. The archivist needs to vet potential accessors for certain motives? Only offer access to small samples?
No, in that case you need permissions or licensing from the rightsholders to resell or otherwise profit en masse from their work.
>Zero access except for the person who created the archive?
This is, fundamentally, what archiving something means. It is legal for someone to rip a music CD that they own for archival purposes, but it is illegal to share the resulting archives.
>The archivist needs to vet potential accessors for certain motives?
One facet of fair use is whether the use is for academical, educational, or other non-profit purposes. So yes, the archivist needs to vet potential accessors for certain motives.
>Only offer access to small samples?
Another facet of fair use is that only the minimum portion required from a given work is used for a given purpose under fair use. For example, quoting certain passages and only those passages in a book to discuss them in a review or critique, etc.
> This is, fundamentally, what archiving something means.
I completely disagree, you can't separate archiving from the accessibility of the content, the whole point of why you are archiving something is to make sure it's not lost and future generations can still access it in the first place!
I highly suggest making liberal use of the flag feature.
Boring, flamey, predictable activist/political content has absolutely no place on HN.
Your prediction was on point, but we shouldn't have to head off these extremely repetitive and unproductive tangents every time - they should be flagged and downvoted into the ground so that they stop coming up in the first place.
Maybe because the average understanding of how our society is run, with things like morals, fairness and hope for the future, and the legal understanding of how our society is run has diverged.
And maybe people are getting sick and tired (and banned and flagged) of "good natured discourse" being entirely windowed by the latter.
It's arguably always been like that. The Internet's audience (on average) has simply grown up to an age where they start to care about that more.
>maybe people are getting sick and tired (and banned and flagged) of "good natured discourse" being entirely windowed by the latter.
I know it feels cathartic, but "record company bad" is neither discourse, nor particularly good natured. It's more reflective of how forums have shifted by twitter's popularity into being "microblogs". You don't really talk "to" people on Twitter, you throw out your tweet among a sea of tweets.
A shame, because I hate twitter precisely because of that.
dang does a pretty good job of not banning people who are avoiding breaking the HN guidelines, and most of flagged content is political stuff not appropriate for HN.
I think I've spent too much time on reddit, because in comparison all the comments here seem quite reasoned, calm, and insightful. And then there's YouTube, and comments on news sites... I guess it's all relative.
I don't know. I've been here since 2016 and discussion is pretty great. No one bears ill will towards GP, people are only guilty of agreeing with him too aggressively.
I really hate copyright and have engaged in heated discussions about the matter here before but still refrained from replying to GP because I realized I too would like to know what legal arguments could be used to defend Internet Archive.
It's difficult to be curious about copyright. For many of us that matter is already settled and only strong opinions remain. This post still managed to make me curious though. It's great.
>I think it says something about how the character of HN has changed in the last ten years--there's no longer an assumption that the people on the other end of the wire assume curiosity and good will.
The internet as a whole has diverged from assuming good faith, between polarizing politics, the rapid increase of bots, and general shift of popular sentiment over the decade. And there's also a lot more people online, so it's much harder to moderate for that even if you wanted to.
It's an inevitability since this site's moderation hasn't scaled with its user base.
Right, there's a scale problem, among other things.
I want the invite-only system of Lobsters, with the actually good moderation of HN. I think that would help with some of the issues, here and on other platforms.
> In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
> 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
> 2. the nature of the copyrighted work;
> 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
> 4. the effect of the use upon the potential market for or value of the copyrighted work.
So, everything in the article is relevant to 1, 2, and 4. In fact, besides element 3, to me this usage strongly matches each of these criterion. Fair use is interpretable, though, so the outcome of the case if it goes to trial will be dependent on the judge.
Just to present a counterpoint, I can see a range of fair use exceptions that IA could argue, these largely align with the educational exceptions present in US copyright law.
What's working in their favour:
1. The intended use of the copyrighted work. The recordings are not pristine, culturally important, and have limited commercial consumption potential in their available form.
2. Nature of the copyrighted work, i.e. Is the use to further creative expression(yes) or consumption(no). IA's own access statistics and duration of the project can strengthen this point.
3. Potential market/value of the copyrighted work: This will play significantly in their favour as the records are dated, rarely sold and not pristine/remastered.
What isn't working in their favour:
1. Unvetted self-serve distribution over the Internet: However this case is an excellent opportunity to extend the face-to-face education exception to self-serve online educational resources. This would be a reasonable modernisation of the clause, and would still provide a clear boundary between the education and commercial use purposes.
I guess the main problem with the usual "they're a library" defense that IA usually gets to trot out is that their regular books usually are accessible under a lending system - that's to say, they manually digitize the books and don't let people read more copies than they have on file[0].
This system as I understand it doesn't apply to any of their non-book collections (not to mention it only applies to files that IA has uploaded themselves, the archive also accepts user submissions).
Fair Use is very unlikely to apply here I think. The fair use test looks in part at the question of how much of the copyrighted work is distributed (ie. A radio program promoting a song with a short jingle has a much more solid defense than others.) and "all of it" isn't a good defense. They could've put these recordings under their usual lending system, but they didn't and that probably makes them liable.[1]
For reference, I am not a lawyer, so if you think this is legal advice, go talk to an actual lawyer.
[0]: The ebook lawsuit they recently lost was because they disabled all lending restrictions for the pandemic, triggering the lawsuit. The lawsuit itself is ballooned with other crap because the usual nonsense from publishers is a thing, but the grounds for the lawsuit were unfortunately very solid.
[1]: That said, this lawsuit was probably triggered because the judge in the ebook case partially stripped IA of its library protections. The record companies probably are trying to arrange a similar removal of protections from IA, hence why this specific collection was targeted.
That is what struck me too after reading the article.
With the digital (and maybe Bigdata/ML) age, copyright protections need some revisions & broadened scope of "fair use". But digitizing and making media items available over internet face the arguments that piracy sites get accused of. IA is a respectable agency, and these media is from 50s & 60s. But the optics of it from legality remains the same unfortunately. I wouldn't also believe these having no commercial value. Among the collection, I found popular artists such as Louis Armstrong - who I still listen to over Spotify/Apple.
IA would probably cut some losses if they disable all streaming or only provide 30sec clips (as preview), while keeping the music archive more restricted. Not that I like this proposition, but if we are serious about preserving the legacy of 78rpm, some more consideration could be useful. Copyright laws in their current form is (unfortunately) unforgiving to IAs efforts in this context.
> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.
I worry that they're going to end up, as with Lessig, ending up in a case that creates terrible fucking case law that screws up copyright law even more than it already is. Like, if they win, it will be by making it impossible to enforce copyright for anyone who can't show substantial profit, zeroing copyright for anyone who isn't Oracle or Sony. Or they'll do such a shit job of defining what an archive or public interest or lending library looks like that they'll destroy the legal protections that libraries and archivists currently enjoy.
Because so many of those responses are just wholly uninteresting - they're just "basic" as the kids say (or used to say? I can't keep up anymore).
"Rich companies abuse copyright" - no shit.
"Copyright is unreasonably long" - no shit.
"It's absurd to think copyright needs to be that long to incentivize creation" - no shit.
Putting a sarcastic or "witty" spin on the above types of arguments still gets the same "no shit" response from me.
I have not read a single response of that form that I find interesting in the slightest, or adds new information, or makes an insightful point, and I wholeheartedly agree with the sentiment!
> Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards,
How else would you interpret their behavior though? They are hundreds of thousands of dead artists on this archive and they specifically attack the ones which made money.
The conclusion can only be that those record companies are just after the money, I don't see any other possible one from this behavior.
>How else would you interpret their behavior though
their goal isn't the analyze the company's intents. It's to understand what legal arguments IA has.The cards are dealt and the goal here isn't to change copyright law at large. At least, not at this stage.
Considering the low volume of downloads and that it is primarily for academic research, I think there’s a strong argument for fair use. I’ve seen so many great recordings completely disappear because some record company decided they might like to re-release something between now and the end of time (they usually don’t).
IANAL but there’s probably some fair use defense given that some may find value in studying the material and it probably doesn’t otherwise have market value.
Possibly because many of us recognize that the protections under GDPR are about reigning in dangerous corporate data usage, not about allowing people to curate their online image by scrubbing things they've previously made public.
There is a huge gap between "you shouldn't be able to use my data for things I did not consent to in order to commodify me" and, "I should be able to force people to get rid of any info about me that I don't want them to have, even if I made it public".
What happens when biotech enables effectively (or in practice, externally undetectable) seamless integration of artificial storage into the brain? When millions have perfect photographic memory, are they not allowed to recall the memorized account of personally acquired sensory experiences? If so, can the handful of individuals who can do so today, with no such technological enhancement, be sued for perfectly 'remembering' extensive details of someone's past public statements/actions since scrubbed from the internet? Does Alice's right to be forgotten override Bob's right to remember what she did / said?
Congratulations, I think you hit every tired cliche that the OP requested explicitly not to descend into
> Copyright expires after certain amount of years, depending on the country and the law?
Yes. In case you didn’t notice, this is specifically about a case in one country, for things that are still under copyright.
> it looks to me like you are an afforded troll by the company to spread out the company propaganda on the internet and social media sites. I can't tell for sure, I might be wrong, but that is how it looks to me.
No, it doesn’t look like this at all. You are egregiously wrong.
> you hit every tired cliche that the OP requested explicitly not to descend into
Op asked us to not tell him they are "greedy bastards", and he asks that because he knows they are. Op knows he is wrong for the obvious reasons and asks us to not see him as "wrong" and to close eyes and pretend those reasons just do not exist. It is just stupid.
> You are egregiously wrong.
Perhaps I am wrong, perhaps I am not. I have drawn my conclusion after reading all of the comments and seen all of his replies and link he posted, that is how I perceive them.
Non-profits essentially have to be the ones to push the limits of laws like this, because it's not profitable, so for-profit entities aren't going to do it. But someone has to do it or you can never get a precedent saying that something good is actually allowed.
The problem is the RIAA knows this, because they have expensive lawyers, and they try to avoid proceeding with a suit unless they think their victim has made a mistake. So you have to get close enough to the line to at least make them think that, but then there is the risk that the judge thinks that too. Yet what alternative is there?
And this is why public companies are worse than private ones. A public company exists to make the shareholders money. A private company exists to do whatever the owners want. And then, once in a while, one of them wants to do something good.
But sadly most major companies are public anymore.
> be the ones to push the limits of laws like this
I can think of a much more prudent way to do that, namely, by legally segregating their non-contentious archiving (the wayback machine et al) from their legally contentious archiving such that legal threats to one entity cannot disrupt the other entity.
Which would make them less sympathetic and imply that they think they're doing something illegitimate.
Also, the wayback machine is not a non-contentious thing. They're making copies of everything on the internet and then distributing them to the public. It's all content that was freely available to begin with, but as far as I know that has never been tested in court.
You think them saying 'we understand that the web archive is a valuable resource of data which isn't under legal attack, and to best serve the needs of the public we'll ring-fence that resource by spinning it off as a separate legal entity that won't be affected by any legal action that may be taken against us while we fight a (more) contentious battle' would result in less sympathy for them?
You're proposing that they separate their more sympathetic more traditional activities into a separate entity than their more contentious activities, so that the latter entity is engaged in only the more contentious activities. Is it not clear why that makes the latter entity less sympathetic and more likely to lose? Even the act of doing it would imply that they expect to lose.
> Is it not clear why that makes the latter entity less sympathetic and more likely to lose?
Yes, but that entity is clearly violating the law and is archiving material that is already (by definition) archived by somebody, just not publicly accessible. This strategy is about preserving the more valuable non-alternatively-archived data.
> Even the act of doing it would imply that they expect to lose.
They're clearly violating the law, they've lost already on a similar case, if they don't expect to lose they should fire their counsel.
> archiving material that is already (by definition) archived by somebody, just not publicly accessible.
How useful to the public is it to have it archived but not publicly accessible?
> They're clearly violating the law, they've lost already on a similar case
They're not clearly violating the law, they're doing something where the law isn't established (which is the point), and the other case is subject to appeal.
You have to host copyrighted work to make an archive, there's no other choice since the current copyright system swallowed the whole culture. The problem isn't them, it's the law.
So the conspiracy theorist in me believes they may see this archiving as a threat for their current copyrights. So often modern copyrights holders get their copyrights invalidated when trying to enforce and litigate against others by someone finding an older work that predates the more more recent one. The Happy Birthday song got invalidated by an older work of "Good Morning to All" [1]. Having this database out there, it won't take long for someone to fingerprint this music that hasn't ever been stored in a digital form to use to invalidate claims using newer music. A certain cord progression or beat or a creative lyric and rhyme long forgotten in this old music could endanger parts of their current music catalog.
> The Happy Birthday song got invalidated by an older work of "Good Morning to All" [1].
That's an incorrect rendition of the underlying facts. Happy Birthday was based on the tune of Good Morning to All, and this history was well known even when Warner was on a warpath demanding licensing fees for singing it. The invalidation instead arises from the fact that available evidence indicates that the words to Happy Birthday were not written by the Hill sisters and thus the song was never properly copyrighted.
> So the conspiracy theorist in me believes they may see this archiving as a threat for their current copyrights.
The media industry has had it out for the internet archive for a long time. I don't think they see this collection as a threat any larger than anything else the archive is offering. They've also been endlessly pushing for more and more control over the internet.
They've been largely successful getting ISPs to perform vast amounts of work for them entirely for free and without question. They can force ISPs to permanently disconnect users based on nothing but unproven accusations. ISPs who fail to cut their customers off from the internet risk an endless barrage of massive lawsuits. Courts have so been agreeing with the RIAA that this is acceptable.
They've been able to force ISPs in many countries to censor and block access to online content on demand based on nothing but their assurance that something is infringing. In the US they've had less success with content blocking and blacklists but they keep pushing and pushing.
It's insane how much power they've been able to get already, but they aren't satisfied. I see this attack on the internet archive as just another push for control over online media.
> A certain cord progression or beat or a creative lyric and rhyme long forgotten in this old music could endanger parts of their current music catalog.
The conspiracy theorist in me believes that this is actually a feature for them! Anyone who dares to make music without paying the cartel is forever at risk of having their works challenged for sounding too similar to something else. If you're a musician and don't want to pay up and hand your creative works over to the RIAA you'll be giving up the protection of RIAA lawyers.
Most of the other copyright owners who might sue you are also in the RIAA (or their international equivalents) which can make it easier to reach "an understanding" outside of the court system avoiding expensive lawsuits a struggling independent artist can't afford. The constant threat of having your songs challenged helps them operate as a protection racket and keeps independent artists in a very vulnerable position which drives up membership and discourages competition.
It’s certainly finite when you have ridiculous copyright claims over very trivial elements like chord progressions and short ostinatos. There’s also the element that composers, intentionally or not, borrow elements from earlier works all the time. I’d even argue that “remixing” is really the default state of affairs. I cannot name a single composer who hasn’t borrowed a melody from somewhere else. The only people that actually want complete originality are corporate lawyers.
It's interesting because it implies that music is finite. Or possibly that commercial music is finite - there's an infinitely long tail of weird shit that we don't want to listen to, but the stuff we do want to listen to is confined to a finite segment of possible music.
If so then eventually all music will be free, because it will be repeating a previous iteration of the same tune.
This also implies that music is discovered, not invented.
Do you mention the distinction between creation and discovery because it's a distinction in law? Cos it seems intuitively obvious to me that distinguishing between creation and discovery has no philosophical merit - creativity happens within many finite domains, the size of the problem domain really has little relevance to something's artistic value.
The exhausting of useful chords as you describe has both already happened and will never happen. There are countless songs already based on the most common chord progressions, but new ones will also continue to be found for the foreseeable future. We're nowhere near knowing the size of this domain.
I made a static page that points to the 78RPM collection, but it is more of a novelty than a real source of entertainment. Nobody would pay for these scratchy records! The content is here: https://www.locserendipity.com/PushPlay.html
The LPs from the Boston Public Library are a bit more interesting, but again none of this is going to even remotely compete with Spotify: https://locserendipity.com/LP.html
I do not host any of these, but just point to the URL at archive.org. Why can’t copyright holders use DMCA requests instead?
> Why can’t copyright holders use DMCA requests instead?
DMCA requests are only when you host a platform where others can upload content. As a platform owner, if you take the content down, you won't be held liable for copyright infringement. But the original uploader definitely still can be! In this case, IA is the uploader.
The form in which the websites were made available originally. They were public, so its more than fair to store a copy. It would be different if they were archiving content hidden behind a paywall or bypassing login, etc.
Other media and books have a more restrictive implied license of access and reproduction.
I think the RIAA's gonna lose actually. The media being archived isn't being used at large as a way to circumvent IP. I think we'll see a fairuse conclusion but not without some damage along the way - I suspect bits and pieces of IA will have to be removed.
If there's copyrighted material on the Archive you find valuable, download and save it now before it's the target of the next lawsuit. I expect it won't be long before you can't get old magazines or other nostalgic and niche material. This is exactly what we all said would happen when the IA gave a giant "Fuck You!" to copyright holders with the Emergency Library. The era of copyright holders ignoring the IA if they're not actively making money off the material is officially over.
The IA managed for years to cruise under the radar by mostly hosting things no publisher or label cared about and removing it if someone did care. But now that the ant’s nest is kicked up it’s easy to imagine a lot of things are now seen as fair game.
It would seem prudent for them to partition their business into two separate entities - one which handles non-contentious archiving (the wayback machine, etc) and another one which handles the stuff which seems to attract repeated lawsuits.
> The web archive alone is about 45 petabytes — 4,500 terabytes — and the Internet Archive itself is about double that size (the group has other collections, like a huge database of educational films, music and even long-gone software programs).
Yeah, the NEL will probably go down as one of the dumbest decisions in Internet history. The IA got away with a lot of stuff and then just decided throwing out all semblance of copyright credibility was the right call, for some reason. That's a cat they can't put back in the bag either, as long as the same people are running the show there's no reason to believe the IA won't do future stunts either.
It wasn't like IA people woke up one day and decided to give publishers the middle finger because they felt like it. Trump had declared a national emergency due to COVID-19, under the guise of which Biden later tried to forgive hundreds of billions of dollars of student loans because he felt like it. Libraries were shut down and inaccessible to a lot of people during pandemic lockdowns. The NEL involved loaning people DRM'd books, not giving them out without controls. NEL also offered an email address copyright holders could contact to remove their content from the NEL; granted, visibility into that process wasn't great, but if you're a publisher or make a living as a self-published author and you aren't keeping tabs on major book-related news, isn't that on you?
IA's lending library is made up of scans. No casual reader wants to read scanned digital books.
I don't know what overtures were made to the publishers who ended up suing in part over the NEL (the lawsuits were more over digital lending of format-shifted works not specific to the NEL), but IA didn't try to blindside publishers in general. They had extensive dialogue with university presses, documented here:
https://blog.archive.org/2020/04/27/forging-a-cooperative-pa...
if you're a publisher or make a living as a self-published author and you aren't keeping tabs on major book-related news, isn't that on you?
Most people would think they don't have to worry about it because there are these things called laws that say you can't make unlimited copies of copyrighted material. Which is what the IA did, independent of the fact they didn't allow their users to also make unlimited copies.
Don't get me wrong, I hate the very concept of intellectual property. But there are right and wrong people to engage in political activism through flagrant lawbreaking and the thirty year old forty million dollar nonprofit is the wrong frickin' person. Being morally justified doesn't make it not apocalyptically stupid and now the stupendously obvious result is happening and I don't even feel bad anymore.
It's ok. They did the right thing, and continue to do so even without your approval or sympathy. You can move on with your life, they will continue to fight the good fight as they always have.
If that was guaranteed I'd be more than happy. But it isn't, because their foolish actions have endangered the existence of the Archive. These first two lawsuits are just the beginning. There's blood in the water now.
If they are going to continue this weird strategy of tanking lawsuits that any competent counsel would advise they're going to lose, they should split off the more-irreplaceable and more frequently used part of the archive (that is, the web archive) into a separate legal entity, so that attacks on one don't endanger the other.
As you seem concerned about the existence of the archive being endangered I presume you agree.
Oh certainly, if IA wants to split off an independent entity for bulldog IP freedom advocacy I'll open my wallet right now. But putting all the legal and semi-legal content I care about at risk because you want to swing around a big freedom dick doesn't make you a hero; it makes you a jackass.
> That's a cat they can't put back in the bag either
Trivial fix here - split off the non-contentious archiving (the web archive / wayback machine) into a separate legal entity from the contentious archiving.
That preserves the more-irreplaceable material (the web archive.)
>I expect it won't be long before you can't get old magazines or other nostalgic and niche material.
I will point out that the Internet Archive is among the foremost source of warez[1] today.
Being brutally honest, what Internet Archive is doing these days isn't archiving or academic fair use anymore. They are flagrantly violating copyright, or enabling violations of copyright, and that is straight up not okay.
As an aside, do not be fooled into thinking all those ISOs[1] were provided by the rightsholders. They were not, even if they seem so at first glance. I would say the way they present the information is disingenuous at best, deliberate obfuscation at worst.
Yeah, and if you read the ruling in the controlled digital lending case, it was a mess. IA wasn't making sure the print copy came off the shelf, and they were linking to their own site (BWB) to sell copies of the book. Not a well built case to take to court.
Isn't linking to a place to buy a licensed copy an argument in favor? It implies that they sincerely believe that the "free download" doesn't hurt the market for the book, given that they expect people to still be willing to pay for it.
And not making sure the book is removed from the self seems kind of irrelevant when the book is on a shelf in a closed library where nobody can borrow it anyway. Are we really supposed to believe that the number of copies they lent out during COVID exceeded the number of copies locked up in libraries everywhere?
If I put up a copyrighted work and link from that work to my own company to buy a copy, that is not going to look very good in court. It also undermines my claimed altruistic reasons. Linking to the publisher site or even Amazon to purchase would have been better to show increasing marketshare.
Ignore the covid emergency library. The entire CDL was never setup to do what was claimed. Libraries uploaded their holdings list, the books were made available digitally, and nothing was done to verify the books came off the shelf when a digital copy was checked out. The emergency library simply pushed publishers to stop looking the other way.
What IA did here actually hurt possibility of CDL or an interesting court case challenging various pieces of copyright.
> If I put up a copyrighted work and link from that work to my own company to buy a copy, that is not going to look very good in court. It also undermines my claimed altruistic reasons.
How is a free copy less altruistic when you also provide one for sale? Does the free copy make it more likely to buy the paid one? What would it imply about the alleged damages to the copyright holder if that were true?
> Libraries uploaded their holdings list, the books were made available digitally, and nothing was done to verify the books came off the shelf when a digital copy was checked out.
Wasn't this the difference between CDL and the emergency library?
And the argument for the latter is presumably something like this: They could go contact every closed library and inventory their books, but the emergency is happening right now and in many cases contacting them has high latency or isn't possible because they're closed, so they're going to temporarily guestimate that there are more books in libraries everywhere than they're lending out. Which isn't a bad guess, and if they went over by a slim margin in some specific case, it's a trivial amount of harm that only occurs during a temporary emergency, i.e. the effect of that on the market for the book is negligible.
The first is I'm now trying to profit from someone else's copyrighted work. That's always going to be an issue.
For the later, read the judges ruling. The EL was not the issue, but what came out is that the CDL was never what they claimed. By being so cavalier they ruined what could have been a great test case.
> The first is I'm now trying to profit from someone else's copyrighted work. That's always going to be an issue.
It's an authorized copy. Is Amazon in trouble because they sell used books, i.e. are trying to profit from someone else's copyrighted work?
Doesn't the copyright holder also profit from selling the used books, by taking them off the market so the next customer has to buy a new one?
> The EL was not the issue, but what came out is that the CDL was never what they claimed. By being so cavalier they ruined what could have been a great test case.
It seems clear that the judge in that case was intent on finding against the Internet Archive, and explicitly stated that they wouldn't have been allowed to win regardless:
> Even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA’s reproduction of the Works in Suit.
See also concluding that the use wasn't non-commercial despite being a non-profit who didn't charge for it, because members of the public might have liked that they did this and made a donation. Which likewise moots the implications of them selling used books (as they're indisputably allowed to do), because the next excuse was already lined up.
One wonders how a use could ever be non-commercial under this line of reasoning.
Most record players don't even play 78's. I had to go out and buy some borderline novelty player to play a few Soviet 78's.
The whole point of copyright is it's a limited time monopoly that must end at a reasonable time, at which point works fall into the public domain.
The problem is sheet music, music recording, likenesses, photography, and written works all have radically different interpretations of this, or have sometimes become perpetual due to corporate $$$ lobbying.
PS: Fuck the RIAA. They're risking the preservation and archival of human art for all time at the behest of a few big money corporations.
The IA is risking all the work they’ve done so far.
If they want to archive copyrighted material, they should do it and sit on it until the copyright expires. If the hope is that the archive is around 1000 years from now, then what’s the rush to release these 78’s right now?
Also, they could have program where researchers register and then login to access the content. That would go a long way towards supporting scholarship fair use. They wouldn't even have to be strict about joining especially for something niche like this.
But, also, what makes someone a researcher? Do you have to forcefully be affiliated to a University, a Newspaper, or similar institution? Then the world would be missing out on work done by independent researchers, journalists, etc.
Exactly! This is entirely on the IA for refusing to recognize they don't have the inherent right to violate copyright at their leisure. The reason they will keep getting into this is because they keep insisting they aren't doing anything wrong.
If preservation of unprofitable content is the goal, sit down with the lawyers and hammer out conditions under which the IA can be given permission to preserve content. A good negotiator can probably even get record labels to pay for it if they think they're getting a copyright win.
The IA doesn't respect copyright to a fault and it shows and they're going to keep losing as long as they believe they're entitled to ignore it.
Content is not necessarily preserved for the good of humanity of no one alive today is likely to access it during the productive years of their life. Who knows what the future holds legally, politically, or more broadly.
Whether they are likely to win or lose, IA is fighting the good fight on behalf of humanity. They are entitled to fight that fight, regardless of whether you think they should shrink back and stay in some arbitrary lane that copyright lawyers decide is financially irrelevant.
Really? I don't know turntables, but I feel like every DJ wants a Technics one. The first several I looked at on their website play 33 1/3s, 45s, and 78s.
DJ turntables like Technics have selectable speeds but are also insanely expensive. Lots of modern belt-driven players marketed towards audiophile hipsters don't even spin at 45 RPM (which is fine because the 7" records being pressed now mostly are often 33RPM anyways)
If only they could finally get their donation box working properly. Every time I try, it fails me. I do not remember what went wrong last time, but it somehow never works for me. I remember, than at some point it did not let me type in the card field or did not check the card number. I wonder how much in donations they already lost this way.
I really want to know if the record labels tried a DMCA takedown request. Normally IA follows those, I can't determine if one was sent and the IA ignored for some reason or if the record labels purposely chose a different manner of attack.
One of the stories mentioned something about an ignored cease and desist, but that seems like a separate thing.
A DMCA takedown is a tool for a very specific situation, where a small-time, difficult-to-identify, near-anonymous user uploads copyrighted content to a third-party, big-time, easy-to-identify host. The copyright owner would prefer to sue the original uploader, but suing the host is a lot easier, so the host is strongly encouraged to obey the DMCA takedown as quickly as possible.
In this case, the uploads were done by the Internet Archive itself, not by a near-anonymous user. So there's no point to sending a DMCA takedown - the copyright owner already knows the identity of the original uploader, they're easy-to-identify and they have money to pay damages. Therefore, they're just suing the IA directly.
A PDF of the lawsuit was provided by Torrentfreak, linked below[1].
In it, Sony, et al. state on pages 13 and 14 that Internet Archive failed to take necessary actions and file required paperwork with the US Copyright Office as required under the Music Modernization Act.
The DMCA is never mentioned in the suit, so I presume no DMCA takedown requests were sent.
Thanks. Then to me, this lawsuit is primarily about attacking the IA. If they were actually concerned about their songs being pirated, they would try the easy way known to work.
Please read the linked PDF for a proper understanding of the context. You said you "want to know", so I presume knowing the circumstances of what transpired are important to you.
Specifically, the suit alleges that Internet Archive failed to take the steps necessary for them to enjoy a safe harbor provided by the Music Modernization Act. In failing to take those steps, the Internet Archive failed to give the rightsholders (Sony, et al.) an opportunity to either permit or prohibit Internet Archive the digital copying and redistribution of the records in question.
That, plus the indiscriminate redistribution of the digital copies and soliciting monetary donations with those copies, all together are the arguments Sony, et al. are bringing forth for their copyright being violated.
I had skimmed it when the torrentfreak article was posted, I didn't notice any mention of a DMCA claim in it but as I had skimmed it I wasn't confident.
Whether they sent a DMCA takedown request is what I see as key, not what reason they can give for not sending one. If their concern was piracy, they would take the cheap and easy option. This means they picked this battle, not the IA.
People are obviously saying "DMCA takedown request" when they mean "generic takedown request" and arguing about whether the DMCA is the kind of takedown request to make in this case is missing the point.
If they don't want it there, did they ask to have it removed before going to court, or did they do the thing vexatious jerks do?
As stated in the lawsuit, Sony, et al. filed their side of the required paperwork under the Music Modernization Act with the US Copyright Office. Internet Archive meanwhile failed to do so, and in failing to do so did not give Sony, et al. an opportunity to give or withhold permissions as the rightsholders.
So this lawsuit, to me, seems like a fair thing to do. Sony, et al. were never given an opportunity to respond due to either negligence or malice from Internet Archive, so they filed suit.
But none of that really addresses the point, it's just another example of a law they couldn't use for some reason. You don't need any specific law to try negotiating with someone before you file a lawsuit.
Isn't vinyl the most popular physical medium by sales right now? Sure, 78s aren't as supported, but the first Technics turntable I clicked on can play them, and the Wirecutter has a recommendation that plays them. "Obsolete" is a stretch.
Techmoan has a video where he explains and shows that reading 78s with a microgroove head gives very bad results, low sound, high noise, and no bass. It's a workaround, not a workable solution; you need a special 78RPM head which exist but are rare and expensive.
Basically the technical reason is that the 33/45 record groove is read laterally, while the 78 groove is read vertically. So both cannot be properly achieved with the same reading apparatus.
Shellac records need different replaceable needles, because fine pieces of grit are embedded in the record to harden it and wear down the needle. Needed because the tracking force was so high back in the day.
Modern records use a so-called "microgroove", usually crystal needles in the cassette, and one or so grams of tracking force. You probably wouldn't pick anything up off a shellac record, if you tried playing it.
I'm surprised they haven't been sued for hosting ROMs for old games. They are the best place on the web to download. Does anyone know if they've had issues with publishers yet?
AFAIK those are users-uploaded contents and can be removed when someone sent a valid takedown request. On the other hand, the Great 78 Project is officially run by the Internet Archive themselves, which makes them the target of the legal action.
Why do we always defer to these copyright mongers? They're so absurd.
Ah yes, preventing the listening of "Tip Toe Thru' The Tulips With Me" by Bert Ambrose & his Orchestra is a pressing national priority.
Oh, the national economy will collapse if someone can hear "I Lift Up My Finger & I Say Tweet Tweet" by Stanley Lupino.
I found their "sacred rights" implausible when the RIAA was hauling grannies into prison 20 years ago or suing babies and dead people and I'm still not convinced today.
Why do we have to continue to put up with this crap? It's like the SCO/Linux bullshit but it never ended. I really wish things were less insane. This is so stupid.
There needs to be attorney crowd funding so the 99% can have legal representation and not continue to get trampled by these lunatic clowns
By the way, can I also trademark the letter "I"? Everyone using "I" will have to get my approval first. Everyone who wants to own a letter should hurry, they are just a few left.
I blame Metallica. Particularly Lars. I don't know if he's more or less responsible than any of the other guys in the band, but in my heart he's the source of the enshittifying evil. The derelict that brought the xenomorph. The meteor that brought the color out of space. The cow with prion disease.
"They have monopolized everything that it is possible to monopolize; they have got the whole earth, the minerals in the earth and the streams that water the earth. The only reason they have not monopolized the daylight and the air is that it is not possible to do it.
If it were possible to construct huge gasometers and to draw together and compress within them the whole of the atmosphere, it would have been done long ago, and we should have been compelled to work for them in order to get money to buy air to breathe. And if that seemingly impossible thing were accomplished tomorrow, you would see thousands of people dying for want of air – or of the money to buy it – even as now thousands are dying for want of the other necessities of life.
You would see people going about gasping for breath, and telling each other that the likes of them could not expect to have air to breathe unless the had the money to pay for it. Most of you here, for instance, would think and say so. Even as you think at present that it’s right for so few people to own the Earth, the Minerals and the Water, which are all just as necessary as is the air. In exactly the same spirit as you now say: “It’s Their Land,” “It’s Their Water,” “It’s Their Coal,” “It’s Their Iron,” so you would say “It’s Their Air,” “These are their gasometers, and what right have the likes of us to expect them to allow us to breathe for nothing?”
And even while he is doing this the air monopolist will be preaching sermons on the Brotherhood of Man; he will be dispensing advice on “Christian Duty” in the Sunday magazines; he will give utterance to numerous more or less moral maxims for the guidance of the young. And meantime, all around, people will be dying for want of some of the air that he will have bottled up in his gasometers.
And when you are all dragging out a miserable existence, gasping for breath or dying for want of air, if one of your number suggests smashing a hole in the side of one of th gasometers, you will all fall upon him in the name of law and order, and after doing your best to tear him limb from limb, you’ll drag him, covered with blood, in triumph to the nearest Police Station and deliver him up to “justice” in the hope of being given a few half-pounds of air for your trouble.’
Robert Tressell, The Ragged-Trousered Philathropists (1914) | Ch 15
Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards, or how the IA is doing great work, or how copyright protection has strayed from its original goals of encouraging innovative new works to become a victim of rent-seeking behavior, or that the law itself is unjust here. All of that I wholeheartedly agree with. I'm not a lawyer, and I'm just interested in trying to understand if they have any legal defense that isn't going to get laughed out of court.