A 78-RPM vinyl record featuring a rendition of ‘Jingle Bells’ by Stanley Fritts and The Korn Kobblers, one of the many works available in digital via the Great 78 Project. Photo Credit: Mick Haupt

Last August, the major labels submitted a $400 million lawsuit, centering on alleged copyright infringement committed through the “Great 78 Project,” against the Internet Archive. Now, the self-described non-profit research library has fired back against the complaint.

Spanning north of 50 pages, the rightsholder plaintiffs’ initial action (filed in New York but transferred to a California federal court in December) named as defendants the Internet Archive itself, chief executive Brewster Kahle, Kahle’s foundation, audio engineer George Blood, and Blood’s company.

Meanwhile, the Archive’s Great 78 Project, as its name suggests, is designed to facilitate “the preservation, research and discovery of 78rpm records,” according to the appropriate website. At present, over 400,000 recordings are said to be available to stream and, if one’s so inclined, download via the Great 78 Project.

While the sizable library seems to feature a number of obscure works, it also contains protected tracks performed by the likes of Frank Sinatra, Bing Crosby, and Ella Fitzgerald, the majors maintain.

And per these companies, the defendants are facilitating the “wholesale theft of generations of music under the guise of ‘preservation and research’” via the Great 78 Project, complete with activities that “far exceed those limited purposes.”

Predictably, the Internet Archive and the other defendants don’t feel the same way, describing the suit as an effort “to condemn a technological initiative to preserve a fast-disappearing part of this country’s cultural heritage,” or “the sounds of 78 rpm records,” individual copies of which “tend to disintegrate over time.”

Interestingly, the defendants’ newly filed motion to dismiss only scratches the surface of an argument that the Great 78 Project’s activities constitute fair use – “patrons’ streaming of archival versions of 78 rpm records is generally for education and for cultural and historical research… Such use is quintessentially ‘fair’ and non-infringing.”

Instead, the dismissal motion zeroes in on allegedly time-barred elements of the lawsuit, referring to claims allegedly blocked under the Copyright Act’s three-year statute of limitations (as interpreted through the comparatively open-ended “discovery rule,” meaning the period from when one discovered or should have discovered the purported infringement, that is).

Consequently, that the RIAA sent a detailed cease-and-desist letter to the Internet Archive over the Great 78 Project back in July of 2020 before taking legal action in August of 2023 should block “a substantial swath of alleged instances of direct infringement,” per the defendants.

“While it’s true that dismissal of claims premised on alleged infringement that took place before August 11, 2020, will not resolve the case entirely, dismissal at this juncture will have a significant and beneficial narrowing effect on the scope of this case,” the Internet Archive spelled out of its position.

In other industry infringement litigation news, Irving Azoff’s Global Music Rights earlier in January levied a complaint against Vermont Broadcast Associates, and Ice Spice is fending off a suit revolving around “In Ha Mood.”