Why Are 300 Musicians Fighting an Effort to Protect Copyright?

Here we go again.

On Dec. 9, the technology activist group Fight for the Future announced that 300 musicians signed an open letter denouncing the lawsuit that labels filed against the Internet Archive for copying and offering free streams of old recordings under its “Great 78” project. The letter essentially says that labels need to focus less on profit and more on supporting creators, by raising streaming service royalty rates — and partnering with “valuable cultural stewards” like the Internet Archive.

This is exactly and entirely backward. Labels have to focus on making money — they’re companies, duh — and they are always trying to raise streaming royalties in a way that would help them, as well as artists. It would help if streaming services raised prices, which they would have an easier time doing if less unlicensed music was available for free on both for-profit pirate sites and services like the Internet Archive. And one of the worst possible groups to offer advice on such matters is Fight for the Future, which has consistently opposed the kind of copyright protection that lets creators control the availability of their work.

Most people think of the Internet Archive, if they think of it at all, as the nonprofit organization that runs the Wayback Machine, which maintains a searchable archive of past and present Internet sites. But it also preserves and makes available other media — sometimes in ways that push the boundaries of copyright. After the label lawsuit against the Internet Archive was shifted to alternative dispute resolution in late July, an appeals court affirmed book publishers’ victory in their lawsuit against the organization for making electronic copies of books available without a license under the self-styled concept of “controlled digital lending.” On Dec. 4, the deadline passed for the Internet Archive to file a cert petition with the Supreme Court, making that decision final.

It sometimes seems that part of the purpose of the Internet Archive, which was founded in 1996 by technology activist Brewster Kahle, is to push the boundaries of copyright. In 2006, Kahle sued the government for changing the copyright system from opt-in to opt-out. (His side lost in the Ninth Circuit Court of Appeals.) Later, the Internet Archive began buying and scanning books and distributing digital files of the contents on a temporary basis, according to how many copies of the volume the organization owned. (The digital copies became unusable after a certain amount of time.) During the pandemic, it launched a “National Emergency Library” and announced it would begin lending out more digital copies than the number of physical copies of books it owned. Two months later, three major publishers and one other sued, arguing that this controlled digital lending — a theoretical model that’s not recognized in U.S. law — infringed copyright.

The Internet Archive argued that it was a library and that its digital lending qualified as “transformative use,” an aspect of the fair use exception to copyright law that in some cases allows copyrighted works to be used for a different purpose. (The thumbnail images seen in search engine results qualify as a transformative use, for example, since they are used to help users find the images themselves.) The copyright exceptions for libraries and archives are very specific, though, and it’s hard to imagine how borrowed digital copies of books are so different from the digital books that have become an increasingly important part of the publishing business. The Second Circuit Appeals Court treated the dispute as a straight fair use case — it barely mentioned the National Emergency Library — and ruled for the publishers.

“Fair use is an important part of the law, and no one would disagree,” says Maria Pallante, president and CEO of the Association of American Publishers, the trade group that handled the lawsuit. “But this this was a gross distortion of fair use — they wanted to normalize that it’s OK to reproduce millions of works.”

The label lawsuit — Sony Music, Universal Music Group and Concord sued under the auspices of the RIAA — could end up being just as straightforward. (Kahle is also personally named in the lawsuit, along with other entities.) The Great 78 Project makes 400,000 recordings digitized from 78 rpm records available to stream online. The idea is to “make this less commonly available music accessible to researchers,” according to the project’s web site.

The reality, the labels’ lawsuit alleges, is that among the recordings available are Bing Crosby’s “White Christmas,” Chuck Berry’s “Roll Over Beethoven” and Duke Ellington’s “It Don’t Mean a Thing (If It Ain’t Got That Swing),” all of which have considerable commercial life on streaming services. “The Internet Archive’s ‘Great 78’ project is a smokescreen for industrial-scale copyright infringement of some of the most iconic recordings ever made,” RIAA chief legal officer Ken Doroshow said in a statement. The Internet Archive did not respond to a request for comment.

The Internet Archive seems to be appealing both of these cases to magazines, making the case that the $621 million RIAA lawsuit threatens “the web’s collective memory” (Wired) and the “soul of the Internet” (Rolling Stone). Maybe. But neither book publishers nor labels object to the Internet Archive’s actual archive of the actual Internet. In both pieces, Kahle positions himself as a librarian and a preservationist, never mind that “White Christmas” doesn’t need preserving and that the Music Modernization Act has a provision that allows libraries to offer certain unavailable pre-1972 recordings if they follow a process. (The labels’ complaint says the organization didn’t do this; Kahle told Rolling Stone that “we talked to people, it wasn’t a problem.”) The fact that some of the recordings are scratchy, which Kahle and his allies make much of, is legally beside the point.

It’s reasonable to hope that the labels don’t put the Internet Archive out of business, because the Wayback Machine is so valuable. But it’s also reasonable to wonder why Kahle let the Internet Archive take such big legal risks in the first place. If the Wayback Machine is so important, why distribute books and music in a way that could be found to infringe copyright, with the enormous statutory damages that come with that? Unless, of course, that’s actually part of the organization’s work in the first place.

Some of these issues can get pretty abstract, but the way they’re settled could have serious consequences in the years to come. If one wanted to assemble a collection of scanned books in order to train an artificial intelligence, one might go about it in exactly the way Kahle did. Same goes for old recordings. Indeed, artificial intelligence companies are already arguing that mass copying of media doesn’t infringe copyright because it qualifies as “transformative,” and thus as fair use. There is no evidence that the Internet Archive copied books and recordings for this reason, but it’s certainly possible that the organization might have wanted to set precedents to make it easier for AI companies to argue that they use copyrighted work for training purposes compensating rightsholders.

The letter from Fight for the Future points out that “the music industry cannot survive without musicians.” But there’s a chance that the kind of large-scale copying of music that it’s convincing musicians to defend could represent a first step toward the technology business doing exactly that.