The Internet Archive reveals: the 'Vinyl' record company copyright lawsuit is too late! Find out why!

Internet Archive Foundation

Founded in 1996 Internet Archive has built up an unrivalled library of digital artifacts in less than three decades.

Many people are familiar with the Wayback Machine website archiving project, but the non-profit organization also runs a number of other preservation projects.

These meticulous archiving skills are an essential part of the digital history books being "written" today. However, good intentions are not immune from copyright infringement claims, or worse, multi-million dollar lawsuits.

The Great 78 Project

Six years ago, the Archive teamed up with other libraries and experts to archive the sounds of today's obsolete 78 rpm vinyl records. As well as capturing their unique audio, including crackles and hisses, this saves unique recordings for future generations before the vinyl disintegrates.

The "Great 78 Project" received praise from curators, historians and music fans alike. However, not everyone in the music industry was satisfied, as the copy was made without obtaining permission from all rights holders.

Complaint filed by major record companies

Last summer, a group of major record companies, including Capitol, Sony and UMG, decided to take action. In a complaint filed in U.S. federal court, they sued the Internet Archive, its founder Brewster Kale and others they deemed responsible.

"When defendants exploit plaintiffs' sound recordings without authorization, neither the plaintiffs nor their artists get a cent. This not only harms the plaintiffs and the artists or their heirs by depriving them of remuneration, it also devalues the music," the record companies wrote.

With 2,749 registrations at stake, potential damages could reach over $400 million. However, the Internet Archive (IA) sees things differently, and believes that the "Great 78 Project" falls within the scope of fair use.

AI files motion to dismiss complaint

Filed a few days ago, the AI's motion to dismiss the complaint emphasizes the importance of archiving these old recordings, some of which date back to the late 19th century. These records have been obsolete since the 1950s, but that doesn't mean their sounds have to be lost forever, IA argues.

"The specific quality of the sound, including the crackles and other peculiar imperfections that are the hallmark of this antiquated medium, has been an integral part of American culture for many decades," says the motion.

"However, physical recordings tend to disintegrate over time, and as the complete set of these old records gradually becomes unusable, their unique contribution to our history is on the way to oblivion."

The RIAA's cease and desist letter

U.S. copyright law provides for a three-year statute of limitations. This means that, once concrete copyright infringements have been discovered, legal action must be taken within this time window. That didn't happen here, according to AI.

The RIAA letter didn't mention any specific recordings, but referred to artists such as Elvis Presley, Duke Ellington and Billie Holiday. It also referred to AI as a platform for large-scale piracy, mentioning "thousands" of recordings.

"While the Internet Archive is rife with counterfeit copies of sound recordings, the most egregious example of this infringement is the 'Great 78 Project'," the RIAA wrote in its letter.

AI response

AI's motion to dismiss the complaint acknowledges that the RIAA sent the letter. At the same time, it adds more context by pointing out that founder Brewster Kahle responded to the letter. In particular, Kahle pointed out that rights holders can send takedown notices or request the exclusion of certain artists and recordings.

According to the motion to dismiss the complaint, the RIAA never responded to this reply, and the project continued in the years that followed.

"Internet Archive founder Brewster Kahle quickly responded that the project would happily exclude any digitization of recordings identified by record companies. The record companies never responded to this letter," the motion states.

A follow-up was finally made when the RIAA's member record companies filed suit, more than three years later. The timing is important, as the AI argues that the complaint is outside the three-year statute of limitations.

Limitation period

Under US copyright law, the three-year period begins when the rights holder "discovers" the infringement. AI now argues that the record companies were aware of the alleged "Great 78 Project" infringements when the RIAA sent its letter.

"The letter acknowledges that the plaintiffs believed, as of July 22, 2020, that 'thousands' of recordings had already been digitized and downloaded as part of the Great 78 Project, including those of specifically named artists," writes IA.

"And even if the plaintiffs had no actual knowledge of these alleged infringements, the RIAA's letter demonstrates at a minimum that a reasonable plaintiff 'should have discovered' the alleged infringement and that an infringement action had been commenced by that date."

IA argues that many claims are outside the three-year statute of limitations and should therefore be dismissed. While some claims may remain, this will significantly reduce the scope of the case, as well as potential damages.

Labels have not yet responded

At the time of writing, the record companies have yet to respond to the AI argument. They may have a different view of things, but on the surface, the timing seems unfortunate. Had they filed their complaint a few weeks earlier, this problem would not have arisen.

Finally, the Kahle-Austin Foundation has filed a separate motion to dismiss the complaint. The foundation argues that there are no grounds to include it in the complaint, as it only funds the Internet Archive.

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The motion of the Internet Archive and associated defendants to dismiss the complaint is available here (pdf). The Kahle-Austin Foundation's motion is available here (pdf).