Copyright
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After successfully defeating a lawsuit that claimed they ripped off their 2019 hit “Dancing With a Stranger” from an earlier song, Sam Smith and Normani are now demanding that their accuser reimburse their legal bills – a whopping total of $732,202.
In a ruling last month, a federal judge rejected allegations that Smith and Normani had copied a little-known 2015 song of the same name when they released “Dancing,” one of Smith’s top-charting hits that peaked at No. 7 on the Hot 100 chart.
Now, Smith and Normani say they shouldn’t be forced to foot the bill for a “frivolous and unreasonable” lawsuit.
“Defective copyright infringement claims, like Plaintiff’s claims here, burden the court, cause potentially damaging negative publicity for recording artists … and others, and force needless attorney’s fees on them,” wrote attorney Peter Anderson, who reps the two stars in a Sept 22 court filing. “Awarding attorney’s fees here will deter plaintiff and others from filing and blindly prosecuting such claims without anything close to the required factual and legal basis.”
The case against Smith and Normani was filed last year by songwriters Jordan Vincent, Christopher Miranda and Rosco Banlaoi, who claimed that “Dancing” was “strikingly similar” to their 2015 same-named track. In their complaint, they said it was “beyond any real doubt” that the song had been copied.
But last month, U.S. District Judge Wesley L. Hsu said it was, in fact, very much in doubt. Granting Smith and Normani’s motion for an immediate ruling ending the lawsuit, the judge said the songs simply were not similar – and he criticized the plaintiffs for manipulating them to make them appear more alike.
“Permitting copyright plaintiffs to prevail … by rotating chords, recalibrating the tempo, and altering the pitch of a defendant’s song so that it sounds more similar to the plaintiffs’ would lead courts to deem substantially similar two vastly dissimilar musical compositions,” Judge Hsu wrote at the time.
Unlike most forms of litigation, winners in copyright lawsuits are often able to legally recover the money they spent on lawyers fighting the case. Judges grant such requests in cases where a lawsuit shouldn’t have been filed, and they can serve as a powerful deterrent against future questionable lawsuits.
In their filing asking Hsu to order Vincent, Miranda and Banlaoi to reimburse them, Smith and Normani said the songwriters’ case had been exactly the kind of pointless lawsuit that needs to be deterred.
“Plaintiff sought to monopolize unprotectable elements that are common property to all,” Anderson wrote. “Claims like Plaintiff’s here threaten to cheat the public domain and curtail the creation of new works.”
As for the total, the pair of stars said they had incurred a whopping $732,202 bill for the services of Anderson and other lawyers from the top firm Davis Wright Tremaine who defended them. That figure was “below the median hourly rates” of similar elite copyright lawyers, they said, and they were “perfectly justified” in racking up big bills on a case that was demanding all of the profits from a a multi-platinum hit song.
BMG has reached a settlement to end a copyright lawsuit against a toymaker that promoted a brand of “unicorn poop” with a song called “My Poops” – a scatological parody set to the tune of Black Eyed Peas’ “My Humps.”
In an order Tuesday, a federal judge said that BMG and toymaker MGA Entertainment had “reached a settlement in principle” to resolve the lawsuit, marking an abrupt end to what would have been a high-profile dispute over copyright’s fair use doctrine when it comes to parody songs.
Neither side immediately returned requests for comment or more information about the terms of the settlement, like whether any money was exchanged.
Released to promote MGA’s Poopsie Slime Surprise toys – unicorns that release sparkling “unicorn poop” slime – “My Poops” features similar musical elements to Black Eyed Peas’ 2005 hit, which reached No. 3 on the Hot 100 and spent 36 total weeks on the chart. But it replaces the words with joke lyrics like “Whatcha gonna do with all that poop, all that poop.”
In a January complaint, BMG said the song was very clearly an infringement of its copyrights. In addition to copying key musical elements, BMG said, MGA’s song features a lead vocalist who “sounds very similar” to Black Eyed Peas lead singer Fergie.
“Music, especially a hit song such as ‘My Humps,’ adds great value when incorporated into a product or used in a video advertisement, because it increases consumer recognizability, consumer engagement and attention to the product,” BMG wrote in its lawsuit. “The infringing work is so substantially similar to ‘My Humps’ that it is obvious that the infringing work was intentionally copied.”
Federal protections for fair use expressly empower people to parody existing copyrighted works, and one of the U.S. Supreme Court’s most important copyright rulings held that 2 Live Crew was allowed to release a bawdy parody of Roy Orbison’s “Oh, Pretty Woman” without paying royalties. But the music industry’s premiere parodist, “Weird Al” Yankovic, voluntarily chooses to license all of the songs that he parodies. And the legal analysis is undoubtedly trickier when a parody song is used for outright commercial advertising, rather than merely as a new song.
Back in 2013, the Beastie Boys sued a toy company called GoldieBlox after it released a viral parody of the group’s 1987 song “Girls” to promote its engineering and construction toys for girls. After the band threatened copyright infringement, GoldieBlox argued fair use – saying it had aimed to criticize the “highly sexist” message of the original Beastie Boys track and “further the company’s goal to break down gender stereotypes.”
But six months later, GoldieBlox agreed to a settlement in which it apologized to the Beastie Boys and agreed to donate a portion of its revenues to charities of the band’s choosing.
Back in 2018, when music producer Sherman Nealy filed a lawsuit against Warner Music Group, it was just a run-of-the-mill copyright case. Nealy claimed that Flo Rida’s 2008 tune “In the Ayer” featured an unlicensed sample of “Jam the Box,” a 1984 track released by Pretty Tony that he owns.
It’s the same kind of claim that’s made in federal courts every day.
But five years later, Nealy’s lawsuit is now headed to the U.S. Supreme Court, which will use it as a vehicle to answer big unresolved questions about how much money can be awarded in copyright cases. Are those damages limited to just the last three years before a case was filed? Or can they range back decades, adding potentially many more millions to the total?
The high court’s eventual ruling, which the justices will issue next spring, will apply to all forms of copyrighted works, but the music industry is paying particularly close attention. In a filing earlier this year, record labels and music publishers called the case “exceptionally important” to their business.
Pay After Delay?
The controversy at the center of the case against Warner dates back to 2014, when the Supreme Court ruled that the movie studio MGM could be sued for copyright infringement over Raging Bull, even though the case was filed decades after the Martin Scorsese-directed film had first been released in 1980. The studio argued that long delay was unfair, but the justices pointed out that the Copyright Act has a three-year statute of limitations that resets with every new infringement.
Under the court’s interpretation of the law, as long as copies of an allegedly infringing book, song or movie had been sold during the three years prior to the lawsuit, it was fair game for a copyright case. Perhaps unsurprisingly, that ruling led to a surge in long-delayed infringement cases, including a high-profile lawsuit against Led Zeppelin over the 1971 song “Stairway To Heaven.”
But like many Supreme Court decisions, the Raging Bull ruling ultimately raised as many questions as it answered. Chief among them: if you can sue many years later, how far back can you seek damages? If you successfully sue someone in 2023 over a song that came out in 1995, can you demand payment based on 27 years of illegal sales?
In the Raging Bull ruling, the Supreme Court seemed to say no. In her opinion, the late Justice Ruth Bader Ginsburg was fairly clear: “A successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep.”
In the years since, the New York-centric U.S. Court of Appeals for the Second Circuit has taken that language literally, ruling a copyright accuser cannot win damages for any for any conduct older than three years – full stop. If you wait to sue over a hit song from the 1990s, you cannot tap into those huge profits when you win the lawsuit.
But the U.S. Court of Appeals for the Ninth Circuit (covering California) disagrees. If you can prove that you only recently “discovered” the fact that your copyright was infringed, the Ninth Circuit says you can seek damages going back all the way to all the way back to the very first infringement – potentially decades worth of penalties.
That means the two courts that contain the vast majority of the country’s creative industries are directly divided over how copyright law works – a so-called “circuit split” that the Supreme Court is tasked with correcting.
Heading To Court
Nealy sued Atlantic Records, Warner Chappell and Artist Publishing Group in Florida federal court in 2018, arguing he had never actually granted them a valid license for his “Jam the Box” to be sampled in Flo Rida’s “In the Ayer,” which reached No. 9 on the Hot 100 after being released in July 2008.
In 2021, the judge overseeing the case cited Raging Bull and ruled that Nealy couldn’t win any money from earlier than 2015. Though Nealy said he had only learned of the illegal sample in 2016 and wanted damages going all the way back to 2008, the judge cited the Supreme Court’s “binding precedent” that had “explicitly delimited damages to the three years prior.”
But earlier this year, the U.S. Court of Appeals for the Eleventh Circuit overturned that ruling. Siding with the Ninth Circuit’s approach, the appeals court ruled that Nealy’s late discovery of the infringement was a different situation than the one dealt with in Raging Bull – and that any similar “discovery rule” cases would be allowed to seek damages as far back as they went.
Warner quickly appealed that decision to the Supreme Court. Repped by elite SCOTUS attorney Kannon Shanmugam of the law firm Paul Weiss, the company argued in a May petition that the “discovery” approach would unfairly expand the “financial exposure” of a copyright defendant and potentially lead to frivolous lawsuits that aimed to “extract settlements.”
“Deprived of a predictable limitations period and faced with expensive, time-consuming, and difficult litigation in order to defend years-old uses of copyrighted works, defendants will often be left with no choice but to settle claims early even in the absence of wrongdoing—or potentially never enter valuable agreements in the first place,” Shanmugam wrote for his client.
“Vitally Important”
The phrases “retroactive relief” and “three-year lookback period” might make your eyes glaze over, but the Nealy v. Warner case has big implications for copyright-heavy industries like music.
After the Raging Bull ruling dropped in 2014, artists and labels saw a rash of long-delayed cases. The lawsuit against Led Zeppelin – which resulted in more than six years of costly litigation before the band was ultimately cleared of all wrongdoing – was the most prominent, but it was just one of many. Meatloaf was sued over his 1993 song “I’d Do Anything For Love”; U2 was accused of ripping off its 1991 hit “The Fly”; and another case claimed that Notorious B.I.G.’s 1993 hit “Party and Bullshit” featured an unlicensed sample.
If the Supreme Court eventually rules in favor of Nealy, it would almost certainly encourage more age-old cases, creating a far larger potential prize for a successful accuser. As Nealy’s attorneys argued at an earlier stage of his case, when it comes to years-old copyright claims, “the vast bulk of damages” will typically fall outside the three-year limit.
Labels and publishers are watching the case closely. In a June brief at the Supreme Court, the Recording Industry Association of America and National Music Publishers’ Association didn’t advocate for either camp, but simply urged the justices to take up a case that is “vitally important to the music industry.”
“Because copyrights are the music industry’s most consequential asset, music labels and music publishers regularly find themselves both enforcing and defending copy right lawsuits,” lawyers for RIAA and NMPA wrote. “Without a clear national rule setting the temporal limits of recoverable damages, amici and their members face serious uncertainty.”
Sam Smith and Normani have prevailed in a copyright lawsuit against their 2019 hit “Dancing With a Stranger” a California judge agreed to dismiss the case Wednesday (Sept. 6). Released in 2019 off Smith’s third studio album Love Goes, “Dancing with a Stranger” is one of their top-charting hits, peaking at No. 7 on the […]
The U.S. Copyright Office issued a ruling on Tuesday (Sept. 5), confirming that songwriters and publishers are owed late fees when streaming services do not pay royalties to the Mechanical Licensing Collective (The MLC) on time. This, however, does not apply to the major adjustments in royalty payments currently underway following the re-setting of Phonorecords III rates (2018-2022), according to the office.
Late fees have been an ongoing debate between the music publishing industry and streaming services dating back to the passage of the Music Modernization Act (the MMA) in 2018. That landmark law switched how streaming services licensed music, from a song-by-song piecemeal system — which many considered ineffective and cumbersome — to a blanket licensing regime instead.
The law took effect starting Jan. 1, 2021, requiring digital music providers like Spotify and Apple Music to go to the newly created MLC to obtain a blanket mechanical license to reproduce music on these platforms. As part of the new system, streamers had to pay out royalties owed to the MLC, which then pays the writers and publishers, each month. More specifically, the law stipulates mechanicals are due “45 calendar days after the end of the monthly reporting period.”
After that, any lagging payment is considered late and subject to additional penalties, according to the MMA. For the current period of Phonorecords IV (2023-2027), the Copyright Royalty Board judges say that a streaming service must pay a late fee of 1.5% per month, or the highest lawful rate, whichever of those two is lower, for any payment owed to the music’s copyright owners that hadn’t been paid on time. The late fees accrue from the due date until the copyright owner receives payment.
The main source of debate around late fees is whether they should apply in the case of a monthly payment that needs adjustment after it is paid out. Streaming services have argued that “‘[i]f a service is following the regulations by making a reasonable estimate of an input it does not know the value of, it should not be penalized with a late fee even if it so happens that the estimate is too low.”
On the other side, the MLC has argued that allowing such exceptions would incentivize the streaming services to intentionally draw up payment estimates that undervalue what is owed to songwriters and publishers.
The Tuesday ruling by the Copyright Office settles the debate: “The Office concludes that the statute’s due date provisions are unambiguous. The statute’s reference to ‘due date for payment’ clearly refers to the date on which monthly royalty payments are required to be delivered to the MLC, i.e., no later than forty-five days after the end of the monthly reporting period.”
“This is a major victory for music creators who have waited far too long to be made whole from the appeal which significantly delayed their compensation,” says NMPA President and CEO David Israelite. “The USCO’s decision reiterates our assertion that the due dates are unambiguous and any past-due payments to the MLC must come with appropriate statutory penalties.”
Cardi B and Megan Thee Stallion have won a court ruling tossing out a lawsuit that accused them of stealing the lyrics to their smash hits “WAP” and “Thot Shit” from an earlier track called “Grab Em by the P—-.”
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In a decision issued Tuesday (Aug. 29), a Manhattan federal judge ruled that the lyrics Cardi and Megan were accused of copying in their songs — “p—- so wet” and “n—-s wild’n” — were simply too unoriginal to be covered by copyright law.
“The lyrics over which plaintiff asserts copyright protection are no more than common phrases, employed frequently in popular culture and other Hip-Hop songs,” U.S. District Judge Andrew L. Carter wrote.
“The concept of using ‘p—- so wet’ as a rhetorical device in a song is neither original nor unique to plaintiff,” the judge wrote. “Likewise, defendants have provided examples of at least three songs pre-dating [‘Grab Em’] which use some variation of the phrase ‘n—–s wild’n.’”
The ruling dismissed a lawsuit filed last year by Denise Jones, a rapper who performs under the name Necey X, against Cardi (Belcalis Marlenis Almanzar), Megan (Megan Pete) and Atlantic Records. Jones, who sued without the aid of a lawyer, claimed that the stars chose to “copy and paste” her lyrics into their songs.
But in Tuesday’s decision, Judge Carter said Jones not only lacked valid copyrights in those lyrics but that Cardi and Megan’s own words were not “substantially similar” to those in “Grab Em” — the key requirement for proving copyright infringement.
“Defendants’ lyric, ‘why you in the club with n—-s wild’n,’ poses a question to the rapper (or to the audience), while plaintiff’s lyric refers to the rapper’s effect on a single individual,” the judge wrote. “Thus, the phrase is used in different ways and has different meanings such that an ordinary listener would not identify defendants’ lyric as being appropriated from plaintiff’s song.”
The lawsuit also included additional claims beyond copyright law, including that Cardi and Megan had stalked and harassed Jones. But Judge Carter quickly dispatched those allegations as well.
“Plaintiff makes generalized allegations about fearing for her safety from alleged stalking and harassment by the ‘cartel’ that she equates to the music industry at large, but plaintiff neither identifies any negligent conduct on the part of defendants or any special duty to avoid causing emotional distress,” the judge wrote.
Jones did not return a request for comment on the ruling Friday.
Released in August 2020 by Cardi with guest vocals by Megan, “WAP” was a smash hit, spending four weeks atop the Hot 100. “Thot Shit,” released a year later by Megan, was partly inspired by the backlash that “WAP” had received from conservative critics; it reached No. 16 on the Hot 100.
Whether by coincidence, osmosis, common ancestry or, you know, theft, there are plenty of hit songs that sound strangely similar to pre-existing material… or do they? Enter the lawsuit. While some artists and songwriters shrug off similarities, others take it to court, demanding what they perceive is their due when it comes to alleged copyright infringement.
Of course, music history – especially when it comes to pre-recorded music – is rife with songs that were inspired by (or wholesale stolen from) previous material. Early rock n’ roll songs frequently lifted riffs, lyrics and chords from classic blues and country songs, which themselves were often based on folk tunes, African-American spirituals and work songs, nursery rhymes and even melodies from classical compositions. If you could time travel and track the authorship of songs as simple as “I’ve Been Working on the Railroad” or “Yankee Doodle,” the list of co-writers for each would probably run north of two dozen by modern standards of crediting songwriters for their contributions.
As recorded music became big business over the 20th century (and new technology made it easier to track song authorship and a writer’s exposure to previous material), copyright lawsuits became a regular occurrence in the music industry. But the litigation really took off in the 2010s, after a landmark lawsuit between the estate of Marvin Gaye and Robin Thicke and Pharrell Williams over “Blurred Lines” made things a bit more muddled (or blurred, if you will).
In the aftermath of the “Blurred Lines” case, many songwriters opted to credit scribes whose copyrighted material bore even a passing resemblance to theirs, assuming it was easier to give credit than deal with a protracted, expensive lawsuit. But more recently, many artists have started to fight back, fearing that settling with accusers was leading to more unjustified lawsuits. Led Zeppelin, Katy Perry and Ed Sheeran have all won high-profile victories in recent years, defeating copyright cases by arguing that basic musical building blocks must be free for everyone to use.
It’s worth mentioning that technically, plagiarism (taking someone else’s efforts and presenting it as your own original work) is not illegal in the United States. If a dispute over a song reaches the courts, it’s over copyright infringement, not plagiarism, so the arguments over these songs are about whether someone ran afoul of copyright law. (Although most people tsk-tsk plagiarists, too.)
The songs on this list share two things in common: They topped the Billboard Hot 100, and some people believe they lifted elements from a previously existing song. Inclusion on this list doesn’t imply wrongdoing. Several of these disagreements settled out of court; one was settled without any lawsuit being filed; and one artist handily won their case against the accuser.
Read on to see how the rest of the songs fared.
“Come Together”
Karol G and Tiësto are facing a copyright infringement lawsuit over their song “Don’t Be Shy,” filed by a Cuban-American songwriter who says their track features elements that are “practically identical” to his earlier tune.
In a complaint filed Tuesday in Puerto Rico federal court, lawyers for songwriter Rene Lorente claim that Karol G and Tiësto’s 2021 dance-pop hit infringed his 2000 song “Algo Diferente” by using a melody that “sounds identical.”
“It doesn’t take an expert or musician, to carefully listen to the melody/sounds of each, to recognize that one was copied from the other,” Lorente’s lawyers wrote in their complaint. “In this case, defendants’ ‘Don’t be Shy’ is a blatant violation of plaintiff’s copyrighted ‘Algo Diferente’.”
Karol G, who is currently sitting atop Billboard’s Hot Latin Songs chart with her “Qlona,” teamed up with Tiësto to release “Don’t Be Shy” in August 2021. The song, which hit No. 4 on the Hot Dance/Electronic Songs chart, was the Columbian star’s first released in English.
But in his lawsuit, Lorente claims Karol G and Tiësto’s song “misappropriated his beloved copyrighted work” – a tune released in May 2000 that currently has 3,647 total streams on Spotify. A version of “Algo Diferente” on YouTube, uploaded just nine days ago by CD Baby, has been streamed 6,423 times.
According to Lorente’s lawyers, a comparison of the two songs shows that they are “substantially similar” – the requirement to prove copyright infringement.
“Expert analysis of musical arrangement fragment of the copyrighted and infringing works, show exact rhythm, note arrangement, same intervals, harmony, with the only change being limited perhaps to the pitch, within 8 musical bars, repeated throughout infringing work,” Lorente’s lawyers wrote in his lawsuit. “However, for a lay listener and a jury, this combination of musical notes sounds identical.”
The lawsuit is seeking a whopping $52 million dollars, but attorneys who file lawsuits can claim any damages total they want. Even if Lorente’s lawsuit was successful – and that is not a given – such demands are typically not good indicators for what a judge or jury might ultimately award.
Reps for Karol G and Tiësto did not return requests for comment on Thursday.
Listen to the two songs below and compare for yourself:
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A U.K. Parliament committee is calling on the British government to ensure that artificial intelligence (AI) developers are prevented from the free use of copyright-protected musical works for training purposes — and to commit to abandoning much-criticized plans that opponents say would significantly weaken copyright protections for artists and rights holders.
A report from the Culture, Media and Sport (CMS) Committee published Wednesday (Aug. 30) says that any future legislation governing the use of AI technology in the United Kingdom, the world’s third-biggest music market, must not risk “reducing arts and cultural production to mere ‘inputs’ in AI development.”
Committee members also state that urgent action must be taken to improve protections for artists and creators against the misuse of their likenesses, image rights and performances by emerging technologies such as generative AI.
The report comes more than a year after U.K. government body The Intellectual Property Office (IPO) first proposed the introduction of a new text and data mining (TDM) exception allowing AI developers to freely use copyright-protected works for commercial purposes.
Those plans, announced by the IPO last June, gave rights holders no option to opt out of the TDM exception, although they did state that tech developers would still require “lawful access” to any copyright-protected data, enabling rights holders to agree to license fees and charge for access.
The proposals drew strong criticism from across the creative industries, with Jamie Njoku-Goodwin, CEO of umbrella trade body UK Music, describing them as a “green light to music laundering.” In response, the government announced in February that it had listened to the objections and would no longer be proceeding with the original plans.
The CMS Committee welcomed the change of course but warned that the government’s handling “shows a clear lack of understanding of the needs of the U.K.’s creative industries.”
“The chorus of warnings from musicians, authors and artists about the real and lasting harm a failure to protect intellectual property in a world where the influence of AI is growing should be enough for ministers to sit up and take notice,” said CMS Committee chair Dame Caroline Dinenage in a statement.
Dinenage said the government must follow through on its pledge to abandon plans for a text and data mining exception to copyright-protected works and regain the trust of the creative industries by developing “a copyright and regulatory regime that properly protects them” from the potential risks of AI.
The U.K.’s current legal framework, which contains TDM allowances for non-commercial research purposes while also allowing rights holders to commercially license their work, “provides an appropriate balance between innovation and creator rights,” said the committee report.
The U.K.’s moves to police the rapidly evolving AI sector comes as other countries and jurisdictions, including the United States, China and the European Union, explore their own paths toward regulating the nascent technology.
The EU’s Artificial Intelligence Act, which was first proposed in April 2021 and is now being negotiated among politicians in different branches of government, is leading the way as the world’s first comprehensive legislation around AI. It states that generative AI systems will be forced to disclose any content that they produce that is AI-generated — helping differentiate computer-created works from those authored by humans — and provide detailed, publicly available summaries of any copyright-protected music or data they have used for training purposes.
Other provisions in European law, most notably those contained in 2019’s EU Copyright Directive, also deal with AI and text and data mining exceptions of copyrighted content, such as music, although these are more robust than those initially proposed — and since abandoned — by the U.K. government. These EU provisions include allowing rights holders to stop AI systems from using their content for training purposes, or to limit which ones can in order to license that right.
Responding to the CMS Committee’s recommendations, BPI chief executive Jo Twist said it was “essential that artists and rightsholders can work in partnership with technology and that policies do not allow AI to get a free ride, but to always respect human creativity by seeking permission and remunerating the use of creative content.”
Why is the music business picking on Brewster Kahle? All the technology activist wants to do with the Internet Archive, which he founded in 1996 and still chairs the board of, is create a digital library that offers “universal access to knowledge.” Isn’t that the promise of the digital age — that anyone with an internet connection can access anything ever created?
Turns out it’s more complicated than that. On Aug. 11, Universal Music, Sony Music and Concord Music filed a lawsuit, managed by the RIAA, against the Internet Archive, Kahle’s foundation, Kahle himself and an audio archivist who worked on the project, for infringing the copyrights to old recordings that the Internet Archive makes available through its “Great 78s” project to digitize old recordings originally issued as 78rpm records.
Already, in June 2020, four big book publishers had sued the Internet Archive for making available for a limited time copy-protected digital versions of books — first as many as it had in its collection or those of its partners, then during the pandemic, with its National Emergency Library, as many as users wanted. The publishers won on summary judgement, although the Internet Archive has said it will appeal.
The Internet Archive does lot of worthwhile work: its Wayback Machine tracks old web pages, offers access to considerable information in the public domain, and boasts an expansive collection of live Grateful Dead recordings. The Great 78s project makes available some old recordings that might otherwise be lost, but according to the RIAA lawsuit it also offers streaming access to plenty of recordings that are big business, including Bing Crosby’s iconic version of “White Christmas” — by some measures the most popular recordings of the 20th century — plus Buddy Holly’s “Peggy Sue,” Chuck Berry’s “Roll Over Beethoven” and Frank Sinatra’s “I’ve Got the World on a String.” The 78, may be an obscure format, but some of the music originally released that way is still relatively popular.
The Internet Archive responded in a blog post that it’s a “lawsuit targeting obsolete media.” “When people want to listen to music they go to Spotify,” Kahle said in a statement on the blog. (The Internet Archive did not comment other than pointing to this post.) “When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”
Except that many of those “78rpm sound recordings” aren’t obsolete at all — they’re the exact same recordings that are on Spotify, plus Apple Music and other streaming services. The versions available on the Internet Archive sound scratchy, but the recordings themselves weren’t originally created that way, and the wear on the particular 78s that were digitized by the archive is less about the history of recorded music than about how careful a particular person was with his or her records.
Kahle presents himself as a “digital librarian” who’s making books — and music and other media — available the way libraries always have. But it’s worth remembering that the legal arguments for the Internet Archive’s book-lending program aren’t based on the provision of copyright law that provides exceptions for libraries. Instead, the archive’s legal claim is that copying and distributing books temporarily is fair use. Which means that, if the Internet Archive had won, any library — or, importantly, perhaps any nonprofit entity that defined itself that way, or maybe any entity at all — could copy books it had purchased in order to distribute them. (The archive, in turn, says that its loss is a disaster for libraries, since they have to license books from publishers; but shouldn’t libraries — an essential public good — be funded by the public in a way that’s fair to creators and rightsholders?) Kahle, who has campaigned for years against what he sees as the excesses of copyright, seems to want to change the law.
“The fact that you own a particular copy doesn’t mean that you can make and distribute copies of that copy — this is basic copyright law,” said Maria Pallante, chief executive of the Association of American Publishers (AAP), which helped to guide the publishers’ lawsuit. “They were trying to bloat fair use, while also asserting a first sale defense that applies only to tangible goods, not bootleg digital files.”
The RIAA is suing at least partly to establish case law behind the part of the 2018 Music Modernization Act, which extended federal copyright protection to recordings made before 1972, which were previously only covered under state law. The labels may also want to collect damages: Since statutory damages for willful infringement can be set by judges or juries at up to $150,000, this case could potentially cost the Internet Archive as much as $412 million. “This is the kind of egregious behavior that the Music Modernization Act was intended to address,” says RIAA CEO Mitch Glazier.
Recordings were only covered under state law until the Copyright Act of 1976, but it wasn’t retroactive. And although some opponents of copyright characterized the Music Modernization Act as a land grab by media companies, that doesn’t hold up: Some state laws made it unclear whether copyright protection ever lapsed at all. Indeed, one reason that sound recordings copyrights were federalized in the first place was to help libraries and archives take advantage of the exceptions and limitations that exist in federal copyright legislation, including fair use and specific exceptions for libraries and archives.
As it happens, the subject of federal copyright protection for pre-1972 recordings was studied in a 2011 report by the Register of Copyrights, and substantial attention was devoted to “challenges of preservation and access.” “Substantively,” the report recommended, “the use of section 108 and the fair use exception should encourage more preservation and public access because they provide time—tested rules with which libraries and archives have experience.”
The law under which the Internet Archive is being sued was actually set up partly to help it and other archives, especially in its “orphan works” provision, the result of a compromise between Music Modernization Act proponents and opponents, that allows organizations to use pre-1972 recordings for non-commercial purposes after checking to make sure they’re not in commercial use. (There’s a procedure for this.) If the Great 78s project really intends to make available music that is in danger of disappearing, the law allows for that. Why aren’t Kahle and the Archive following it? It’s hard to imagine that Kahle doesn’t understand the law.
And that’s why the music business is picking on Brewster Kahle — because it sometimes seems as though the Internet Archive is as much about pushing the boundaries of copyright law as it is about preserving creative works in the first place. Libraries play a crucial role in any democratic society, and Kahle and the archive do a lot of important work. But so do the performers and songwriters — and, yes, the labels and publishers — who made all of these recordings possible in the first place.