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The Recording Industry Association of America (RIAA) welcomed the latest edition of the United States Trade Representative’s (USTR) Notorious Markets Report on Tuesday (Jan. 30), which provides an annual run-down of various forms of copyright infringement, including digital music piracy.
Digital music piracy is not front-of-mind for many listeners in the age of streaming; even the industry itself has focused more of its recent frustration on streaming fraud and the popularity of rain sounds, at least in public comments made in the last year.
However, global music piracy inched up in 2022, according to a March 2023 report from MUSO, a U.K. technology company, which tracked over 15 billion visits to music piracy sites that year.
The USTR’s new report highlighted a handful of sites — including 1337X, Krakenfiles, Rapidgator and Ssyoutube — where people go to stream or download songs illegally. “Ssyoutube is reportedly the most popular YouTube ripping site globally, with over 343 million visitors just in April 2023,” the USTR noted in one example.
“We appreciate the report’s prioritization of thefts that target the music community such as stream-ripping,” said George York, the RIAA’s senior vp of international policy, in a statement.
Overall, music is less of a concern in this year’s USTR report relative to 2023’s. The document’s primary focus is the “potential health and safety risks posed by counterfeit trademark goods.”
The USTR was heartened by the fact that “this year many e-commerce and social commerce platforms took solid steps toward initiating additional anti-counterfeiting practices and adapting to new circumvention techniques used by counterfeiters.”
“Several platforms filed public submissions outlining their implementation of new anti-counterfeiting tools, including releasing educational campaigns, increasing identity verification requirements, and implementing faster and more transparent notice-and-takedown processes,” the report continued. “Additionally, several platforms have invested in artificial intelligence (AI) and machine learning technologies as a way to scale up and quickly adapt traditional anti-counterfeiting measures such as text and image screening.”
The RIAA had asked the USTR to highlight another aspect of AI, according to comments submitted in October, though it was not ultimately included in the report.
At the time, the RIAA noted that “the year 2023 saw an eruption of unauthorized AI vocal clone services that infringe not only the rights of the artists whose voices are being cloned but also the rights of those that own the sound recordings in each underlying musical track. This has led to an explosion of unauthorized derivative works of our members’ sound recordings which harm sound recording artists and copyright owners.”
In a statement following the USTR’s latest release, York “urge[d] the organization to take “a close look in the future at emerging piracy challenges presented by AI, including the widespread illegal use of copyrighted sound recordings and artist names, images, and likenesses to generate invasive and unlawful voice clones and deepfakes.”
Several of Kane Brown‘s famous friends helped surprise the singer-songwriter with the news that his 2018 two-week Billboard Country Airplay No. 1 hit “Heaven” has been certified diamond by the Recording Industry Association of America (RIAA). The song is the eighth country single to earn the accolade, with 10 million certified units in the United States.
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Brown and the RIAA shared a video on social media Thursday (Dec. 7) showing the moment he received the news via a video featuring his fellow Diamond-selling country artists Luke Combs, Hillary Scott (of Lady A), Tyler Hubbard (formerly with Florida Georgia Line) and Darius Rucker.
“Not many people have done that,” Combs told Brown of reaching the milestone. “I just want to say welcome to the club, man, super cool. Keep killin’ it, man. You’ve always been awesome.”
“That is such a huge achievement. Welcome to the diamond club, it’s something to be really proud of,” added Hubbard.
“Your song ‘Heaven’ has obviously touched so many hearts and so many lives,” Scott said.
“Welcome to the diamond club. Congratulations, brother,” Rucker said.
“An incredible talent with 23 RIAA certified titles and accolade upon accolade across genres, today, we are thrilled to recognize Kane Brown’s first Diamond for his single ‘Heaven.’ This enchanting hit has clearly struck a chord with fans – topping 10 million certified units! Congratulations to Kane, his creative partners and RCA Nashville team on this rare milestone,” said RIAA COO Michele Ballantyne via a statement.
Previous country singles to be certified diamond by the RIAA are Lady A’s “Need You Now,” Chris Stapleton’s “Tennessee Whiskey,” Sam Hunt’s “Body Like a Back Road,” Combs’ “Beautiful Crazy,” the Lil Nas X/Billy Ray Cyrus collab “Old Town Road,” Florida Georgia Line’s “Cruise” and Rucker’s “Wagon Wheel.”
See the video below:
The RIAA has asked to have AI voice cloning added to the government’s piracy watch list, officially known as the Review of Notorious Markets for Counterfeiting and Piracy.
The RIAA typically writes in each year, requesting forms of piracy like torrenting, stream ripping, cyber lockers and free music downloading to be included in the final list. All of these categories of piracy are still present in the RIAA’s letter to the U.S. Trade Representative this year, but this is the first time the trade organization, which represents the interest of record labels, has added a form of generative AI to their recommendations.
The RIAA noted that it believes AI voice cloning, also referred to as ‘AI voice synthesis’ or ‘AI voice filters,’ infringes on their members’ copyrights and the artists’ rights to their voices and calls out one U.S.-based AI voice cloning site, Voicify.AI as one that should specifically face scrutiny.
According to the letter, Voicify.AI’s service includes voice models that emulate sound recording artists like Michael Jackson, Justin Bieber, Ariana Grande, Taylor Swift, Elvis Presley, Bruno Mars, Eminem, Harry Styles, Adele, Ed Sheeran, and others, as well as political figures including Donald Trump, Joe Biden, and Barak Obama.
The RIAA claims that this type of service infringes on copyrights because it “stream-rips the YouTube video selected by the user, copies the acapella from the track, modifies the acapella using the AI vocal model, and then provides the user unauthorized copies of the modified acapella stem, the underlying instrumental bed, and the modified remixed recording.” Essentially, some of these AI voice cloning sites train its models on stolen copyrights.
It additionally claims that there is a violation pf the artists’ right of publicity, the right that protects public figures from having their name, likeness, and voice commercially exploited without their permission. This is a more tenuous right, given it is only a state-level protection and its strength varies by state. It also becomes more limited after a public figure’s death. However, this is possibly the most common legal argument against AI voice cloning technology in the music business.
This form of artificial intelligence first became widely recognized last spring, when an anonymous TikTok user named Ghostwriter used AI to mimic the voices of Drake and The Weeknd in his song “Heart On My Sleeve” with shocking precision. The song was briefly available on streaming services, like YouTube, but was taken down after a stern letter from the artists’ label, Universal Music Group. However, the song was ultimately removed from official services due to a copyright infringement in the track, not because of a right of publicity claim.
A few months later, Billboard reported that streamers were in talks with the three major label groups about allowing them to file take down requests for right of publicity violations — something which previously was only allowed in cases of copyright infringement as dictated in the Digital Millennium Copyright Act (DMCA). Unlike the DMCA, the newly discussed arrangement regarding right of publicity issues would be a voluntary one. In July, UMG’s general counsel and executive vp of business and legal affairs, Jeffery Harleston, spoke as a witness in a Senate Judiciary Committee hearing on AI and copyright and asked for a new “federal right of publicity” to be made into law to protect artists’ voices.
An additional challenge in regulating this area is that many AI models available on the internet for global users are not based in the U.S., meaning the U.S. government has little recourse to stop their alleged piracy, even if alerted by trade organizations like the RIAA. Certain countries are known to be more relaxed on AI regulation — like China, Israel, South Korea, Japan, and Singapore — which has created safe havens for AI companies to grow abroad.
The U.S. Trade Representative still must review this letter from the RIAA as well as other recommendations from other industry groups and determine whether or not they believe AI voice cloning should be included on the watchlist. The office will likely issue their final review at the start of next year.
U.S. Latin music revenue increased 15% to a record high of $627 million in the first half of 2023, according to the RIAA’s mid-year Latin music report released Wednesday (Sept. 27). The new milestone for the genre follows Latin music revenue hitting an all-time high last year, exceeding the $1 billion mark with 24% growth that outpaced the overall market.
According to the report, streaming continued to drive an “overwhelming” portion of the genre’s growth, accounting for 98% of revenue. Latin music’s share of overall U.S. recorded music revenue grew from 7.1% in the first half of 2022 to a new pinnacle of 7.5% in the first half of 2023.
“U.S. Latin music revenues reached an all-time high in 2022, and the growth has continued mid-year into 2023. This has been driven by both the vitality of classic hits and chart-topping new releases that have influenced broader culture and society,” said RIAA senior vp of public policy & industry relations Rafael Fernandez in a statement.
Latin music’s growth over the past two years has been driven by the success not only of Bad Bunny — who ended 2022 as the most streamed artist in the United States and around the world — but also artists such as Karol G, who earlier this year made history with Mañana Será Bonito. In March, the 17-track set became the first all-Spanish language album by a Latin female artist to top the Billboard 200.
A new wave of música mexicana acts such as Peso Pluma, Fuerza Regida and Eslabon Armado have also helped usher in a record year for regional Mexican music. Earlier this year, Billboard reported that consumption for the genre jumped 42.1% through May 25, according to Luminate.
The RIAA’s mid-year report further explains that ad-supported on-demand music streaming revenue (from services like YouTube, the free version of Spotify and social media platforms) continued to make up a larger percentage of revenue for Latin music (23%) than for U.S. recorded music overall (10%).
Meanwhile, revenue from digital and customized radio services (such as Pandora, SiriusXM and internet radio services) grew 13% to $36 million — rebounding from a 5% decrease in 2022 — making up 6% of total Latin music revenue. However, physical formats totaled less than 1% of revenue at $4.7 million, resulting in a 37% decline from the first half of 2022.
Purchase tickets to 2023 Billboard Latin Music Week here.
Halfway through 2023, the U.S. recorded music industry has set a record for first-half retail revenue, generating $8.4 billion, according to the new RIAA mid-year 2023 report released Monday (Sept. 18). But within that headline number, there are several trends and statistics that are worthy of their own exploration, from increasing revenue to slowing growth figures and the factors behind them. Digging deeper into the numbers, here are four takeaways (and a bonus fifth) from the mid-year report.
Ad-Supported Revenue Flatlines
The RIAA reported that ad-supported on-demand streaming revenue came in at $870.1 million — just a 0.6% bump over the $865 million it generated in the first half of 2022. Looking at the 2022 mid-year report, the ad-supported revenue figure was $871.5 million, up 16.4% from $748.5 million midway through 2021. (The RIAA regularly adjusts and updates figures each year as more data becomes available, hence the discrepancies.) What it points to, at best, is a stagnant advertising market; and at worst, one that risks going backwards.
On one hand, it’s not surprising, given the adverse advertising market across the board in 2023 so far. On the other hand, it’s yet another blow to a part of the model for services like Spotify and YouTube that has been maligned for years and considerably detracts from the value of music. Still, revenue from the “other ad-supported streaming” category grew 56.8% year over year for an increase of $58 million after a few years of negligible growth at best.
The Big Pricing Shift
In the past two weeks, a lot of conversation in the industry has revolved around how royalties from streaming services should be divided moving forward. But the broader issue that many executives are, and have been, pointing to has been about pricing. Music streaming services have fallen behind the times in keeping the price of a monthly subscription largely static over the past decade-plus, while video streamers (with fractionalized offerings) have raised prices regularly.
That’s now starting to change — and it’s being reflected in the numbers. Apple Music and Amazon Music both raised prices for their streaming services at the turn of the year, and that has translated into paid subscription streaming revenue growing 12.4% in the first half of 2023 — even as the average number of subscriptions grew at a much slower rate, increasing just 6.4% from 90 million to 95.8 million. With YouTube Music and, most critically, Spotify increasing prices over the summer — numbers that were not reflected in the first half of this year — the additional value realized will be something to keep an eye on moving forward.
But It’s Not Just Streaming
Those streaming service price hikes get a lot of attention — and rightly so. But the industry is seeing increased revenue from consumers in more than just streaming. The physical product market has continued to grow in revenue, up 5% overall, with vinyl revenue rising 1.3% year over year (up $8.2 million) and CD revenue growing 14.3% (up $29.6 million). What’s more interesting — apart from, perhaps, the winding down of the “vinyl explosion” double-digit increase narrative of the past several years — is that both formats grew in revenue while being down in unit counts.
Vinyl, overall, seemed to be a little static year over year. The number of records sold dropped by about 400,000 or so, even as revenue ticked up. But the discrepancy in CDs was stark: despite the type of double-digit revenue growth that’s been associated with vinyl in years past, there were actually 3.2 million fewer CDs sold in the United States in the first half of 2023 compared to 2022. Whether that’s a reaction to the hyper-fandom of artists who tend to do well in the physical market raising prices significantly or a marker of an industry-wide price hike there, it’s another example of how pricing is shifting across the industry and changing the revenue picture as a result.
Subscriptions Slowing Down?
As noted above, the average number of paid music streaming subscriptions grew by 5.8 million in the first half of the year to 95.8 million. That represents the slowest level of growth — both in raw numbers and in percentage — since at least 2015, when the U.S. streaming industry was still in its nascent phases. The growth in the number of subscribers has been slowing down now for about five years straight, as those who haven’t already gotten on board with paid music streaming slowly sign on. But it’s unclear how much room for growth remains — and, either way, the focus will continue to shift from acquisition and retention to growing value.
As subscriptions continue to near critical mass in the United States, the industry will need to continue its growth rate by convincing digital service providers to get more from the subscribers they already have. Whether that comes from price hikes or finding new ways to monetize fans on platforms — or, more likely, some combination of both — is an area to watch.
And, Finally…
A last word for our favorite sector of the RIAA report each year: ringtones and ringbacks. U.S. consumers spent $6.0 million on them in the first half of 2023 — down slightly from $6.2 million halfway through last year — while the unit count also slightly declined. We are a long way away from the Billboard Ringtones Chart of 2004, yet they continue to hang on as a line item year after half year. What a blessing.
Today we are releasing U.S. recorded music revenue data for the first half of 2023, reflecting 9.3% growth over the first half of 2022 — the ninth straight year of positive growth.
With overall first-half revenues hitting an all-time high of $8.4 billion at retail value and paid streaming subscriptions nearing 96 million, this report makes clear the strength of American recorded music’s fundamentals.
For example, this new data shows broad strength across formats — especially digital streaming, which now comprises some 84% of recorded music revenues and grew at a robust 10.3% rate this period. Looking solely at paid streaming subscriptions, that figure climbs to 11%.
In fact, paid subscription services were responsible for nearly two-thirds of total revenues and more than three-quarters of streaming revenues. And they continued to grow at an even faster rate than ad-supported revenues.
But it’s not only streaming; the new data also show the lasting power of physical formats — which grew by 5% — including growth in the value of sales of CDs and vinyl. Overall, physical revenues reached their highest level since a full decade ago, topping $880 million so far this year.
And digital and customized radio music revenues, which include SoundExchange distributions for revenues from services like SiriusXM and internet radio stations, grew 16% to $657 million for the period.
As we’re fond of saying, “Music doesn’t just happen.” This success reflects the hard work, innovation, and creative genius of the artists, songwriters, labels, publishers, and services that make up the U.S. music community.
Finally, with annual Latin music revenues in the U.S. exceeding $1 billion for the first time in 2022 and the first half of 2023 showing continued growth faster than overall revenues, Latin music continues to shine — both economically and creatively. We look forward to releasing a full report on the Latin segment during Hispanic Heritage Month and as a capstone to our upcoming RIAA Honors Celebration of Latin music where we will recognize legends Gloria and Emilio Estefan, superstar Sebastián Yatra and other Latin music trailblazers as well as the policymakers who protect it all.
RIAA is proud to develop and release this transparent data which shows the continued power and vitality of U.S. recorded music.
Mitch Glazier is chairman/CEO of the Recording Industry Association of America.
Recorded-music revenues in the United States grew 9.3% in the first half of 2023, reaching an all-time mid-year high of $8.4 billion at retail value, the RIAA said in its mid-year report released today (Sept. 18). That reflects a second year in a row of 9% increases at the mid-year mark, as growth steadies after the upheaval of the pandemic led to market unpredictability.
Once again streaming was the primary driver of both revenue and growth, increasing 10.3% over the first half of 2022 to reach $7 billion, accounting for 84% of all revenue and marking the fourth year in a row that it has accounted for 83%-84% of the overall total.
Paid subscription streaming accounted for the bulk of that number, growing 11% year over year to $5.5 billion, up from $5 billion halfway through 2022 — making up 65.4% of the total revenue figure, and 78.6% of streaming. Notably, the RIAA points out that subscription streaming revenue is growing at a faster rate than the average number of subscriptions — the latter number is up to 95.8 million, from 90 million last year, up 6% — suggesting that some of the price hikes instituted by digital service providers like Apple Music and Amazon Music have begun yielding results. (Increases from YouTube Music Premium and Spotify are too recent to be reflected in the first half of this year.)
Ad-supported streaming, however, is a different story. Total revenue from such services was essentially flat year-over-year, at $870 million, up just 0.6% from 2022. Digital and customized radio revenues were up 16% year over year, reaching $657 million; within that, SoundExchange distributions ticked up 7% to $498 million.
Overall, sales revenue reached $1.1 billion, up slightly from the same period last year, with the growth in physical sales offsetting a decline in digital downloads. Digital sales accounted for just 3% of revenues, and dropped 12% year over year to $225, with digital albums dropped 12% to $107 million and digital tracks declining 14% to $97 million.
Meanwhile, physical revenues of $882 million marked the highest level since the first half of 2013, growing 5% year over year. Vinyl continued to dominate, accounting for 72% ($632 million) of the sector, despite growing just 1.3% year over year, while CD revenue grew 14.3%, to $236 million. Vinyl, for the third year in a row, outsold CDs. But as a window into how prices are changing, unit sales of both vinyl (down 1.8% to 23.4 million) and CDs (down 17.2% to 15.1 million) both declined, despite those increases in the revenue derived from them.
“This report describes a thriving, growing music ecosystem that continues to reach new heights and shape our culture,” RIAA chairman/CEO Mitch Glazier said in a statement accompanying the report. “And it reflects the creative human genius and hard work of all the artists, songwriters, labels, publishers and services who make the music happen and meet fans and audiences where they are in today’s forward looking and innovative music community.”
September marks the 20th anniversary of the RIAA launching litigation against consumers in a bid to extinguish — or at least dampen — the flames of peer-to-peer (P2P) file sharing. The consumer litigation was part of a multi-pronged effort that targeted internet service providers, the P2P providers like Napster and Limewire and music fans. In early 2003, nearly 40% of internet users in the United States had used a P2P service to download music, or an estimated 54 million individuals. Upon the RIAA’s announcement of consumer suits, parents began asking their children what they were doing with those stacks of blank CDs; coverage of the pending litigation stifled file sharing before the first notice was filed.
Much has been written about the P2P era, but one thing is for sure: The vast majority of downloaders knew it was illegal. If there was any uncertainty in consumer’s minds, the RIAA litigation helped to clear it up. Perhaps that is the greatest legacy of the consumer litigation, which ended in 2008. The actual law was contested for some time, with arguments about technological innovation and the promotion of that technology for purposes of copyright infringement.
By the 10th anniversary of the consumer litigation in 2013, the record labels had largely won the battle against P2P file sharing. After settlement of the Limewire copyright infringement case in May 2011, the number of people using the remaining services rapidly fell in the United States, and by 2013 had dropped 60% from the peak in 2003. Litigation was one of many contributing factors. The P2P file sharing experience was awful for users, fraught with spoofed files, pop-ups, malware, incomplete and incorrect files, and other maladies. iTunes downloads revived the singles era by offering $.99 tracks. Pandora had been at the top of app store charts for several years, and Spotify was gaining momentum. By 2013, half the U.S. internet using population was streaming, and a handful were beginning to pay for subscriptions. The RIAA moved on to other battles, notably the YouTube “Value Gap.”
As the 20th anniversary of the consumer suits approaches, there has been a stunning reversal in progress in the war to limit consumer access to unlicensed music. An estimated 55 million people in the U.S. acquired or accessed “free” music files in the past year, according to MusicWatch research — the same amount as in 2003. What went wrong? There is an abundance of apps and sites that permit consumers to obtain unlicensed music. Apps that permit YouTube stream-ripping are widely available. Mobile apps available with “free downloads” frequently contain unlicensed content. The very social platforms that the industry relies on to promote artists also harbor unlicensed content. Unlike in the P2P era, the law is clear when it comes to these forms of copyright infringement and licensing requirements, though the DMCA still provides a shield to services that rely on content uploaded by fans.
The problem is the consumer. The teenager who knew that they were committing piracy while downloading In Utero from Limewire is now an adult. Today, they can be easily confused. Their Google music searches may include content that infringes on copyright. Same for the app store on their phone. The recent spate of Taylor Swift Eras tour livestreams on TikTok, while technically the same as a stream-rip of “Cruel Summer,” does not register the same in fans eyes. On top of the unlicensed content, MusicWatch studies indicate 20 million streamers are sharing logins to music streaming services.
The industry has not been silent. The RIAA has litigated against stream-rippers. Mixtape app Spinrilla was successfully sued for infringement and shut down in May. Sony and Universal just sued the Internet Archive for copyright infringement. And as an alternative, streaming companies offer family plans, which raise ARPU and blunt the impact of unauthorized account sharing.
Unlike 2003, however, the industry isn’t paying much attention to the infringing consumer. And why should it? There hasn’t been a collapse in revenues as was experienced during the aughts. Most infringing consumers are active streamers and many pay for a subscription — and a vinyl record or two. There’s not much reason to target music fans. But that doesn’t mean that more shouldn’t be done to educate consumers and further protect the rights of artists and copyright holders.
Russ Crupnick is the principal at market research firm MusicWatch.
In honor of Latin music’s explosive growth in the United States, the Recording Industry Association of America (RIAA) will recognize artists, label executives and policymakers who are “driving this rise across American music, culture and society,” it was announced Thursday (Aug. 31). For its annual RIAA Honors, which is set to take place Sept. 19 in […]
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.