After publishers, now recording companies want to stop the Internet Archive from sharing culture

Back in March, Walled Culture wrote about the terrible ruling by US Judge John G. Koeltl that the Internet Archive’s Controlled Digital Lending programme was not a fair use. The Internet Archive has said that it will appeal against the ruling, but in the meantime it has jointly proposed with the publishers involved an agreement for what limitations should be imposed on its ebook lending service. Under this agreement, the involved publishers’ commercially available books will be removed from lending. The Internet Archive reflects on the impact of the agreement:

Broadly, this injunction will result in a significant loss of access to valuable knowledge for the public. It means that people who are not part of an elite institution or who do not live near a well-funded public library will lose access to books they cannot read otherwise. It is a sad day for the Internet Archive, our patrons, and for all libraries.

However, in a small but important legal victory for common sense, Judge Koeltl has agreed to follow the Internet Archive’s reasoning in his consent judgment that the definition of a ‘covered book’ is limited to only “those books published by the four publisher plaintiffs that are available in ebook form”, as the Authors Alliance explains.

But as if to confirm that enough is never enough for the copyright industry, the world’s largest record labels have now filed their own lawsuit against the Internet Archive and others for the Great 78 Project, which:

has been in operation since 2006 to bring free public access to a largely forgotten but culturally important medium [78 rpm records that are 70 to 120 years old]. Through the efforts of dedicated librarians, archivists and sound engineers, we have preserved hundreds of thousands of recordings that are stored on shellac resin, an obsolete and brittle medium. The resulting preserved recordings retain the scratch and pop sounds that are present in the analog artifacts; noise that modern remastering techniques remove.

The details of the lawsuit hinge on a slightly obscure aspect of US copyright law.  Over on Techdirt, Mike Masnick provides a good explanation of the recording companies’ argument.  The key point is that the Great 78 Project is preserving culture that is at risk of being lost because of the fragile nature of 78 rpm records.  It is not trying to produce perfect copies for casual listening – the digital versions include all the pops and hisses that are typical of old shellac records.  As Brewster Kahle, who set up the Internet Archive (and whose Kahle/Austin Foundation supports this blog) is quoted as saying:

When people want to listen to music they go to Spotify. 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.

Indeed, it seems highly likely that the Great 78 Project will encourage people to sign up to commercial streaming services in order to hear cleaned-up versions of records.  But the fact that this research project will help drive sales is irrelevant to the copyright world.  The latter’s key concern is control: it must always have the final say about how material is accessed.  A central theme of Walled Culture the book (free digital versions available) is that the copyright world has always preferred to harm itself commercially rather than to allow people to access and use copyright works as they wish, not as the companies have decreed.

If, as is sadly possible, the Internet Archive loses this lawsuit as it took a first hit in the one brought by publishers, there will be a number of serious consequences.  The most obvious ones: people won’t be able to listen to digital versions of rare recordings, which may be lost forever if the physical 78 rpm records break before they are digitised, and scholars won’t be able to study them.

Perhaps most worryingly, it’s possible that the recording companies will demand a massive payment from the Internet Archive for daring to share the joy of scratchy old recordings in this way.  At best, that would mean that the uniquely valuable services and activities of the Internet Archive would be curtailed.  At worst, it might even mean that what Mike Masnick rightly calls “the world’s greatest library”, and whose stated mission is providing “Universal Access to All Knowledge”, would be forced to close down completely.  If ever that terrible event came to pass – and let’s hope it doesn’t – it would stand as the selfish copyright world’s ultimate crime against culture and creativity.

Featured image by Internet Archive.

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