Have you ever heard of The Wayback Machine? The website, an initiative of the nonprofit Internet Archive, is a vast repository of old web pages (916 billion and counting!), texts, video, audio, software, and images. Essentially, it acts like a digital library, offering people access to a huge collection of older material – some of which is not available anywhere else.
One of the biggest things the Internet Archive does is maintain a record of lots and lots of web pages that no longer exist outside the Archive. These are pages where information was edited or the page was completely removed, leaving no record of what was there.
Many of these pages have little value other than for the people who created them or as a sort of anthropological “dig” of that period in history. However, the Archive also contains pages where businesses, politicians, and other public figures presented one set of information and then later altered it. As such, the Archive serves a very important purpose in maintaining an accurate, factual record of what was actually said and done online.
Why is that important to know right now? Because there is currently a music copyright case against the Archive that could force the nonprofit to shut down for good.
The Claim: $600 Million for Music Copyright Violations
A little while back, the Internet Archive began what they call the Great 78 Project. The idea is to find and preserve 78rpm records largely created from 1898 to 1950. Most of these records are rare and used only by a small number of researchers and music collectors. To preserve them, the Archive creates a digital copy and then makes that copy available through their site.
The problem? While some of these works have moved into the public domain, others are still protected by copyright. Because of this, Universal Music Group took issue with the Archive using them without permission and has filed a lawsuit seeking $600 million in damages.
As laid out by the Recording Industry Association of America (RIAA), the argument is such:
“Congress took decisive action to protect pre 1972 recordings in the Music Modernization Act…Mass scale copying, streaming, and distribution of the thousands of pre 1972 recordings are blatant violations of those established laws.”
Basically, the RIAA is saying that the Archive has no right to make and distribute copies of music protected by copyright.
Not the Internet Archive’s First Rodeo
This is not the first time the Archive has faced a copyright infringement lawsuit. In March 2020, the nonprofit launched the National Emergency Library as a way to provide people access to digitized copies of books that they were otherwise unable to get with many libraries shut down during the pandemic.
The Archive had been running a digital lending program for years called the Open Library. What changed with NEL, was that the Archive stopped restricting their scanned books to one person at a time, allowing numerous users to have access simultaneously.
As you might imagine, it did not take long for the major publishing houses to react – in June 2020, they filed a lawsuit against the Archive, arguing that what they were doing was “tantamount to piracy.” In March 2023, a district court ruled in the publishers’ favor, and in September 2024, this ruling was upheld. The Archive negotiated undisclosed terms with book publishers and had to shut down the NEL program.
Why Does That Earlier Case Matter?
The short version is that there are a lot of similarities between the Archive’s previous battle with book publishers and their current one with the music industry. Because of this, there is a fairly decent chance that the organization could lose this case on legal merit.
However, this does not necessarily mean that the Archive would have to pay the full $600 million. That amount is based on statutory damages that allow up to $150,000 per violation. If one believes Brewster Kahle, founder and director of the Internet Archive, “all of the things they’re complaining about would be in Spotify rates because people don’t listen to crackly old books, records. It would be about $10.”
In other words, while it is understandable that UMG and others would want to protect work over which they hold a copyright, there could very well be a bit of overreach here.
All of this raises lots of interesting questions when it comes to libraries and other archives created to preserve and provide access to existing works. How far do the rights of creators and publishers go when balanced against the mission to inform and educate? This is something that intellectual property law is constantly negotiating and renegotiating, and that likely will not end anytime soon. If you have any questions about the legality of using work protected by copyright, the best thing to do is consult an experienced IP attorney.