On Thursday, music labels sought to add nearly 500 more sound recordings to a lawsuit accusing the Internet Archive (IA) of mass copyright infringement through its Great 78 Project, which seeks to digitize all 3 million three-minute recordings published on 78 revolutions-per-minute (RPM) records from about 1898 to the 1950s.
If the labels’ proposed second amended complaint is accepted by the court, damages sought in the case—which some already feared could financially ruin IA and shut it down for good—could increase to almost $700 million. (Initially, the labels sought about $400 million in damages.)
IA did not respond to Ars’ request for comment, but the filing noted that IA has not consented to music labels’ motion to amend their complaint.
Archiving… or stealing?
Labels told the court the new complaint was warranted, since these 493 new recordings are evidence of alleged ongoing infringement that they claimed occurred after the case was filed in 2023. If the motion is granted, the recordings at issue in the case would then total 4,624, potentially each worth $150,000 in damages in an IA loss.
The case still has a long way to go before a verdict will be reached and IA’s fate potentially decided. IA continues to argue that the Great 78 Project is a fair use under copyright law, and not everyone agrees that the maximum potential damages will be awarded, even if IA loses. In September, Sam Trust, a music-publishing vet currently overseeing the Doris Day estate, told Rolling Stone that the potential damages that labels seek are “absolutely absurd,” suggesting that he “would be surprised if it’s $41,000 worth of damages.”
But the labels’ lawsuit likens the Great 78 Project to a Spotify or Apple Music rival, allegedly stealing royalties from artists by providing streams of recordings that publishers claim they make available through proper channels. They dispute that the Great 78 Project serves as a legitimate archive, accusing IA and its founder Brewster Kahle of “willfully” violating copyright laws and “seeking to have old recordings pass into the public domain.”
Some estates for artists whose recordings are included in the lawsuit have likewise criticized IA. However, more than 850 current musicians have defended the Great 78 Project, demanding last December through a campaign organized by Fight for the Future that music labels drop the lawsuit.
Lia Holland, a campaigns and communications director for Fight for the Future, told Ars that labels claimed at that time that “destroying the Archive was not their intention.” But their filing this week suggests that response wasn’t genuine.
“It’s not a question of intention here—it’s a question of math, and the math just got even more dire for the Archive with all of these additional songs added,” Holland said. “These are old recordings preserved and made accessible out of love of the music and desire to study it for generations to come.”
Some sound recording archivists and historians also continue to defend the Great 78 Project as a critical digitization effort at a time when quality of physical 78 RPM records is degrading and the records themselves are becoming obsolete, with very few libraries even maintaining equipment to play back the limited collections that are available in physical archives.
They push back on labels’ claims that commercially available Spotify streams are comparable to the Great 78 Project’s digitized recordings, insisting that sound history can be lost when obscure recordings are controlled by rights holders who don’t make them commercially available.
Ars could not immediately reach music labels’ lawyer for comment.
Labels will regret attack on IA, archivist predicts
The Great 78 lawsuit is clearly focused on sound recordings, with music publishers claiming IA’s ambitions to preserve music history are a “smokescreen” to justify alleged infringement. They claimed that IA’s project isn’t fair use for educational purposes because the Great 78 Project’s account on X (formerly Twitter) would announce recordings were available without sharing “historical facts associated with the recordings; it simply advertised that the recordings were freely available to download or stream and encouraged users to go and obtain them.”
But David Seubert, who manages sound collections at the University of California, Santa Barbara library, told Ars that he frequently used the project as an archive and not just to listen to the recordings.
For Seubert, the videos that IA records of the 78 RPM albums capture more than audio of a certain era. Researchers like him want to look at the label, check out the copyright information, and note the catalogue numbers, he said.
“It has all this information there,” Seubert said. “I don’t even necessarily need to hear it,” he continued, adding, “just seeing the physicality of it, it’s like, ‘Okay, now I know more about this record.'”
Music publishers suing IA argue that all the songs included in their dispute—and likely many more, since the Great 78 Project spans 400,000 recordings—”are already available for streaming or downloading from numerous services.”
“These recordings face no danger of being lost, forgotten, or destroyed,” their filing claimed.
But Nathan Georgitis, the executive director of the Association for Recorded Sound Collections (ARSC), told Ars that you just don’t see 78 RPM records out in the world anymore. Even in record stores selling used vinyl, these recordings will be hidden “in a few boxes under the table behind the tablecloth,” Georgitis suggested. And in “many” cases, “the problem for libraries and archives is that those recordings aren’t necessarily commercially available for re-release.”
That “means that those recordings, those artists, the repertoire, the recorded sound history in itself—meaning the labels, the producers, the printings—all of that history kind of gets obscured from view,” Georgitis said.
Currently, libraries trying to preserve this history must control access to audio collections, Georgitis said. He sees IA’s work with the Great 78 Project as a legitimate archive in that, unlike a streaming service, where content may be inconsistently available, IA’s “mission is to preserve and provide access to content over time.”
“That ‘over time’ part is really the key function, I think, that distinguishes an archive from maybe a streaming service in a way,” Georgitis said.
An ARSC member and IA supporter, Seubert agreed with IA that any music fan wanting to listen to songs “for entertainment purposes” would go to Spotify or Apple Music, rather than IA, which is more for “people who for whatever reason need to take a deep dive into some obscure corner of recorded sound history.”
To Seubert and IA fans, there seems to be little evidence that the Great 78 Project is meaningfully diverting streams from labels’ preferred platforms. Bing Crosby’s “White Christmas” is perhaps the most heavily streamed song in the case, with nearly 550 million streams on Spotify compared to about 15,000 views on the Great 78 Project. Most of the other songs at issue were viewed at most “hundreds of times” on IA, music labels’ complaint said.
“The Internet Archive is not hurting the revenue of the recording industry at all,” Seubert suggested, while noting that his opinions don’t “mean squat” since he’s not a lawyer. “It has no impact on their revenue.” Instead, he suspects that labels’ lawsuit is “somehow vindictive,” because the labels perhaps “don’t like the Internet Archive’s way of pushing the envelope on copyright and fair use.”
“There are people who, like the founder of the Internet Archive, want to push that envelope, and the media conglomerates want to push back in the other direction,” Seubert said.
In its efforts to preserve sound history, ARSC has worked with lawmakers to adapt copyright laws. That included lobbying for certain aspects of the Music Modernization Act, which established a licensing system for digital streaming services and which publishers accused IA of willfully violating. That law brought “pre-1972 sound recordings partially into the federal copyright system” and provided “federal remedies for unauthorized use of sound recordings,” the Copyright Office noted.
As physical recordings become harder to access and manage, ARSC plans to continue seeking “to influence the development of copyright laws to secure liberties for libraries and archives to effectively manage their recorded sound collections and to harmonize copyright law,” Georgitis said.
“It is possible to change and develop copyright law to both protect copyright and to allow use,” Georgitis said. But “it’s a battle, especially when deep-pocketed corporate interests are on the other side and not maybe necessarily giving as much credence to the public interest,” he said.
Seubert said that IA provides popular archival services beyond the Great 78 Project, noting that a potential shutdown would endanger the Wayback Machine, which archives snapshots of webpages over time. He suggested that labels likely use the Wayback Machine regularly and that they may come to “regret” efforts to bury IA in legal fees.
“They’re going to regret it,” Seubert predicted. “Not financially or anything, but just from a historical perspective, the Internet Archive is valuable for all of us.”
For their part, publishers have alleged that just because IA engages “in a range of activities not at issue in this action,” such as the Wayback Machine, “those activities cannot cloak their patently illegal conduct here.”