When RIAA Attacks
Why would the majors rattle their sabres at a non-profit online institution?
Earlier this week, a group of music rights holders, including UMG, Sony and Concord, filed a $412M lawsuit to defend their IP against infringement from a major threat. Nope, it’s not Twitter, the social media platform worth between $15B-44B (ask Elon) that the majors sued earlier this summer for $250M. And it’s not a generative platform like OpenAI (valued at $29B). trained on millions of copyrighted songs to create its own musical deepfakes.
The defendant in this suit is Internet Archive, an SF-based 501 (c)(3) organization with an annual operating budget of just $36M. Why would these global IP giants take aim at a spunky online library best known for its archive of 828 billion old web pages — the Wayback Machine — with a lawsuit 11x the non-profit’s total balance sheet?
According to a statement given to Rolling Stone by the RIAA, the Internet Archive committed “mass scale copying, streaming and distribution of the thousands of pre-1972 recordings identified in the complaint — all of which are commercially available on multiple legitimate streaming services.” Some of these recordings are works by Frank Sinatra, Thelonious Monk, Ella Fitzgerald, Billie Holiday, Miles Davis and Louis Armstrong — all artists whose catalogs maintain significant value.
But here’s the rub, the infringements in question occur as part of Internet Archive’s Great 78 Project, an online archive for “the preservation, research and discovery of 78rpm records.” In other words, while the master recordings of the infringing music may, in fact, be available on contemporary platforms, the distinct sonic qualities of 125-year-old cylindrical recordings and highly fragile 78RPM discs deserve to be preserved in situ. And Internet Archive said as much in its response to the lawsuit.
So who’s right? The law appears to be on the side of the labels and publishers, who cite the extended legal protections granted to pre-1972 recordings by the Music Modernization Act of 2018. But there could be a loophole.
The federal statute includes an exception for noncommercial use of recordings created before 1972. As a non-profit that stays in business through donations and grants, the Internet Archive could be protected if it followed the rules for receiving an exception.
One would hope that IA did its due diligence in getting the prescribed protection from the U.S. Copyright Office, especially given that the Fed’s own effort to create a similar educational audio archive via the Library of Congress has only managed to upload 16,000 recordings into the National Jukebox since it was mandated by law in 2000, compared to the 400,000+ recordings captured by the Great 78 Project thus far.
But the bigger question is, why would the labels seemingly want to crush a beloved-if-niche remnant of the pre-millennial internet? It can’t be the money since Internet Archive could never afford to pay even if it lost. The first rule of lawsuits is that you only sue entities that have money. In fact, the labels could end up spending more on legal fees than they could recover.
There must be a larger strategic move at play. A reinforcing of legal rights in a time when existential threats with ill-defined legal protections do exist, perhaps? Or maybe some lawyers are just looking to increase their billings and bonuses — historical integrity be damned.
It’s easy to take shots at the industry when they do things like this. You can hear the echoes of Napster vs. Metallica every time the RIAA seems to punch down. But assuming good intent, we wonder if any of our readers have any insights as to why this lawsuit was allowed to move forward.
Feel free to speculate in the comments or DM us with the insider info.
TAKEAWAYS
Salient statements from this week’s music news.
1. Rights Reversions Could Stoke the Catalog Investment Market
Musicians’ ability to reclaim their copyright after 56 years is ingrained in U.S. law. But the results are rarely as simple as it seems.
Takeaway: Many artists have attempted to sue major labels for their responses to termination notices — so far almost always unsuccessfully.
2. Why Isn’t Hip Hop Conquering Live Music as It Has Streaming?
A new study claims “only 12% of live music fans chose hip hop among the genres they see live.”
Takeaway: Unlike other genres, hip hop acts are not going to make their way to the top by grinding it out on the live circuit. They have a much better shot at success through building their profile online.
3. SoundExchange Sues SiriusXM Over Alleged $150M in Unpaid Royalties
The suit accuses Sirius of overestimating web streaming revenue, with its lower royalty rates, compared to traditional satellite radio payments.
Takeaway: The difference in how royalties are calculated is largely due to the fact that satellite radio services don’t know how many listeners there are for a broadcast of a particular song, while webcasting services know exactly how many times a particular webcast has been streamed.
4. What It’s Like to Attend an Acid House Rave – in Virtual Reality
A new at-home VR experience is promising to take wannabe ravers back to the heyday of UK acid house.
Takeaway: In a dingy warehouse, Joey Beltram’s 1990 track Energy Flash pulses through my headset and the haptic vest vibrates on my chest, recreating the familiar feeling of being at a gig where the bass is so loud you can feel it in your entire body.