Record Labels: ‘Hisses & Crackles’ Are No License to Copy & Digitize Old Records

The Internet Archive is widely known for its Wayback Machine, which preserves copies of the web for future generations.

 

These archiving efforts, which started decades ago, will become more valuable over time. The same could apply to IA’s other projects, including the digitization of old books and records.

 

Six years ago, the Archive began archiving the sounds of 78-rpm gramophone records, a format obsolete today. In addition to capturing their unique audio, including all ‘crackles and hisses’, this saves unique recordings for future generations before the vinyl or shellac disintegrates.

 

The ‘Great 78 Project‘ received praise from curators, historians, and music fans but not all music industry insiders were happy with it. Several record labels including Sony and UMG, sued the Internet Archive for copyright infringement in Manhattan federal court last year.

IA’s Motion to Dismiss

A few weeks ago, IA responded to these allegations with a motion to dismiss. According to the Archive, many of the claims are simply too late, as they supposedly point to infringements that occurred over three years ago. The record labels were aware of this, they allege, as the RIAA sent a cease and desist letter on their behalf but took no further action at the time.

 

The motion is centered around the statute of limitations but IA also stressed the importance of their archiving efforts, hinting that it would be eligible for a fair use defense.

 

Specifically, the motion explained that the ‘Great 78 Project’ aims to systematically archive these old records, including the hisses, crackles and pops, to preserve them for future generations.

 

“The specific quality of the sound, including the peculiar and distinct crackles and other imperfections that are a hallmark of this antiquated medium formed an indelible part of American culture for many decades,” the motion reads.

Record Labels Respond

The record labels responded to this motion a few days ago, letting the court know that they see no reason to dismiss any claims at this stage. The RIAA letter that IA relied on didn’t mention any dates and shouldn’t be construed as knowledge of any specific infringements, they counter.

 

“[T]he letter cannot demonstrate that Plaintiffs were aware, or should have been aware, that Defendants infringed any of the particular works in suit at the time the letter was sent,” their reply reads.

 

The labels listed a total of 2,749 musical works, which are good for a potential statutory damages award of more than $400 million. None of these claims should be dismissed at this stage, they argue, as discovery could show that they are timely.

 

“Later in the case, discovery will adduce the multitude of dates pivotal to the statute of limitations analysis, including: all of the dates Defendants created copies of the sound recordings at issue […] and the dates that the Defendants distributed and/or transmitted the sound recordings at issue to others.”

 

The Archive’s motion to dismiss is limited to the statute of limitation argument but the record labels also picked up on the “hisses and crackles” references, which they couldn’t ignore.

‘Hisses and Crackles’

The music companies are convinced that IA’s archiving of obsolete records is illegal, equating it to a massive pirate streaming library.

 

“Defendants have created a massive online storefront providing digital copies of thousands of these protected sound recordings to anyone to stream or download for free. The Great 78 Project is illegal,” they state.

 

The labels further believe that the defendants are “dreaming up baseless arguments” to justify their activity. This includes the value placed on the unique sound of old records, which the music companies label the ‘Rice Krispies’ argument.

 

‘Rice Krispies’
 

These sounds are not a feature, but a bug, the music companies counter. They are audible imperfections, a sign of decaying physical records, which were never intended to be heard.

 

“When these recordings were released, they did not have all of the same hisses, crackles, and pops they have today. Many of those flaws result from the brittle discs’ many decades of age,” the labels note.

 

“Contrary to Defendants’ arguments, recording the hisses and crackles does not preserve how the records sounded on release. Instead, it anachronistically captures how an older format behaves after more than seventy years of aging.”

Fair Use?

Today, many people have come to appreciate these unique sounds. IA stressed that, without digitizing them, they may be soon lost forever. As such, its archiving effort should be able to rely on a fair use defense.

 

While the court is not yet being asked to consider the fair use aspect, the labels reject IA’s line of reasoning.

 

“Fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed, and performed in something other than its cleanest sound. If ever there were a theory of fair use invented for litigation, this is it,” they write.

 

All in all, it’s clear that both parties have a very different take on the ‘Great 78 Project‘. First, the court has to decide whether any claims will be dismissed based on the statute of limitations argument. After that, we will likely see more ‘fair use’ fireworks.

 

The music companies also responded to a separate motion to dismiss from the Kahle-Austin Foundation. The foundation argued that there are no grounds to include it in the lawsuit, as it only helped to fund the Internet Archive, but the labels argue that as a named sponsor it knew of the infringements.

 

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A copy of the record labels’ response to IA’s motion to dismiss is available here (pdf). The response to the Kahle-Austin Foundation can be found here (pdf)