In the wake of a raging pandemic, the Internet Archive has been working overtime to preserve internet history and expand the public’s access to digital library collections. That recently culminated in the creation of a National Emergency Library that made 1.4 million ebooks available to the public at a time when traditional libraries pose a health risk.
Increasingly, the organization’s reward has been a parade of headaches. Both from the entertainment industry and their loyal allies in Congress. Last week, the archive’s emergency library was forced to dramatically scale back the effort thanks to a publisher lawsuit and political pressure from politicians like North Carolina Senator Thom Tillis, who accused the organization of violating the country’s often draconian—and frequently ridiculous—copyright laws. Now Tillis is taking aim at another Internet Archive effort, the Great 78 Project.
The Great 78 Project is a communal effort geared towards the preservation, research and discovery of the 3 million 78rpm discs produced between 1898 and 1950. Often made from far more fragile shellac than the resin commonly used today, many of these recordings are fragile, and the digitization effort has created a historical archive of some amazing work. The organization’s overall album preservation effort was buoyed by the Internet Archive’s recent purchase of the entire 500,000 album catalog of Bop Street Records, one of Seattle’s oldest and most beloved record stores—forced to close due to the COVID-19 crisis. Enter Tillis, who in a new letter complains that both the Great 78 Project and the acquisition of the Bop Street collection could potentially run afoul of America’s aggressive copyright laws. “It is clear that these sound recordings were very recently for sale in a commercial record shop and likely contain many sound recordings that retain significant commercial value,” Tillis said. “This raises serious alarms about copyright infringement.” Tillis also complained that the Great 78 Project potentially violated the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), passed in 2018 to help modernize U.S. copyright laws for the internet streaming era. In his letter, Tillis demands that the Archive provide detailed evidence it isn’t violating copyright by July 10. But copyright experts approached by Motherboard aren’t quite sure what the fuss is about. “The statement about MMA not allowing for ‘streaming or downloading’ is very odd,” John Bergmeyer, Legal Director at consumer group Public Knowledge told Motherboard. “The MMA specifically allows for non-commercial ‘use’ of pre-72 sound recordings,” he said. “The ‘covered activities’ that MMA creates new liability for, but exempts noncommercial use from, specifically includes ‘permanent download, limited download, or interactive stream.’” In short, Bergmeyer noted that while there could be some thorny and minor flaws in the Archive’s implementation, the law specifically carves out exemptions for such efforts. Even if it didn’t, that’s a flaw with U.S. copyright law, not the Internet Archive’s proposal, copyright expert and Techdirt.com founder Mike Masnick told Motherboard.
“It's in that murky space where it's unclear whether or not some of it violates copyright law, but if it does, it would highlight yet another fundamental problem with copyright law in working against culture, rather than in support of it,” Masnick said. “Indeed, if anything, Tillis should work on fixing the law and rolling back copyright term extension that makes this so murky.” With the country facing record levels of unemployment, massive protests against racial injustice, and a raging pandemic, it’s unclear why Tillis’ top priority appears to be badgering a good faith internet preservation effort. His office did not respond to a request for comment as to whether Congressional resources would be better spent elsewhere. It's worth noting the RIAA originally alerted Motherboard Tillis' letter, but declined to comment on it. Masnick noted this is part of a broader effort by Tillis to expand the nation’s already controversial patent and copyright laws, including the Digital Millennium Copyright Act (DMCA).
“In Tillis' short time atop the Senate Judiciary Committee's IP Subcommittee, he has shown himself to be strongly aligned with legacy ‘maximalist’ interests on both copyright and patent law,” Masnick said. “He is seeking to rewrite the DMCA to make it even more in favor of legacy copyright interests and also introduced laws to expand patent eligibility massively.” With the nation reeling from an historic pandemic and the DMCA routinely under fire for already being an over-aggressive mess, copyright experts say Tillis’ priorities don’t really make a whole lot of sense.