The fourth part of the fair use test rests on whether the use of the work impacts the commercial market for the work.
Given these works are often:
- Not offered in their original form
- Would likely have little residual commercial value if so offered
- And, the article states, are only accessed by one researcher per month
Indicates that the research, educational, and cultural value from this use likely far outweighs the impact to the commercial use of these works.
Also, there are some odd fair use things, like the google books case, which may tilt the court in the archive's favor.
Here's a nice site that talks about fair use. https://fairuse.stanford.edu/overview/fair-use/cases/
However, "on average, each recording in the collection is only accessed by one researcher per month" seems to me like a dishonest way to present the data. Surely surely there are one or a few recordings in the project that are vastly more popular than others. That's always how it goes. So "on average" completely obscures how popular the most popular ones might be.
You might have a few hotspots, but there's a very tight upper bound on how many downloads of each item. Further, it argues that the overall collection has a very high research and preservation value compared to the total number of downloads.
Quite clearly what the plaintiffs are afraid of is that there are a few very popular works in there that they could be making real money from. There's no way to know this from the mean alone.
The companies have very successful legal departments. They go after the next lowest hanging fruit. They are just working, it's their job description to do this. This is why they will never stop, it never gets too absurd or overly unreasonable.
This was a good example:
https://rec.music.theory.narkive.com/y829eFoE/metallica-want... > Metallica are taking legal action against independant Canadian rock band Unfaith over what they feel is unsanctioned usage of two chords the band has been using since 1982 : E and F.
and:
> > We're not saying we own the E chord, or even the F - that would be ridiculous. We're just saying that together, people have grown to associate them with our music, and their continued use in the same song causes confusion, deception and mistake in the minds of the public.
The lawyers are simply aggressively[sic] exploring the limits of the law. They are not afraid to lose money if you play the E and F chord but it would be a nice victory if you couldn't.
In this IA case they are exploring a total shut down. I'm sure it again includes many works they don't even own the rights to. It seems equally sensible (or senseless) to fine and ban people from holding copyrights after repeatedly filling illegitimate take down notices.
Who knows, we might in stead end up auctioning the frequencies like with radio.
Their approach stands on applying the law as written: "This is mine and you can't have it, even if I don't really much care about it."
From the article
I believe they are arguing that the intent behind the digitization is fair use, as you say, but what I find interesting is they seem to argue that there is no loss of profit from their work, which is a valid point to raise - if this is all hypothetical exceptions can and should be made to the law.
Even if they don't have a case, say the copyright law is very tight and clear and there's no way this can skirt around it - they still can bring it to court, fight it, and lose until they get it overturned by the Supreme Court and they get a special status or the copyright law is amended. This is standard - it's how the 19th amendement was passed I believe, I'll look for a link.
Edit: to clarify, there is no damage to the copyright holders because the medium holding their work is impossible to be used to listen to their work by anyone but experts, like the IA
Edit 1: Here's what I was remembering - it's not an amendment, but it's neat!
https://lithub.com/how-ruth-bader-ginsburg-and-gloria-steine...
I don't think you are wrong about the risks to them in fighting the case with what looks to be such abundently clear IPR over the mechanical recording. But, I do think the wider fight about what "should" be the IPR here, is worth fighting.
That advocacy lies in the part of your comment which heads off the "RIAA is bad" fu.
I misplaced the 78 belt for my Pro-ject turntable during a move a few years ago and in the mean time found a copy of New World Symphony that I’ve been wanting to listen to.
Just learned shellac is resin produced by south asian bugs - used to do not only record but food glaze and varnishes.
I have also thought about looking for an old Victrola at an antique market and keeping them to play as a novelty, but it would really be just that.
A cursory glance suggests that BYU asserts the opposite (see Myth #11) https://copyright.byu.edu/copyright-myths.
I’m not saying those defences would actually work. Indeed, my non-lawyer gut-feel is they probably wouldn’t. But now I’m wondering if anyone has ever tried those arguments? And if nobody has ever tried them, I think there remains a chance they might succeed, even if that chance is small. And if they ever did succeed, that would effectively amount to “defend it or lose it”, although the owner technically would not have lost the copyright, just (some of) their ability to sue infringers.
The page you've linked says: "Copyright protection is effectively never lost, unless explicitly given away or the copyright has expired. However, if you do not actively defend your copyright, there may be broader unauthorized uses than you would like."
How on earth did you read that and come to the conclusion that BYU 'asserts (sic) the opposite' ?
There is the doctrine of laches which might be applied in general to an excessive delay in asserting an equitable right, but there is no failure-of-defence loss of copyright under US or generally Berne Convention statutes globally. I've most frequently seen laches raised in the context of patent enforcement. <https://www.law.cornell.edu/wex/laches>
This is rampantly false and misleading information.
If people want to watch a video (assuming they don't pirate) they use the video service that provides them that video.
If people want to use a clip from that video in some other production (fair use scenario applies here) they can't copy it from the video service because of DRM.
I'm also a little sad that this disclaimer is even needed. I think it says something about how the character of HN has changed in the last ten years--there's no longer an assumption that the people on the other end of the wire assume curiosity and good will. There's a lot more heat here these days.
And maybe people are getting sick and tired (and banned and flagged) of "good natured discourse" being entirely windowed by the latter.
>maybe people are getting sick and tired (and banned and flagged) of "good natured discourse" being entirely windowed by the latter.
I know it feels cathartic, but "record company bad" is neither discourse, nor particularly good natured. It's more reflective of how forums have shifted by twitter's popularity into being "microblogs". You don't really talk "to" people on Twitter, you throw out your tweet among a sea of tweets.
A shame, because I hate twitter precisely because of that.
HN is not an activism platform.
But whatever, those comments get pushed to the bottom, and I thought the top responses were really helpful (I didn't previously know about the details of the fair use tests).
>(a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
>(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Note that "computer program" here is in reference to any and all forms of digital data thereof. The digital copies made from the records concerned are "computer programs".
Sony, et al. allege that Internet Archive's public redistribution of their digital copies of the records do not fall under the archival exception.
If all Internet Archive does really is just archiving, none of the rightsholders would have standing to sue or otherwise get in their way.
[1]: https://www.law.cornell.edu/uscode/text/17/117
Obligatory IANAL.
Seems pretty obvious to me that, just with respect to the archival exception, that Sony et al is correct here. The issue is not with IA making backup copies of these works - the issue is with making copies and making them available for free over the Internet that is the issue at hand.
No, in that case you need permissions or licensing from the rightsholders to resell or otherwise profit en masse from their work.
>Zero access except for the person who created the archive?
This is, fundamentally, what archiving something means. It is legal for someone to rip a music CD that they own for archival purposes, but it is illegal to share the resulting archives.
>The archivist needs to vet potential accessors for certain motives?
One facet of fair use is whether the use is for academical, educational, or other non-profit purposes. So yes, the archivist needs to vet potential accessors for certain motives.
>Only offer access to small samples?
Another facet of fair use is that only the minimum portion required from a given work is used for a given purpose under fair use. For example, quoting certain passages and only those passages in a book to discuss them in a review or critique, etc.
I completely disagree, you can't separate archiving from the accessibility of the content, the whole point of why you are archiving something is to make sure it's not lost and future generations can still access it in the first place!
Boring, flamey, predictable activist/political content has absolutely no place on HN.
Your prediction was on point, but we shouldn't have to head off these extremely repetitive and unproductive tangents every time - they should be flagged and downvoted into the ground so that they stop coming up in the first place.
I want 2010 HN back.
The internet as a whole has diverged from assuming good faith, between polarizing politics, the rapid increase of bots, and general shift of popular sentiment over the decade. And there's also a lot more people online, so it's much harder to moderate for that even if you wanted to.
It's an inevitability since this site's moderation hasn't scaled with its user base.
I want the invite-only system of Lobsters, with the actually good moderation of HN. I think that would help with some of the issues, here and on other platforms.
I really hate copyright and have engaged in heated discussions about the matter here before but still refrained from replying to GP because I realized I too would like to know what legal arguments could be used to defend Internet Archive.
It's difficult to be curious about copyright. For many of us that matter is already settled and only strong opinions remain. This post still managed to make me curious though. It's great.
By doing something that's technically illegal but antithetical to the spirit of public good, IA is highlighting how perverted copyright law has become.
You want people to refrain from criticizing record companies greed but there's a clear argument that highlights this as the main motivation. Artists who own their own copyrighted works sometimes buy up old media of themselves and refuse to license it for fear of impacting the image they've created for themselves (or just because they're embarrassed). Very much different from this scenario, record companies are preventing use in a way that looks like extortion.
In my view, it's not that there isn't an argument to made that this is an illegal act, it's that there's a deeper question of whether it should be. Sometimes new laws are changed by breaking them.
Seriously, though, this thing where the corporations are trying to wring blood from a stone has to stop.
And why should we need to confine our replies to a narrow and arbitrary framework of existing case law, when there is so much more at play?
"Rich companies abuse copyright" - no shit.
"Copyright is unreasonably long" - no shit.
"It's absurd to think copyright needs to be that long to incentivize creation" - no shit.
Putting a sarcastic or "witty" spin on the above types of arguments still gets the same "no shit" response from me.
I have not read a single response of that form that I find interesting in the slightest, or adds new information, or makes an insightful point, and I wholeheartedly agree with the sentiment!
Because the user wants responses from that narrow and arbituary framework. You are free to make or respond to another thread to look in another lens.
And yet HN almost universally gives them a pass on that epic scale privacy abuse, which would get them demolished in the EU these days.
There is a huge gap between "you shouldn't be able to use my data for things I did not consent to in order to commodify me" and, "I should be able to force people to get rid of any info about me that I don't want them to have, even if I made it public".
I would[2] put good money on "will never happen"[1].
[1] Or at least "any chance of it happening are on a timescale long enough that human civilisation will ruin itself well before we get there".
[2] But for the fact this is a long term bet and I am already old.
The problem is the RIAA knows this, because they have expensive lawyers, and they try to avoid proceeding with a suit unless they think their victim has made a mistake. So you have to get close enough to the line to at least make them think that, but then there is the risk that the judge thinks that too. Yet what alternative is there?
But sadly most major companies are public anymore.
I can think of a much more prudent way to do that, namely, by legally segregating their non-contentious archiving (the wayback machine et al) from their legally contentious archiving such that legal threats to one entity cannot disrupt the other entity.
Also, the wayback machine is not a non-contentious thing. They're making copies of everything on the internet and then distributing them to the public. It's all content that was freely available to begin with, but as far as I know that has never been tested in court.
You think them saying 'we understand that the web archive is a valuable resource of data which isn't under legal attack, and to best serve the needs of the public we'll ring-fence that resource by spinning it off as a separate legal entity that won't be affected by any legal action that may be taken against us while we fight a (more) contentious battle' would result in less sympathy for them?
How so?
Yes, but that entity is clearly violating the law and is archiving material that is already (by definition) archived by somebody, just not publicly accessible. This strategy is about preserving the more valuable non-alternatively-archived data.
> Even the act of doing it would imply that they expect to lose.
They're clearly violating the law, they've lost already on a similar case, if they don't expect to lose they should fire their counsel.
How useful to the public is it to have it archived but not publicly accessible?
> They're clearly violating the law, they've lost already on a similar case
They're not clearly violating the law, they're doing something where the law isn't established (which is the point), and the other case is subject to appeal.
I worry that they're going to end up, as with Lessig, ending up in a case that creates terrible fucking case law that screws up copyright law even more than it already is. Like, if they win, it will be by making it impossible to enforce copyright for anyone who can't show substantial profit, zeroing copyright for anyone who isn't Oracle or Sony. Or they'll do such a shit job of defining what an archive or public interest or lending library looks like that they'll destroy the legal protections that libraries and archivists currently enjoy.
> In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
> 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
> 2. the nature of the copyrighted work;
> 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
> 4. the effect of the use upon the potential market for or value of the copyrighted work.
So, everything in the article is relevant to 1, 2, and 4. In fact, besides element 3, to me this usage strongly matches each of these criterion. Fair use is interpretable, though, so the outcome of the case if it goes to trial will be dependent on the judge.
How else would you interpret their behavior though? They are hundreds of thousands of dead artists on this archive and they specifically attack the ones which made money.
The conclusion can only be that those record companies are just after the money, I don't see any other possible one from this behavior.
their goal isn't the analyze the company's intents. It's to understand what legal arguments IA has.The cards are dealt and the goal here isn't to change copyright law at large. At least, not at this stage.
Copyright expires after certain amount of years, depending on the country and the law?
> My guess is that they are arguing fair use, but I just don't see how that applies here when they make copyrighted works available, for free, over the Internet.
To start with, those companies hold "copyrights" because people who actually performed or wrote the material didn't have possibility for various reasons to retain those copyrights for themselves. Just that fact is morally disgusting in itself.
> Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards
What Sony & Co do in this matter, and with the entire "copyright" industry, is making billions of profit without hardly giving something back to original copyright owners. Perhaps we should make a law that makes it impossible to transfer the copyright to greedy industry to start with, which would makes such nonsense like this one impossible.
> I'm not a lawyer, and I'm just interested in trying to understand if they have any legal defense that isn't going to get laughed out of court.
Perhaps you are not a lawyer, but looking at your comment, it looks to me like you are an afforded troll by the company to spread out the company propaganda on the internet and social media sites. I can't tell for sure, I might be wrong, but that is how it looks to me.
Of course, I completely agree with that :-).
> Copyright expires after certain amount of years, depending on the country and the law?
Yes. In case you didn’t notice, this is specifically about a case in one country, for things that are still under copyright.
> it looks to me like you are an afforded troll by the company to spread out the company propaganda on the internet and social media sites. I can't tell for sure, I might be wrong, but that is how it looks to me.
No, it doesn’t look like this at all. You are egregiously wrong.
Op asked us to not tell him they are "greedy bastards", and he asks that because he knows they are. Op knows he is wrong for the obvious reasons and asks us to not see him as "wrong" and to close eyes and pretend those reasons just do not exist. It is just stupid.
> You are egregiously wrong.
Perhaps I am wrong, perhaps I am not. I have drawn my conclusion after reading all of the comments and seen all of his replies and link he posted, that is how I perceive them.
With the digital (and maybe Bigdata/ML) age, copyright protections need some revisions & broadened scope of "fair use". But digitizing and making media items available over internet face the arguments that piracy sites get accused of. IA is a respectable agency, and these media is from 50s & 60s. But the optics of it from legality remains the same unfortunately. I wouldn't also believe these having no commercial value. Among the collection, I found popular artists such as Louis Armstrong - who I still listen to over Spotify/Apple.
IA would probably cut some losses if they disable all streaming or only provide 30sec clips (as preview), while keeping the music archive more restricted. Not that I like this proposition, but if we are serious about preserving the legacy of 78rpm, some more consideration could be useful. Copyright laws in their current form is (unfortunately) unforgiving to IAs efforts in this context.
This system as I understand it doesn't apply to any of their non-book collections (not to mention it only applies to files that IA has uploaded themselves, the archive also accepts user submissions).
Fair Use is very unlikely to apply here I think. The fair use test looks in part at the question of how much of the copyrighted work is distributed (ie. A radio program promoting a song with a short jingle has a much more solid defense than others.) and "all of it" isn't a good defense. They could've put these recordings under their usual lending system, but they didn't and that probably makes them liable.[1]
For reference, I am not a lawyer, so if you think this is legal advice, go talk to an actual lawyer.
[0]: The ebook lawsuit they recently lost was because they disabled all lending restrictions for the pandemic, triggering the lawsuit. The lawsuit itself is ballooned with other crap because the usual nonsense from publishers is a thing, but the grounds for the lawsuit were unfortunately very solid.
[1]: That said, this lawsuit was probably triggered because the judge in the ebook case partially stripped IA of its library protections. The record companies probably are trying to arrange a similar removal of protections from IA, hence why this specific collection was targeted.
What's working in their favour:
1. The intended use of the copyrighted work. The recordings are not pristine, culturally important, and have limited commercial consumption potential in their available form.
2. Nature of the copyrighted work, i.e. Is the use to further creative expression(yes) or consumption(no). IA's own access statistics and duration of the project can strengthen this point.
3. Potential market/value of the copyrighted work: This will play significantly in their favour as the records are dated, rarely sold and not pristine/remastered.
What isn't working in their favour:
1. Unvetted self-serve distribution over the Internet: However this case is an excellent opportunity to extend the face-to-face education exception to self-serve online educational resources. This would be a reasonable modernisation of the clause, and would still provide a clear boundary between the education and commercial use purposes.
Would appreciate it if folks would abstain from responding with how the record companies are greedy bastards, or how the IA is doing great work, or how copyright protection has strayed from its original goals of encouraging innovative new works to become a victim of rent-seeking behavior, or that the law itself is unjust here. All of that I wholeheartedly agree with. I'm not a lawyer, and I'm just interested in trying to understand if they have any legal defense that isn't going to get laughed out of court.