Just wanted to say I very much appreciate your thoughtful response. I wasn't aware of the details on the 4 tests of fair use, and your comment led me to some helpful searches. For anyone else who is interested: https://nwtc.libguides.com/c.php?g=43772&p=7188025

Couldn’t one argue that while there’s _minimal_ commercial viability of this work now, it’s still not zero? And that by making these available they could make it zero?

Zero and minimal are the same thing when it costs non-minimal resources to bring something to market and reach potential customers through advertising etc. When it costs you $15 to make a $10 sale you are not losing money to abandon the market.

The test doesn't require there to be no impact on the commercial viability of the work; rather, benefits exceeding the loss in commercial value of the work is one (important) factor arguing in favor of fair use.

If there is value to them, why are the copyright owners not offering a way to pay them?

Be interesting to know if Sony et al are selling these songs (as MP3s, rather than 78s, I'd assume) and if so how much they make. That would presumably be used to judge the actual commercial value. And this would only apply to the songs which are still in copyright - sadly not zero given they're all by definition at least 70 years old.

Note that the Supremes recently ruled that commercial use isn't necessarily a gate to fair use. I'm not thinking about the Warhol case. Maybe it was the Oracle/Java case?

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/

I am completely on the IA's side here, and I hope they win the case. Down with copyright.

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.

I disagree. A median value might be really misleading (you could have very high usage for 49% of the collection, and nothing for the rest). But assuming average means "mean..."

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.

I don't agree. The size of the set is of paramount importance to that point. They can always bring the mean down by just adding more recordings to the set, to further obscure how popular the most popular recordings are. In a set of 10 billion, of course people aren't listening to most of them.

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.

They got 400 000 records in the collection, I don't think they're being dishonest here

That is far from the truth.

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.

This appears to be a hoax.

https://www.snopes.com/fact-check/metallica/

haha, that I was unable to tell the difference says a lot.

Even if all the traffic were from 100 pieces, that's a few thousand downloads per month. Let's talk about those specific pieces, then, instead of trying to obliterate an archive.

Shouldn't the plaintiffs then single out that particular popular record, and not try to take down the entire catalogue? It goes both ways - if you ask for all you get data about all and that data shows one access/month.

The plaintiff doesn't want to open a loophole. Suppose that one of these records gets used in a major film soundtrack, and now everybody is downloading it. They will have a harder time asserting their ownership if they don't defend it now.

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."

As I understand it: in USA law copyright, unlike a trademark, is not invalidated by failure to defend it. You are free to ignore unauthorised copying of, or usage, of your work until such time as you find it sufficiently objectionable.