CMU Daily 14.08.23: Record companies sue Internet Archive, Stream-ripper abandons appeal of label litigation

Record companies sue Internet Archive over its golden oldies archiving Great 78 Project
Universal Music, Sony Music and Concord last week sued the Internet Archive over its Great 78 Project. Officially described as "a community project for the preservation, research and discovery of 78rpm records", that venture - according to the record companies - is simply "wholesale theft of generations of music", with the Internet Archive liable for copyright infringement that is both "blatant" and "immense".

The wider Internet Archive says it is a "digital library of internet sites and other cultural artifacts in digital form". It is perhaps best known for its Wayback Machine which stores more than 25 years of web-pages. The Great 78 Project, meanwhile, has digitised and now makes available over 400,000 recordings that were originally released on the 78rpm format from the start of the Twentieth Century through to the 1950s.

In their lawsuit, the record companies state: "Defendants attempt to defend their wholesale theft of generations of music under the guise of 'preservation and research', but this is a smokescreen: their activities far exceed those limited purposes. Internet Archive unabashedly seeks to provide free and unlimited access to music for everyone, regardless of copyright".

Some of the older recordings stored by the Internet Archive will actually be public domain, but plenty are still protected by copyright. And, the labels say, all of the specific copyright protected recordings identified in the legal action "are already available for streaming or downloading from numerous services authorised by plaintiffs".

Therefore, they argue, the Great 78 Project can't be justified as a scheme to "preserve historical recordings", because "these recordings face no danger of being lost, forgotten, or destroyed".

Interestingly, because the recordings at issue here were all released prior to 1972, before 2018's Music Modernization Act the record companies would have had to pursue legal action at a state level, because US-wide federal copyright law only applied to pre-1972 releases.

However, the lawsuit goes on, the MMA "extending federal protection to sound recordings created before February 15, 1972", meaning that "anyone who violates any of the exclusive rights" provided for recordings by federal copyright law in relation to the older tracks "is subject to an action for infringement".

The MMA did actually provide some get-outs for the non-commercial use of pre-1972 recordings. That includes if a recording is not otherwise available, or if a notice of non-commercial activity is logged with the US Copyright Office and is not objected to by a copyright owner. However, the labels claim in their lawsuit, none of these get outs apply in the case of the Great 78 Project.

Presumably expecting the Internet Archive to instead rely on the always trusty fair use defence under American copyright law, the lawsuit also insists that none of the criteria for fair use is met by the Internet Archive's musical initiative.

Meanwhile, noting another recent dispute the Internet Archive had with the book industry, it goes on: "This is not the first time Internet Archive has improperly sought to wrap its infringing conduct in the ill-fitting mantle of fair use. A court in this district recently rejected Internet Archive's attempt to claim fair-use protection for its systematic copying and distribution of copyrighted books".

So, with the MMA get outs and fair use clearly not applying here - or at least as far as the music companies are concerned - the courts should hold the Internet Archive and its founder Brewster Kahle liable for copyright infringement. And, of course, the music companies would then like lots of lovely damages.

It remains to be seen how the Internet Archive responds, but it will likely push back, no doubt arguing that there is actually some support in the wider music community for its work archiving releases from the early days of the record industry.

But the labels will no doubt reaffirm their position that, with so much music - including golden oldies - now readily available through numerous licensed digital platforms, archiving of that kind simply isn't necessary. We shall see.

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Judge declines to force customer-led dispute over Ticketmaster's market dominance to arbitration
As expected, a US judge last week declined to force a dispute between ticket-buyers and Ticketmaster to arbitration, despite the Live Nation-owned ticketing company having successfully enforced an arbitration clause in its terms of service in the past. It didn't work this time because of the way Ticketmaster changed its chosen arbitrator.

This particular lawsuit accuses Live Nation and Ticketmaster of anti-competitive conduct, because of the market dominance the live giant commands in touring, venues and ticketing. When previously sued by its customers, on this and other issues, Ticketmaster has argued that - under its terms of service - those customers are obliged to take their grievances to arbitration rather than a court of law.

And that argument has generally worked, with counter-arguments presented by lawyers representing the customers that no one ever reads a website's terms of service not generally convincing any judges that they should, therefore, ignore the arbitration obligation in Ticketmaster's terms.

However, Ticketmaster then changed its chosen arbitrator from a company called JAMS to a company called New Era. It argues that the latter company is better equipped to deal with complaints where there are lots of concurrent complainants, which is common in the ticketing market.

But the plaintiffs in this lawsuit reckon that New Era is biased in favour of the ticketing firm, and that the processes employed by the company - which they are forced to navigate - are "non-traditional" and "Kafkaesque".

In recent court hearings judge George H Wu indicated that he felt the way in which Ticketmaster went about changing its arbitrator of choice was inappropriate, given it was a significant change that wasn't properly communicated to the customers affected by it.

And sufficiently so that he felt that, on this occasion, the plaintiffs shouldn't be obliged to take their dispute to arbitration.

Confirming that viewpoint in his ruling last week he wrote: "[Plaintiffs] argument is that defendants' imposition of such a significant change in the terms of use without giving any notice to customers [means] that the agreement is procedurally unconscionable".

"The court would agree with that argument", he added. "The fact that defendants' customers received no notice of the significant change to the terms of use creates a situation of unfair surprise. And, because it would seem trivially easy to provide customers with such notice, defendants' failure to do so suggests a degree of intentionality and/or oppression".

With that in mind, Wu concluded: "The court denies the motion to compel arbitration".

It will be interesting to see how this case now proceeds. Live Nation and Ticketmaster, of course, have always strongly denied any allegations of anti-competitive conduct, and they will fight back against this lawsuit in court if they have to.

However, with political interest in the live giant's market dominance pretty high at the moment, the company could probably do without any arguments about anticompetitive conduct being discussed in public in court.

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Russian stream-ripper abandons appeal of $83 million label litigation due to lack of funds
The Russian operator of stream-ripping sites FLVTO and 2conv has abandoned his appeal in a long-running legal battle with the record industry because of a lack of funds.

A lawyer working for Tofig Kurbanov told Torrentfreak that he still believes the default judgment previously issued in favour of the Recording Industry Association Of America should be challenged, but that his client simply can't afford to do so.

Stream-ripping services - which allow people to grab permanent copies of temporary streams - have long been a top piracy gripe for the music industry.

The RIAA first sued Russia-based Kurbanov and his two stream-ripping sites through the US courts in 2018. He fought back, initially arguing that - given he was a Russian citizen running websites in Russia - the US courts didn't have jurisdiction.

When that argument ultimately failed he got about presenting a more conventional defence, reckoning that his stream-ripping services were not in themselves liable for copyright infringement, even if people use them to making infringing copies.

However, when the courts started demanding more information from Kurbanov about the operations of his stream-ripping sites he bailed on the case and subsequently geo-blocked FLVTO and 2conv so that they couldn't be easily accessed from within the US.

With Kurbanov no longer defending himself, the RIAA won a default judgment in its favour. And the courts then ordered Kurbanov to pay the RIAA nearly $83 million in damages.

Despite having bailed on the original case, Kurbanov nevertheless decided to appeal, taking the case to the Fourth Circuit Appeals Court in March last year. At the time his legal rep said that the appeal aimed to "shed light on a legal process that has gone off the rails".

However, last week Kurbanov's lawyers filed a motion to voluntarily dismiss the lawsuit. Attorney Val Gurvits confirmed to Torrentfreak that his client had run out of money and was no longer in a position to fund an appeal.

Gruvits added: "It is disappointing that a person who has never once set foot in the United States and who has only operated a website accessible anywhere in the world can be ordered to appear in a court half way around the world".

"And, if he fails to do so - or simply can't afford to do so - that he can be hit with millions of dollars of damages", the lawyer went on, "even when there has been no evidence that the plaintiffs actually suffered any damages as a result of his conduct".

Of course, given the geographic distance between the labels in the US and Kurbanov in Russia - not to mention the political conflict between Russia and the West at the moment - the chances of the record industry getting those damages are probably pretty low. But either way, the judgement against the stream-ripping sites will now remain in place.

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Warner partners with Steve Carless on new label
Warner Records in the US has announced the launch of a new joint venture label with its own President Of A&R, Steve 'Steve-O' Carless.

Called Defiant Records, the new label will - says Carless - "be filled with individuals who are always challenging the status quo [and are] always going to be in an innovation phase of their career".

Prior to joining Warner Records in 2021, Carless had senior roles at various Universal labels as well as Warner's Atlantic Records. He also co-founded The Marathon Agency with Nipsey Hussle and continues to play a role in safeguarding the late rapper's legacy and estate.

The first release via the new label is called 'Defiant Presents: Jiggy In Jersey', and sees producer/artist MCVERTT collaborate with rappers Bandmanrill and Sha EK on a record that is described as being at the "cutting edge of Jersey club music, New York drill and hip-hop dance".

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No single cause for WOMAD attendees that fell ill at this year's event
The UK Health Security Agency has concluded that there wasn't a singular cause that resulted in various people falling ill after attending last month's WOMAD festival. Which suggests each of those festival-goers got ill for different reasons, rather than because of a specific incident on-site at the event.

It emerged last week that, after a number of festival-goers had fallen ill during and after WOMAD, the event's organisers were working with the UKHSA and Wiltshire Council to assess if there was a singular cause.

In a statement on Friday, festival organisers explained that: "When WOMAD learnt about a number of people being ill during and after the festival we were greatly concerned".

"We take the well-being of anyone onsite at WOMAD very seriously," they added, "and we initially advised the environmental health team at Wiltshire Council of a possible issue and on review they involved the UKHSA who initiated an investigation into the outbreak of illness and any possible causes".

The statement then confirmed that "the UKHSA have today said that 'none of the tests carried out have identified a singular cause' and that 'the number of people that have reported illness are small as a proportion of the total number of festival goers'".

The organisers then said: "We are greatly relieved to learn that the outbreak was both limited in its reach and that there is no evidence to support any concern that illness may have been caused by actions taken onsite either by WOMAD as festival producers or any of our partners including food traders".

"This does not diminish in any way our concern for any of the people affected and we wish them a speedy recovery", they added. "We would like to thank members of the public who have shared information with us about their symptoms and their experiences at WOMAD festival this year".

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John Lydon tells Americans to stop overstating the New York scene's influence on punk
John Lydon would like all the American journalists out there to stop "pretending that the whole punk influence came out of New York". Because, you see, it was clearly British artists who paved the way.

This came up during an interview with The Sun last week. Lydon was mainly there to talk about the new PiL album 'End Of World', but he got a little bit retrospective as well.

"I've heard an awful lot of American journalists pretending that the whole punk influence came out of New York", he mused. "Well, hello? Bands like Sweet with 'Ballroom Blitz' and Mud with 'Tiger Feet' - that's the do that, man! T Rex, David Bowie, Slade, Mott The Hoople, The Alex Harvey Band - their influence was enormous. And they try to write that all off and wrap it around Patti Smith. It's so wrong!"

As for what was influencing Lydon himself back at that time: "I loved X-Ray Spex, The Slits and The Adverts. Really exciting and the more different they were, the better". So, now we know. American journalists, please take note.

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