Adverse Internet Archive Appellate Decision - Part 2

We previously posted about the Internet Archive and its loss of litigation with a publishers group. Again we note that this blog uses the Internet Archive to preserve recordings of Regents meetings and other purposes such as preserving a "print" version of this blog itself.*

Imagine a great power outage (or maybe World War III) that blows out the internet and most of the history of the 21st century to date. Or maybe just imagine a lawsuit that has the same effect.

From Wired, Kate Knibbs: 

If you step into the headquarters of the Internet Archive on a Friday after lunch, when it offers public tours, chances are you’ll be greeted by its founder and merriest cheerleader, Brewster Kahle.

You cannot miss the building; it looks like it was designed for some sort of Grecian-themed Las Vegas attraction and plopped down at random in San Francisco’s foggy, mellow Richmond district. Once you pass the entrance’s white Corinthian columns, Kahle will show you the vintage Prince of Persia arcade game and a gramophone that can play century-old phonograph cylinders on display in the foyer. He’ll lead you into the great room, filled with rows of wooden pews sloping toward a pulpit. Baroque ceiling moldings frame a grand stained glass dome. Before it was the Archive’s headquarters, the building housed a Christian Science church.

I made this pilgrimage on a breezy afternoon last May. Along with around a dozen other visitors, I followed Kahle, 63, clad in a rumpled orange button-down and round wire-rimmed glasses, as he showed us his life’s work. When the afternoon light hits the great hall’s dome, it gives everyone a halo. Especially Kahle, whose silver curls catch the sun and who preaches his gospel with an amiable evangelism, speaking with his hands and laughing easily. “I think people are feeling run over by technology these days,” Kahle says. “We need to rehumanize it.”

In the great room, where the tour ends, hundreds of colorful, handmade clay statues line the walls. They represent the Internet Archive’s employees, Kahle’s quirky way of immortalizing his circle. They are beautiful and weird, but they’re not the grand finale. Against the back wall, where one might find confessionals in a different kind of church, there’s a tower of humming black servers. These servers hold around 10 percent of the Internet Archive’s vast digital holdings, which includes 835 billion web pages, 44 million books and texts, and 15 million audio recordings, among other artifacts. Tiny lights on each server blink on and off each time someone opens an old webpage or checks out a book or otherwise uses the Archive’s services. The constant, arrhythmic flickers make for a hypnotic light show. Nobody looks more delighted about this display than Kahle.

It is no exaggeration to say that digital archiving as we know it would not exist without the Internet Archive—and that, as the world’s knowledge repositories increasingly go online, archiving as we know it would not be as functional. Its most famous project, the Wayback Machine, is a repository of web pages that functions as an unparalleled record of the internet. Zoomed out, the Internet Archive is one of the most important historical-preservation organizations in the world. The Wayback Machine has assumed a default position as a safety valve against digital oblivion. The rhapsodic regard the Internet Archive inspires is earned—without it, the world would lose its best public resource on internet history.

Its employees are some of its most devoted congregants. “It is the best of the old internet, and it's the best of old San Francisco, and neither one of those things really exist in large measures anymore,” says the Internet Archive’s director of library services, Chris Freeland, another longtime staffer, who loves cycling and favors black nail polish. “It's a window into the late-’90s web ethos and late-’90s San Francisco culture—the crunchy side, before it got all tech bro. It's utopian, it's idealistic.”

But the Internet Archive also has its foes. Since 2020, it’s been mired in legal battles. In Hachette v. Internet Archive, book publishers complained that the nonprofit infringed on copyright by loaning out digitized versions of physical books. In UMG Recordings v. Internet Archive, music labels have alleged that the Internet Archive infringed on copyright by digitizing recordings.

In both cases, the Internet Archive has mounted “fair use” defenses, arguing that it is permitted to use copyrighted materials as a noncommercial entity creating archival materials. In both cases, the plaintiffs characterized it as a hub for piracy. In 2023, it lost Hachette. This month, it lost an appeal in the case. The Archive could appeal once more, to the Supreme Court of the United States, but has no immediate plans to do so. (“We have not decided,” Kahle told me the day after the decision.)

A judge rebuffed an attempt to dismiss the music labels’ case earlier this year. Kahle says he’s thinking about settling, if that’s even an option.

The combined weight of these legal cases threatens to crush the Internet Archive. The UMG case could prove existential, with potential fines running into the hundreds of millions. The internet has entrusted its collective memory to this one idiosyncratic institution. It now faces the prospect of losing it all.

Kahle has been obsessed with creating a digital library since he was young, a calling that spurred him to study artificial intelligence at MIT. “I wanted to build the library of everything, and we needed computers that were big enough to be able to deal with it,” he says.

...After the initial ruling in Hachette v. Internet Archive, the parties agreed upon settlement terms; although those terms are confidential, Kahle has confirmed that the Internet Archive can financially survive it thanks to the help of donors. If the Internet Archive decides not to file a second appeal, it will have to fulfill those settlement terms. A blow, but not a death knell.

The other lawsuit may be far harder to survive. In 2023, several major record labels, including Universal Music Group, Sony, and Capitol, sued the Internet Archive over its Great 78 Project, a digital archive of a niche collection of recordings of albums in the obsolete record format known as 78s, which was used from the 1890s to the late 1950s. The complaint alleges that the project “undermines the value of music.” It lists 2,749 recordings as infringed, which means damages could potentially be over $400 million...

As he sits on a rock with his phone in his hand, Kahle says the US legal system is broken. He says he doesn’t think this is the end of the lawsuits. “I think the copyright cartel is on a roll,” he says. He frets that copycat cases could be on the way. He’s the most bummed-out guy I’ve ever seen on vacation in the south of France. But he’s also defiant. There’s no inkling of regret, only a renewed sense that what he’s doing is righteous. “We have such an opportunity here. It’s the dream of the internet,” he says. “It’s ours to lose.” It sounds less like a statement and more like a prayer.

Full story at https://www.wired.com/story/internet-archive-memory-wayback-machine-lawsuits/.

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*https://uclafacultyassociation.blogspot.com/2024/09/adverse-internet-archive-appellate.html.