In 2020 a group of book publishers sued the Internet Archive over their Controlled Digital Lending program, which made PDF scans of books and lent them out from the Archive’s website. For books still in copyright, the Archive usually limited the number of copies of a book lent to the number of physical copies of the book they had in storage. Several publishers sued with an argument that can be summarized as “that’s not how it works.” In late March, the judge made a ruling that can be summarized as “of course that’s not how it works.” (More background here.)

After several months of quiet negotiations, on Friday, the two parties filed a proposed consent agreement in which the Archive promised to stop it and pay the plaintiffs an undisclosed but presumably not huge amount of money. The only disagreement was exactly what they promise to stop, with letters from each to the judge explaining their positions.

The publishers say that they will stop distributing scans of any of the publishers’ books, arguing that’s consistent with the judge’s decision, and it’s up to the copyright owner whether to publish an e-book, citing Art Spiegelman’s graphic novel Maus which the author decided would not work well as an e-book. The Archive argues that it should not apply to books that are not otherwise available as e-books, making a fairly legalistic argument that the judge’s decision was based on CDL’s competition with e-books, and citing another case that said the unavailability of an e-book version favored a fair use finding.

Neither argument is ridiculous, but considering how dismissive the March decision was, I was somewhat surprised that the judge adopted the Archive’s position on the same narrow legal grounds, saying that since the publishers had only complained about books with electronic editions, “the parties did not brief, and the Court did not decide, whether the unavailability of digital library licensing would affect the fair-use analysis.”

This agreement should provide a great deal of not totally unexpected relief for the Archive. US copyright law provides statutory damages for copyright infringement, which in some cases lets a judge assess up to $150,000 per infringement, so if the publishers had wanted, they could have asked for damages that would cripple or destroy the Archive. While it was always evident that for business and political reasons, they were unlikely to do so, it was a powerful lever to get the Archive to do what they wanted. The consent agreement is as mild as one could imagine; just stop scanning our books, OK, done.

But on the very same day that consent agreement was filed with the court, the Archive was served with another potentially much more damaging suit from the music industry. (I have no idea whether the timing was deliberate or a coincidence. It’s in the same court in New York but is assigned to a different judge.) The Archive’s Great 78 Project is making digital copies of 78 RPM records from the late 1800s through the 1950s. Until 1972 there was no Federal copyright on sound recordings, and they were only covered by a confusing tangle of state laws. In 1972, new recordings were copyrighted, but not older ones. In 2018 the Music Modernization Act (MMA) retroactively gave Federal protection to pre-1972 recordings, giving them extraordinarily long protection of 100 years or more. As a result, starting in 2019, when the act came into effect, every recording made after 1923 became copyrighted, with recordings only coming into the public domain after a century.

While there was some merit in creating a consistent national law for recording copyright, a 100-year term (110 for works between 1947 and 1956) was a ridiculous gift to the music industry. The law does have a process to make use of abandoned orphan works, about which more later.

The publisher’s suit makes a straightforward complaint that the Archive is distributing copies of their records without permission and includes a list of 2749 of them from the 1930s through 1950s. A little spot-checking of the Archive’s website confirms this, they really are doing that.

Another part of the Act created an onerous process for identifying orphan works to allow non-commercial use of them. First, you have to search to see if it’s still in print, checking the Copyright Office’s database of rights owners, then use a search engine like Google, then search YouTube, then search SoundExchange, then search Amazon for physical products, then search a smaller specialized store, and maybe a few other places, being sure to use a variety of search terms. (The details are here.)

If you do that and don’t find the record, you go on to the next step, file a notice of noncommercial use with the Copyright Office, using their approved PDF cover sheet and Excel template for the works. The Copyright Office puts them into a public searchable database. The rights owner then has 90 days to opt out, after which noncommercial use is allowed.

The Archive has a page called Unlocked Recordings that says, “A reasonable search has been conducted to determine that these items are not commercially available,” but the complaint notes, apparently correctly, that none of them have been submitted to the Copyright Office’s database, so none of them get the orphan works safe harbor.

Overall, this is bad news for the Archive. As in the CDL case, they appear to believe that the law is what they want it to be rather than what it actually is. You don’t have to think that the MMA’s near-infinite copyright term is fair, reasonable or good public policy to understand that, nonetheless, it is the law, and courts will enforce it. The Archive is poking the music industry in the eye. Anyone who remembers the history of Napster and P2P music sharing should realize that the music industry has no sense of humor or proportion, and when they win their suit, which they will, they are unlikely to settle on terms as favorable as the publishers did.

I expect that a lot of the records in the Archive’s collection really are orphaned. They could figure out how to automate searches for many of them (their staff, some of whom I know, are plenty smart), save the search non-results as the Copyright Office suggests, send giant spreadsheets to the Copyright Office, and then wait. Some of the rights holders might opt out, but most probably wouldn’t, and then they’d have a collection of legal recordings, along with documentation, so other people can use them too. I hope that when the smoke clears, there’s enough of the Archive left for them to do so.