Inside the $621 Million Legal Battle for the ‘Soul of the Internet’
In the old chapel of a former Christian Science church in San Francisco, late-afternoon sun pours orange through the windows, and several giant servers are hard at work. The tall, black towers fill two large alcoves, and their cooling fans emit a serene, industrial hum as blue lights blink. Each flicker, says the man in charge of this operation, Brewster Kahle, is a virtual patron of the enormous digital library called the Internet Archive.
Across the room, near where the pulpit would be, sits a sculpture of chunky, red, antiquated computer monitors flashing bygone web pages — a snapshot of the World Wide Web in 1997, and the earliest entry to the Internet Archive’s enormous digital collection.
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But it’s the statues — lined up against the walls and in the pews — that grab your attention. Hundreds of miniature replicas of past and present Internet Archive employees. Three more just arrived yesterday, Kahle, 63, tells me last fall as he points out his own. The statue’s wire-frame glasses match his; the white hair, however, is more tight and curled than the tufts that halo his actual head, making him look a bit like Doc Brown from Back to the Future. Kahle’s statue carries a book in one hand and a computer mouse in the other, the latter held out like an offering.
“Nobody makes any money here, right?” says Kahle. “So you do this for some other reason. Why do you do it? Because you want to be proud of what you do.”
I ask what you have to do to earn a statue.
“You have to work at the Archive for three years,” replies Kahle, who founded the Archive as a nonprofit in 1996. “You have to spend your time doing a public service. Oh, did I tell you?” he adds as a casual aside. “The major record labels are trying to destroy us.”
To many, the Internet Archive is its own kind of sanctuary — a vestige of a bygone internet built on openness and access, a Silicon Valley standout interested not in series funding or shareholder value, but the preservation of any piece of the cultural record it can get. But to the corporations and people that own the copyrights to large swaths of that record, the Internet Archive is like a pirate ship stuffed with digital plunder. Two lawsuits have brought these long-simmering tensions to the courts and public consciousness, with financial repercussions in the hundreds of millions that could bring down the internet’s greatest library.
“The Library of Alexandria for the Digital Age”
Before founding the Internet Archive, Kahle worked as a computer scientist, making major contributions to personal computing and the early internet during the Eighties and Nineties.
With the Archive, he says, “The whole idea was to build the Library of Alexandria for the digital age. To build universal access to all knowledge.”
The Archive is best known for its preservation of the ephemeral expanses of the World Wide Web, available through its one-of-a-kind archive/search engine, the Wayback Machine. But this is just one facet of its collection: Working with museums, libraries, and individual donors and contributors, the Archive has amassed more than 145 petabytes of material (if you took more than 4,000 digital photos every day for the rest of your life, you might end up with 1 petabyte). Much of this material is obsolete or out of print — books, microfilm and microfiche, old software, video games, obscure VHS tapes, TV news programs, historic radio shows, and hundreds of thousands of concert recordings.
“It’s a research library. It’s there to record and make available an accurate version of the past,” Kahle says. “Otherwise, we’ll end up with a George Orwell world where the past can be manipulated and erased.”
But this work has long rankled one of the most powerful forces in the United States — rights holders — and the threat of copyright lawsuits has always loomed over the Archive. Lawrence Lessig, the legal scholar and Archive ally, even predicted Kahle would wind up in court in a 2001 New York Times interview, days after the Wayback Machine launched.
It took nearly two decades — during which the Archive occasionally faced smaller legal challenges — but Lessig was right. In June 2020, several book publishers sued the Internet Archive following the launch of its pandemic-era National Emergency Library, which made its collection of scanned books available to borrow freely and without restrictions amid school, university, and library closures. The publishers claimed mass, willful copyright infringement and won a summary judgment in the lower courts last March. (The Archive appealed, but lost again earlier this month.)
The same day the district court settlement was announced in August 2023, a set of music-industry clients — led by major record labels Universal Music Group and Sony Music — filed their own copyright-infringement lawsuit over another Archive endeavor, the Great 78 Project: an unprecedented effort to digitize 78 rpm records, the obsolete shellac discs that emerged in the 1890s and remained the dominant format for audio recordings until vinyl surpassed them in the 1940s and 1950s.
The Great 78 Project bills itself as a “community project for the preservation, research and discovery of 78 rpm records”; the labels, in their lawsuit, call it an “illegal record store.” They claim the availability of these digitized 78s constitutes “wholesale theft of generations of music,” with “preservation and research” used as a “smokescreen.” They further argue that the project “undermines the value” of the original recordings, and “displace[s]” authorized streams that actually generate royalties and revenue.
Attorneys for the labels forwarded interview requests to the Recording Industry Association of America, which declined to comment for this article. Ken Doroshow, chief legal officer for the RIAA, previously said that the suit was meant to address “the industrial-scale infringement of some of the most iconic recordings ever made.”
If you want to explore the old, weird expanses of recorded-sound history, there’s no better resource than the Great 78 Project. To build it, the Internet Archive contracted the services of expert audio preservationist George Blood, whose team has digitized and uploaded (with detailed metadata) more than 400,000 recordings since 2017. Click around, filter by year, genre, language, and you’ll find an infinite scroll of discs — most issued by long-defunct labels like Victor, Vocalion, Edison, Oriole, Okeh, and Brunswick — their front labels photographed and laid out in a grid, each one leading to a web page with a straight rip of the crackly recording. A folk, blues, or country tune, a lost jazz gem or minor big-band hit, a Yiddish comedy bit, Hungarian opera, Argentine tango, polka, foxtrot, gospel, hymns, or even just the sound of a person laughing because that’s what people wanted to hear when it became possible to record a human voice.
Blood, who is also named as a defendant in the lawsuit, calls this “preservation of the cultural record” one of the “great accomplishments” of the Great 78 Project. “Probably 95 percent or more of this content is not available anywhere,” he tells Rolling Stone. “Whether they were small labels, or obscure pressings, they have been lost to time.”
Of these hundreds of thousands of recordings, the record labels sued over the uploading of 4,142 (an amended complaint from earlier this year added 1,393 recordings to the initial 2,749). Most are by recognizable legacy acts whose music is still widely available: Billie Holiday, Louis Armstrong, Elvis Presley, Chuck Berry, Hank Williams, Frank Sinatra, Benny Goodman, Ernest Tubb, and Peggy Lee. (These recordings are now no longer available on the Great 78 Project, per Kahle.) The potential damages are staggering — $150,000 per recording (the statutory maximum for an infringing incident), with a possible total of more than $621 million. If the labels win, with a broad enough judgment, it could end the Internet Archive. (The most recent action in the case was a private mediation session between the parties earlier this week. As it stands, the case is moving forward with the discovery phase scheduled to last through most of 2025.)
Above the doorway to Kahle’s office is a street sign: Librarian Place. With a self-deprecating drone, Kahle ticks off some of the achievements hanging on his wall: “I’m in the Internet Hall of Fame, American Academy of Arts and Sciences, American Antiquarian Society.” Not missing a beat, he marvels at the new distinction these lawsuits seem to have foisted upon him: “And suddenly we are bringing down capitalism.”
“Openness Is the Way to Go”
Kahle grew up in Scarsdale, New York, the son of a mechanical engineer who instilled in him a post-WWII ethos — “You can build things, you can try to make things better” — that later cross-pollinated with hippie idealism as Kahle studied engineering and computer science at MIT in the late Seventies and early Eighties. Kahle bolstered his studies with courses in history, Buddhism, and library science, even as many of his MIT peers treated the humanities like gym class.
Kahle was enamored with libraries, and they informed his two major contributions to the early internet era. In the Eighties, he joined the supercomputer company Thinking Machines, where he helped develop the Wide Area Information Server (WAIS), an early online publishing system and search engine modeled after the way people asked questions of librarians. His next company, Alexa Internet, founded in 1996, was named for the Library of Alexandria and crawled the web for information to create a quasi-card catalog for the internet.
During our conversations, Kahle name-checks a variety of 20th century texts such as “As We May Think,” Computer Lib/Dream Machines, Practical Digital Libraries, all of which conjure similar visions of a future where information, and people, are liberated through technology and libraries. Kahle believed the internet could replace the world he grew up in, where information was confined to a few TV channels, textbooks, and newspapers. That was a “game of very few winners,” he likes to say. He wanted to make a game with many.
When WAIS spun off into its own company in the early Nineties, Kahle had the chance to develop it further with Steve Jobs at NeXT. He declined. Jobs, says Kahle, “was not interested” in building out WAIS with search tools that were fully open to the public.
“Openness is the way to go,” Kahle says, “even though I won’t become as rich, because who cares about getting rich? How do we make it so there’s lots of writers, publishers, booksellers, and libraries that have their own niches? How do we make it so it’s many-to-many-to-many, without any central points of control?”
Kahle still got rich. WAIS sold to AOL for $15 million in 1995. And Amazon, enchanted by Alexa’s web-crawling capabilities, bought it for a reported $250 million in stock in 1999. (As part of the deal, Amazon agreed to keep donating those web crawls to the Internet Archive for preservation.)
Though Kahle’s ideals have never wavered, his creations were subsumed by a Silicon Valley behemoth feeding off all things antithetical to his vision of an open internet: advertising models, insane capital markets, and the ultimate “poison” (as he calls it), monopoly power. This was how you got tight controls on information, locked up behind towering paywalls. A game of few winners.
“We’ve taken the promise of the internet and shafted it,” Kahle says. “We convinced people — I was one of them — to turn to their screens to answer questions.”
So, as the internet zagged, Kahle took his millions and brilliance and built his bastion. And though he spurned Silicon Valley’s hypercapitalist bloodlust, he continued to embrace its swashbuckling, sometimes heedless pursuit of a goal. To grow the Internet Archive, that meant dancing around and prodding the limits of copyright law. Though to the Archive’s detractors, this often looked like blatant disregard.
In their lawsuit, the labels hit the Archive for its “long history of opposing, fighting, and ignoring copyright law, proclaiming that their zealotry serves the public good. In reality, Defendants are nothing more than mass infringers.”
Still, “serving the public good” seemed to earn the Archive some leeway. Jessica Litman, a University of Michigan Law School professor and copyright expert, notes that the Wayback Machine was able to skirt major challenges because it “became a really well-accepted resource,” and no one else (including the Library of Congress) was willing to put up the money, or take the copyright risk, to index the web.
When rights holders did demand something be taken down, the Internet Archive obliged: “Always with respect and in conversation,” Kahle says. Sometimes, a compromise was reached, like in 2005, when the Internet Archive and the Grateful Dead found a solution to keep the band’s myriad concert recordings available on the “Live Music Archive.”
Kahle shared a kind of copyright philosophy at a 2019 conference. “Try not to cause other people to feel like they’re being taken advantage of,” he told the crowd. “If that doesn’t happen, they won’t come after you. If they feel like they’re being taken advantage of, they’ll throw things at you, like lawyers … I think we just need to proceed and do the right thing. Don’t do things that smell bad.”
But to many, the Internet Archive always smelled bad. “That’s the issue with Brewster,” says Neil Turkewitz, a former executive vice president, international of the RIAA. “It’s the hubris that flows out of Silicon Valley, and he’s got it in spades: That you can make your own laws that determine your norms of conduct if you have a higher ideal.”
Dennis Spragg, director of the Glenn Miller archives and the estate’s licensing coordinator, colorfully says he’ll refrain from using the word “thief” to describe the Archive’s activities, because “that’s a judgmental term.” Instead, he settles on a fictional Latin legal descriptor: “Habeas grabus. In other words: I have it, I grab it.”
“They’ve really gotten under the skin of a lot of people,” he adds. “And there are movements among rights holders to get tough on them.”
A $621 million lawsuit is tough, and both Turkewitz and Christiane Kinney, a music-industry lawyer and copyright specialist, think the labels have an open-and-shut case. There’s barely a “factual dispute,” Turkewitz argues. “It’s a straightforward reproduction-distribution copyright case … focused on records that are in the [labels’] catalog, being distributed, and available commercially.”
Kinney agrees: “They talk a great game. But the reality is, Bing Crosby’s ‘White Christmas’ — when do we not hear that?”
For the Internet Archive, the notion of fair use — legal carve-outs that allow people to use copyrighted works if the purpose is deemed sufficiently “transformative” or “educational” — is on the table, but that argument failed to sway the lower courts in the book-publishers’ case. The Copyright Act also gives libraries and archives some leeway to reproduce and distribute protected works, but there are debates over whether the Internet Archive, despite its assertions, is a library or just an online distribution hub. (In the book-publishers’ case, the appeals court held that the “IA does not perform the traditional functions of a library.”)
Litman does suggest the labels will have to prove the recordings the Internet Archive is hosting are the same ones labels are currently selling. “I think that’s a hard argument to make,” she says. “I would be shocked if they hadn’t gotten new copyright registrations for those recordings. What they’re exploiting is a remastered version of the older recordings. And what the Internet Archive is streaming are the original, very low-fi recordings.” For instance, the registration for a 1995 Count Basie compilation, On the Upbeat, contains two songs in the suit (“Every Tub” and “One O’Clock Jump”) and states the claim is for “New matter: compilation & remix.”
Jennie Rose Halperin, a librarian and director of the advocacy group Library Futures (which filed an amicus brief on behalf of the Archive in the book-publishers’ case), echoes this sentiment: “To make the assumption that listening to a 78 online with all the scratches and crackles is the same as going to Spotify and listening to a Frank Sinatra song is, frankly, a specious argument.”
“Too Important to Be Left to These Corporations”
In the Internet Archive’s lobby, a display case exhibits the history of the written word on one side (cuneiform tablets to laptops) and the history of recorded sound on the other (Edison cylinders to MP3s). A Victor Talking Machine from 1927 sits in between. Kahle asks if I’ve ever heard a 78 played on a mechanical phonograph before. I haven’t, so he grabs a disc from a small stack, places it on the turntable, and fixes a fresh needle to the stylus. I’m instructed to turn the crank on the side until it starts to resist. When it does, Kahle flips a switch, the turntable spins, and the little arrow on the rpm speedometer inches toward 78. The needle hits the shellac and starts to dance back and forth in the groove, pushing air through a diaphragm to amplify the sound.
The record, 1947’s “Concerto Boogie” by the Tommy Edwards Trio, is a jazzy take on Edvard Grieg’s 1868 Piano Concerto in A minor. After a stern piano intro, the bass and guitar swing into a lush, goofy, gimlet-drunk groove. Standing in front of the Victor Talking Machine’s iconic, blooming horn, I flash a delighted, stupefied smile. Not because “Concerto Boogie” is the greatest song I’ve never heard (no offense to the Tommy Edwards Trio); I’ve just never listened to music this way, where each crackly note hits your face with a puff of air. I’ve stood in front of subwoofers as they huff and puff; I’ve felt bass vibrating through my body. But this is different, a breath out of the past.
Seventy-eights have long been essential, if not invaluable, to the preservation of early-20th-century sound. Under the best circumstances, an audio restoration or preservation project uses a master recording — the original tape, digital file, or, as was often the case in the early 1900s, metal plate — onto which the song was first cut. But few of those metal plates survive today. (Paramount Records, the prominent jazz and blues label that released music by Ma Rainey, Blind Lemon Jefferson, and Charley Patton, folded during the Depression and sold many of its masters as scrap metal.)
Tommy Edwards Trio – “Concerto Boogie”
New 78s were manufactured through the Fifties, but the work of preserving those older discs was often eschewed by labels and taken up by individuals. When Columbia Records released the landmark 1961 Robert Johnson collection, King of the Delta Blues Singers, it didn’t pull the recordings from its own meticulously-kept vault: A few metal master plates were found in a factory, but most of the songs were sourced from 78s in the personal collections of two Columbia employees.
Individual collectors were essential to the growth of the Great 78 Project, too, from the 70,000 discs donated by the Danish collector Leif Druedahl to additional discs gifted from various institutions and libraries.
David Leonard, president of the Boston Public Library, which donated a large swath of its long-out-of-circulation sound collection, remembers the “praise and comments” from music lovers and nostalgic listeners that poured in when the collection went live.
The labels do take care of plenty of old music, especially if it’s still profitable, like the 4,000-odd recordings over which they’re suing the Archive. But Nathan Georgitis, executive director of the Association for Recorded Sound Collections, a nonprofit committed to studying and preserving sound recordings, argues that record companies also have a way of letting “content go.” He alludes to the infamous 2008 fire at Universal Studios (a “big mishap with its vault”), which destroyed a warehouse filled with archival audiovisual material. And he notes that ARSC and some labels have occasionally found themselves at odds over “how to properly manage sound-recording collections — whether for the benefit of history and the enlightenment of mankind, or for, you know, economic profit.”
Lew Tucker, a computer scientist and peer of Kahle’s, understands the repercussions of those considerations. His father, Tommy Tucker, was a successful big-band leader in the Thirties and Forties, who mostly made his living on the road, but recorded hundreds of songs and even notched a few minor radio hits. Most of those recordings are now likely owned by Universal and Sony, but you won’t readily find them on CD or streaming.
“There’s no commercial interest,” Tucker admits of his dad’s music. “But then it’s all locked up, nobody can hear it.”
You will find hundreds of Tommy Tucker recordings on the Great 78 Project, but none of them are part of the lawsuit. “That’s why preservation and archiving is too important to be left to these corporations that don’t see a way to monetize it,” Tucker says. “Brewster’s not monetizing it.”
The Great 78 Project was ultimately designed for the Tommy Tuckers and the “Concerto Boogie”s. While 78 collectors helped build it, it’s a fundamental counter to their frequent pursuit of the rarest discs in the world. “It’s the long tail that people wanted,” says Kahle. “They wanted to know, ‘What did America sound like?’ We’re looking for not only the things people listened to, but the way they listened to it.”
And the Internet Archive probably could’ve done exactly this and never faced a $621 million lawsuit. That’s because the 2018 Music Modernization Act set up rules to allow people to share the plethora of recordings made before 1972 that aren’t available, for streaming or sale, through official channels. Rules that, say, a nonprofit internet library could follow if it wanted to digitize 78s containing tracks you’d never find on Spotify. They wouldn’t be allowed to monetize those recordings, and would have to conduct a “good faith, reasonable search” to ensure the original rights holder wasn’t making money off them. But, if they did that, then filed notice with the Copyright Office, waited 90 days, and no one objected, they’d be free to share.
The Internet Archive actually leapt to use these rules to add a slew of out-of-print vinyl LPs to its library. Its “Unlocked Recordings” collection now boasts more than 23,000 items, and prominently states that a “reasonable search” was conducted to determine they weren’t commercially available.
But the labels, in their suit, argue no similar search was conducted for the Great 78 Project — proof, in their minds, that the Internet Archive knew the rules and willfully ignored them. (They also rebuffed the Archive’s claim about the “Unlocked Collection,” saying it never filed notice with the Copyright Office for any recording, and even hosted recordings by Paul McCartney, Jimi Hendrix, and Nina Simone at one time; if those recordings were available, they appear to have been taken down.)
Kahle insists that if the labels had said, “Hey, it’s so important that nobody be able to get that Benny Goodman 78,” the Internet Archive “would’ve worked with them.” The RIAA even contacted him in 2020 about possible infringement on the Great 78 Project, and while Kahle defended the endeavor in response, he also said they’d remove any specific titles if the labels asked. No such request came, just the lawsuit three years later.
But the labels argue, this time, it wasn’t their responsibility to serve the Archive with such a list or copyright takedown notices. Even Litman, a great admirer of the Internet Archive, thinks it may have been “negligent” in failing to follow these rules. The Music Modernization Act “required [the Archive] to go through some hoops, and it didn’t,” she says.
I broach this with Kahle for the first time in the Archive’s lobby, across the room from the Victor Talking Machine, where he’s dropping a coin into a 1940s-era red electric jukebox. I punch a button for a Benny Goodman tune, but the machine’s finicky and brings up Louis Armstrong and Ella Fitzgerald’s “The Frim Fram Sauce” instead — one of the allegedly infringed-upon recordings on the Great 78 Project.
I mention a presentation where Kahle discussed how the Archive checked if the VHS tapes it was preserving were commercially available on DVD. Were similar steps taken for the 78s?
“For LPs and CDs, that’s exactly what we do,” he says. “Seventy-eights, we asked around, we dealt with a lot of collectors, they just said it’s not a problem.” (In an email, Kahle further notes that the Great 78 Project “predates the MMA” and that the “record labels knew about it.”)
But there’s an even more blunt, obvious way of asking this question that doesn’t require knowledge of byzantine U.S. copyright law. Why didn’t the Internet Archive just think twice before making a song like “The Frim Fram Sauce” or Bing Crosby’s “White Christmas” — the most popular single of all time — available online for free? There wasn’t any concern about even a Sinatra hit on 78?
For a few moments, it’s just the hearty horns of Bob Haggart and His Orchestra. “It wasn’t a problem,” Kahle says after a beat. “We talked to people, it wasn’t a problem.”
When I bring it up again later, Kahle argues that 78s are “obsolete” and that they made “faithful transcriptions of 78 rpm records that haven’t been for sale for 50 to 70 years … They’re so unrelated to what you would get on Spotify. People go to Spotify to find things that they enjoy [listening to]. When I want to listen to 78s, I listen to the wonderful work of Jack White—” and now he’s up from his recliner, out of his office, rooting around, and returning with Third Man’s luxurious Rise and Fall of Paramount Records box set, with its meticulously remastered tracks from the Paramount catalog newly pressed onto vinyl.
“If you want to enjoy [the sound of] 78s, get this,” he insists.
Kahle says he believes the MMA exemptions have more to do with vinyl LPs released before 1972, which “still kinda sound like the music you’d listen to” on streaming or CD.
But to the labels, I point out, it doesn’t matter if it’s a straight transfer of “White Christmas” from an old shellac disc — it’s still “White Christmas,” and it’s available for people to stream for free.
“Well, do people?” Kahle retorts.
This question feels pertinent in a $621 million lawsuit. And the complaint does throw out some statistics — estimated play counts and downloads — for a few recordings. “White Christmas” allegedly has “tens of thousands” of downloads or streams on the Great 78 Project; Sinatra’s “Young at Heart” has 2,300; Thelonious Monk’s “Monk’s Dream” has “hundreds.” For comparison, on Spotify, “Young at Heart” and “Monk’s Dream” have over 20 million plays each; and the two versions of “White Christmas” you’ll find on there have more than 1 billion cumulative listens.
Kahle answers his own rhetorical question with the sharp, incredulous laugh that often carries his exasperation: “We’ve now run the experiment, and the answer is, they don’t!”
“They Failed to Ask the … Rights Holders for Permission”
Like Lew Tucker, John Mills II is also the son of a musician. His father, Donald Mills, was one of the founding members of the Mills Brothers, the pioneering Black vocal group with decades of hits going back to the 1920s. Mills grew up steeped in the world of the Mills Brothers, and it was only natural for him to become a musician. He’s always pursued his own projects, but he started singing with his dad in 1982, and after Donald’s death in 1999, he continued to carry on the Mills Brothers legacy.
“I always revered his artistry, his beautiful voice, the rapport that he had with his audiences,” Mills says. “I’m not gonna say no to that — I tried not to mess it up!”
The Mills Brothers made more than 2,000 recordings and, unlike the Tommy Tucker catalog, the vast majority of them are widely available. They’re still regularly licensed for video games, movies, and TV shows, too. “People are more aware of it than they know,” says Mills.
The Great 78 Project lawsuit includes 39 Mills Brothers recordings — including collaborations with Armstrong and Fitzgerald, and hits of their own, like “Nevertheless (I’m in Love With You)” and “You Always Hurt the One You Love” — all owned by Universal Music.
Mills, like other estate reps I spoke to, stands firmly with the labels. “It is a treasure trove, in essence,” Mills acknowledges of the Great 78 Project. “But they failed to ask the artists, creators, publishers, writers, master rights holders for permission to distribute our work for free.”
The estates’ frustrations speak to a tension that’s long confounded Turkewitz, the former RIAA executive, about the Internet Archive’s activities. “How can you take an action that’s so antithetical to the interests of the creator, while claiming a love of the product of the creator?”
But the same could arguably be said of record labels. Fundamentally, copyright exists to protect creators and incentivize them to create; but in America, as Litman notes, it’s easy to sign away those rights and much harder to reclaim them. That allows “publishers and other intermediaries to step in, often to the disadvantage of the original author,” Litman adds. This is how the record industry has functioned since forever.
Doug Holloway, a representative for the Thelonious Monk estate, is unequivocal in his support for the labels’ lawsuit precisely because Monk, like so many Black artists of his era, was gravely underpaid for his work when he was alive. “Thelonious Monk was ripped off,” Holloway says. “Let me be frank about it. Anything that reduces the income to the estate is wrong. Period.”
In their lawsuit, the labels point out that neither they “nor their artists see a dime” from the Internet Archive’s alleged infringement. But for many, this artist-friendly flourish rings hollow as the music industry rakes in obscene amounts of money and the vast majority of artists, or their estates, see very little of it. Halperin calls it a “bad faith” argument that “takes the mantle of creators’ rights and perverts it in order to persecute a nonprofit digital library.”
The labels, Litman also notes, still own most of these older recordings outright and are able to keep profiting off their original exploitation with the backing of federal law. Starting in the Seventies, artists were granted a termination of transfer right that allowed them to eventually reclaim their copyrights; the Music Modernization Act did not extend that same right to legacy artists (or their estates) when pre-1972 recordings were finally granted federal copyright protection.
“This country owes the recording artists of the mid-20th century not only an apology, but a ton of money,” Litman says. “I don’t see the Great 78 Project taking any of that money out of any performer’s pocket.”
For someone like Mills, these contradictions are deeply personal. “These guys worked,” he says of the Mills Brothers. “They fulfilled every job they were asked to do, and they were so good.… For me, it’s all about getting a return on sweat equity.”
But Mills also recognizes that those returns have been stymied by forces far greater than the Internet Archive. He’s part of ongoing litigation against Universal accusing the label of withholding royalties for legacy artists and their estates. (Universal has denied the claims and settled with some of the plaintiffs.) He’s also keenly aware that, as Black artists, the Mills Brothers were not afforded the same financial and investment opportunities as their white counterparts. In the 1930s, Mills says, his dad moved out to Los Angeles to make movies and was unable to buy a house in the affluent, all-white Hancock Park neighborhood, even though he probably could have afforded three.
I remember what Lew Tucker told me about his father’s one big radio hit: “I think that paid for our house.”
Mills talks with passion and reverence about his family, but it’s tangled up in years of frustration. Universal still owns much of the Mills Brothers’ catalog, leaving the estate beholden to the label, whether it’s working on their behalf in the case of the Great 78 Project lawsuit, or against them in the allegations of withheld royalties.
“My parents, uncles, [and] grandfather probably put thousands of record company executives’ children through college while they were hoping to take care of their own,” Mills says.
And with years of frustration comes years of pain. There are so many things Mills would rather focus on — the Mills Brothers’ upcoming centennial (they formed in 1925), the concerts he continues to perform under the family banner, and his own new band, Orchids in Zoom. “It’s like pulling scabs all the time,” he says. “And I don’t want to hurt like that.”
“Why Are They Trying to Erase Us?”
In Kahle’s office, as our conversation and afternoon together draw to a close, I read to him something from a book he recommended to me called The Library: A Fragile History. Its prologue states, “Even if libraries are cherished, the contents of these collections require constant curation, and often painful decisions about what has continuing value and what must be disposed of.”
How has the Internet Archive — with its ever-growing collection — contended with this question? Ever the evangelist, Kahle replies that technology has made it moot.
“We’ve been able to build a library not only of famous people, but little people,” he says. “That’s what’s going to be destroyed by these corporations — the history of much more common people. It’s obvious they’re not doing any harm! Why are they doing this?”
Kahle often returns to this question of why? — searching for an answer that’ll explain the potential destruction of not only a digital trove of 78 rpm recordings, but everything else the Archive has preserved, its very mission: universal access to all knowledge. “Without us, people wouldn’t have a record,” Kahle says. “So why are they trying to erase us?”
The answer to his why? is evident in the actions of those aligned against him: long-frustrated rights holders and corporations who see little difference between the Internet Archive and illegal torrent sites like the Pirate Bay, and haven’t spent millions lobbying for a copyright system that favors their interests over the public domain for nothing.
“You would hope that there might be some balancing act, or that everybody could play nice in the sandbox, and come up with solutions that benefit all,” Kinney, the lawyer and copyright expert, says. She then adds with a perceptive laugh, “But that’s not really how business is done.”
And really, it’s business all the way down. For instance, both Turkewitz and Halperin independently suggest these lawsuits could be laying the groundwork for a more pressing copyright fight against artificial-intelligence companies using licensed work without permission to train large-language models for artificial intelligence.
“A part of litigation is about establishing precedent and letting the universe understand that you can’t go out and create an undertaking that relies on our product without coming to us to negotiate,” says Turkewitz.
But even if the labels prevail in protecting their products from the Internet Archive, there’s no guarantee that the actual creators (or their estates) will see any benefits. The labels don’t automatically get $621 million if they win, and how damages shake out is an open question. Sam Trust, a music-publishing vet who oversees the Doris Day estate, supports the suit, but calls the potential damages “absolutely absurd,” adding, “I would be surprised if it’s $41,000 worth of damages.”
And then there’s recent precedent: When the book publishers announced their summary judgment settlement with the Internet Archive last year, the Association of American Publishers said only that the “confidential” damages were enough to cover “significant attorney fees and costs.” No mention was made of how much money — if any — authors would see. (When asked if authors would see any of the settlement following the publishers’ victory on appeal, a rep for the AAP simply said, “The terms of the monetary payment are confidential.”)
Maybe, if the labels walk away with a fat check, they’ll do more than pay lawyers, pad bonuses, or boost shareholder value. Maybe they’ll set up a fund that goes directly to all the legacy artists and estates mentioned in the suit — effectively letting a nonprofit pay back the musicians and families those same labels have been accused of exploiting for decades.
The day Kahle shows me around the Internet Archive’s offices, the existential threat of all this litigation looms heavy, but his enthusiasm remains irrepressible. He’s still optimistic about the internet and the technology behind it, just “not the controlling entities leveraging the internet and the rise of what those monopolies have done to keep people ignorant.”
At the Internet Archive, Kahle and others are still trying to build the future he always envisioned. He excitedly introduces me to a group of people in the basement working on decentralized web projects — a new open-internet dream of a web that runs on direct connections between individuals, not moderated through dominant, centralized platforms. “This place is kind of the soul of the internet,” says one team member.
In the lobby, in the cheesy afterglow of “Concerto Boogie,” Kahle begins to muse: “One of the things about 78s that’s really wonderful, is this is the first time people heard themselves.”
There’s still plenty of awe in his voice, and it sticks as he picks from a small stack a postcard flyer for the Great 78 Project encouraging people to donate discs and join this new endeavor to preserve the past.
“The Great 78 Project was a community project; it is a very crowd-sourced, internet-style thing,” Kahle says. “It’s not the Internet Archive — it’s hundreds of collectors and institutions, all working together.”
And then we’re off again, whisked into another room in this cathedral, where a small team is inventing a new way to digitize microfiche.
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