> I think you could argue that NO recording this old should still be under copyright
In a court of law? Not seriously nor credibly. The term of a copyright is provided for by statute.
On the other hand, we constructed the court of law to help society, not the other way around. Same goes for statutes.
An American would have to argue this while running for office, and then argue it in Congress. Alternatively, get a position to exploit the "copyright exception" provisions.
Pretty sure he's talking about the way things should be, not the way things are. The way things should be: None of this would be a problem. The way things are: Brewster Kahle is jeopardizing the archive's mission with his cavalier attitude towards copyright that is causing the archive to lose lawsuit after lawsuit. While fighting bad law is certainly a good thing, maybe imperiling the archive in the process is not. Unfortunately, such nuanced takes seem to be lost on people who treat these issues as a form of team sports and demand you either be simply pro- or anti-.