(UPDATED) Earlier this week, we reported that a little known U.S. based download site BlueBeat.com had begun selling previously unavailable tracks from The Beatles for just $.25. Everyone knew something strange was going on, but no one knew just how strange. Perhaps this message at the bottom of the company's web page should have been a tip-off:
All audio-visual works copyright © 2009 (reg. # PAu 3-407-524) BlueBeat, Inc, a subsidiary of MRT.BlueBeat transmits simulated live musical performances for free at 160 and 320 kb/s.
Uh? BlueBeat owns The Beatles' copyrights, as well as, those of Abba, ACDC, Ace Of Base and... those are just a few of the "A's" that are in in company's extensive catalog? EMI and the RIAA df course disagreed and filed a lawsuit to stop the download sales.
The Psycho-Acoustic Defense
Then came the company's unique response according to copyright attorney Ben Sheffner:
"Plaintiffs are not likely to succeed on the merits because Defendants' website markets and sells an entirely different sound recording than that copyrighted by Plaintiffs."
BlueBeat says it "independently developed [its] own original sounds" that consist of "entirely different sound recording[s]" through a technical process it calls "psycho-acoustic simulation." BlueBeat even says it obtained copyright registrations on such "new" recordings (which, as the plaintiffs point out, are exactly the same as the original recordings).
In short, by some mystical process that also adds a few pictures to the file, Bluebeat claims to have created a brand new recording that sounds remarkably like the original.
BlueBeat claims it is protected by 17 U.S.C. § 114(b):
"The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording."
The law was intended to protect artists doing cover versions of somebody else's tracks ;not someone who is cloning them and adding a few pictures. A judge agreed and yesterday issued an injunction to stop Bluebeat. As of this morning, the site was still up.
