Beatles Beat Back Bizaare BlueBeat Legal Defense
(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.
I definitely respect their audacity and balls quotient.
This would be more surreal if it weren’t for the fact that BlueBeat are actually technically correct about exactly what an MP3, or any other digitally rendered version of a song is, albeit while also blatantly profiting from ideas that they do not own, which makes them no different from any number of multinational content cartels.
This is a cautionary tale about how to stay out of court. If the IP licensors (Labels) had not originally considered the engineers who created digital music software to be too lowly to take meetings with way back in the heady days of 1995-97, then they might have struck an equitable compact that would have cut physical overhead and boosted sales….but alas, record execs are technically ignorant steaming piles of maggoty arrogance…so progress was NEVER on the table.
I for one would like to see this go to the Supreme Court.
If you disregard technological expertise you will eventually be owned by it.
brendan b brown
wheatus.com
Audacity and balls aside, the law is still on EMI’s side on this one. They can still sue for misappropriation because the recordings still sound “too much” like the originals.
You gotta change the law, not your tune.
Myth: The music industry was too late in realizing it needed to work with the internet.
Tragedy: Many music industry veterans were eager to work with the internet from 1995 through 1999, myself included. I first placed music online as a WAV file under promotional license on behalf of selling CDs for my own indie record label in 1997. I began negotiations with eMusic in late 1998 for them to sell downloads from an artist I represented, paying us a royalty per sale. Before eMusic there was former GRP Records CEO Larry Rosen’s online retail website Music Boulevard; musician Todd Rundgren was marketing music products at his website; and IBM partnered with the Big 5 music labels to open an MP3 download store on the cable internet system in San Diego. In the summer of 1999, Napster software for free copying and distribution of content under copyright without permission from the authors as otherwise guaranteed by the U.S. Constitution, changed everything. Though Napster was found to be illegal, as have all the rest of these services taken to court so far, including Pirate Bay in 2009, the zealotry of P2P supporters to have free access to content under copyright has not diminished. The Music industry’s legitimate effort to maintain licenses, royalties, and legal website distribution has been continuously thwarted by the proponents of P2P technology. Only Steve Jobs’iTunes successfully supports the civil rights of authors and inventors.
BlueBeat is obviously going to lose, but this raises something really interesting: what actually defines a cover song will become very hazy as technology improves.
It’s perfectly legitimate for me to sequence any song in my DAW as a purely electronic arrangement, and sell that as a cover song. What happens when audio analysis improves to the point where the DAW can perform these functions automatically — detect all the pitches, select patches based on timbre, etc? It’s only a matter of time before that is technically possible. I run my music collection through it, fill out a few hundred compulsory license requests, and start selling ‘my’ covers?
That is correct, and part of my original point. And while it may be true that some lables and artists did seek partnerships with digital music companies, the inability to recognize aiff for the software that it is, and the cd as more than just another format is THE critical failure of the 80’s. I don’t think one single label head knew, when they falsey advertised the CD as a superior quality product that they had actually made the switch from selling a mechanical representaion of IP to a decimated digital rendering of IP.
Record companies ignorantly dipped their hands into the software business in the 80’s without the proper expertise or even a basic knowlege of that emerging product design.
It’s as if they put thier valuables out with the garbage thinking that it wouldn’t be taken by anyone….well, it has been.
The moral of this story is as it has always been…when society marginalizes engineers it suffers a heavy consequence.
Hey any Dusty Springfield fans out there?
Since you guys are talking about 60’s music – you gotta see this very cool series on Dusty Springfield and some other top groups of the 60’s – http://www.reelinintheyears.com/britishinvasion