A federal court in Los Angeles this week issued a temporary restraining order against a music website that recently had been offering the entire Beatles catalog for downloading at 25 cents per song. The Santa Cruz-based BlueBeat earlier in the week was hit with a copyright infringement lawsuit by EMI's Capitol Records, the group's U.S. label.
The order set back a novel legal argument by BlueBeat that songs produced through digital regeneration are akin to songs performed by cover bands and therefore do not run afoul of copyright law. BlueBeat had argued in court filings that its downloads were legal because the company had created entirely new versions by computer through a process called "psychoacoustic simulations" that makes the re-created songs sound just like the original recordings.
"We analyze them and then synthesize new songs, just as you would read a book and write an article," said BlueBeat Chief Executive Hank Risan. The site's "intention is to create a live performance, as if you are there listening to the actual performers doing the work as opposed to a copy or a phonorecord or CD of the work."
But the court didn't buy it. On Thursday, U.S. District Court Judge John F. Walter sided with EMI. "Plaintiffs have . . . produced sufficient evidence demonstrating that [the] defendants copied protected elements of their recordings," the ruling said. "Indeed, screen shots from BlueBeat's website show track titles with the same names as the plaintiff's copyrighted works."
An EMI spokeswoman said the company would not comment on the legal proceedings. The court will hear arguments at a Nov. 20 hearing.
Lawyers for BlueBeat argued in papers filed in U.S. Central District Court in Los Angeles that the company's website "markets and sells an entirely different sound recording than that copyrighted by plaintiffs." It does not specify what distinguishes its downloads from the authorized Beatles recordings.
In its filing, BlueBeat argued that the company's downloads are allowed under an exclusion spelled out in Section 114(b) of the Copyright Act applying to recordings that "imitate or simulate those in the copyrighted sound recording," and therefore excluded from claims of copyright protection.
That section of the act historically has covered imitators, so that recordings by a Beatles tribute band such as the Fab Four or Rain would not be guilty of violating the Beatles' recording copyright. They would still be required to pay publishing royalties on any songs they recorded.
Risan said the original recorded sounds were not used. Though it sounds like Paul McCartney singing, Risan said, "it's not his voice. It's an independent simulation of his voice. It sounds like it, to most ears, but it's independently created."
Ben Sheffner, a Los Angeles-based copyright lawyer who has defended such media entities as Fox and NBC, dismissed BlueBeat's claims as "frivolous." Although the copyright law protects artists who cover the Beatles, "it does not say that I can take a recording of the actual Beatles playing and run it through my computer and say it's a new recording," Sheffner said.
Capitol Records' lawyers called BlueBeat's justification "nonsensical" and "completely false," and said it "deliberately misconstrues the Copyright Act . . . and ultimately confirms that defendants are in fact copying, distributing, and publicly performing [the] plaintiff's copyrighted and pre-1972 sound recordings without license or authorization."
"In essence," Capitol's reply states, "what defendants seem to be arguing is that because they copied [the plaintiff's] sound recordings using their own proprietary technology, they have created a 'new,' 'independently fixed' sound recording. That is wrong."
Anthony Falzone, a lecturer at Stanford Law School, said it ultimately may come down to the exact method used to create the simulations, as Section 114(b) allows for some room to "imitate and simulate sound recordings."
He added, "In so far as BlueBeat is selling something that sounds exactly like the Beatles, they probably have a tough road ahead of them."