OK, so let’s go through this again. You take the original recording…Make a single copy. Analyze it. Destroy it. Create a new simulation based on parametrics of sound. You’ll be shocked at how the brain, in terms of its perceptual coding in the central nervous system, turns these sounds into electrical impulses, which then affect your mood, your cognizance, etc. Pyschoacoustic simulation exploits aspects of perception that are not present in the original work.
It’s an art. The first simulations we did were awful. It’s an art. It’s not a copying at all.
Perhaps most telling, when reporter Todd Martens asked Risan about the fact that the BlueBeat site bills the recordings as actual Beatles recordings, Risan -- who is a defendant in the labels' lawsuit -- had no answer:
But I’m looking at our screenshots. It says, ‘Let It Be … Naked’ Capitol Records, 2003. I would think I’m buying the Capitol Records album that was remastered and released in 2003.I don’t know what to say about that.
The "pyscho-acoustic simulation" does not improve with age, or further explication.
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It's been so difficult for me to call shenanigans on the folks at BlueBeat when they are so completely out there in their explanations. Part of me wants to know what they're really doing with the sound recordings to come up with such an explanation. My money's on simply ripping mp3's - which do employ psychoacoustics in the compression algorithm - from the original albums.
ReplyDeleteBlueBeat.com appears to have been down since last night.
ReplyDeleteIf I were the finder of fact, my question to Mr. Risan would be simple:
ReplyDeleteWhere is the blank slate?
In other words, where is the discontinuity between the protected work and the new work? With a "cover version," that's an easy question to answer. The new band performs the work. There is no continuity in performance, so there is no infringement of performance. There is continuity in lyrics and arrangement, and cover bands are required to pay royalties to the rightsholders of lyrics and arrangements.
In the first hypothetical above, if the algorithm produces a work that sounds similar to a pre-existing work, while we may for obvious reasons place the burden of proof on the programmer, if he can meet it, he may very well have a defense to claims of infringement. (When I was in law school, the example used was that if somebody who had never heard of Herman Melville or read Moby Dick AND COULD PROVE IT, rewrote Moby Dick from scratch, he very well could claim original creation.) The blank slate is giving the computer its head and taking what you get out of it. If it happens to be similar to something already extant, at least the argument could be made. (And a statistical analysis could easily be used to demonstrate whether the output was really random or was designed to achieve an emulation.)
Here, we fed in a performance and we got a performance out. Mr. Risan's software does not do anything until you give it a pre-existing work to manipulate. There is no discontinuity and the final output is a derivative work. There is no difference, for technical purposes of the copyright law, between the examples Mr. Risan himself gives (slowing down the tape, etc) and whatever he allegedly did to the original works. Only if the work is *transformative* could he even claim a Fair Use, let alone argue that the result is a new and original work. "Making it sound live" is not, no matter how many sockpuppets may claim otherwise, a transformative act.
M
Whoops! I just realized I referred to a hypothetical that was actually in a comment to another entry. See the entry entitled "Introducing the 'psycho-acoustic simulation..." and comments regarding a hypothetical music-writing computer program.
ReplyDeleteIt seems like the irreparable harm that Bluebeat will suffer through this TRO (100% of their business) will far exceed that of the labels (0.01% or less of their business) - who would buy these psycho-acoustic simulations in place of the original anyway? At the very least they would appear to be derivative works.
ReplyDeleteLet's hope plaintiffs had to post a substantial bond to compensate Bluebeat in the end.
@Anonymous 8:09:
ReplyDeleteThe songs BlueBeat was selling are indistinguishable from the original Beatles versions. As far as I can tell, they are perfect substitutes. This appears to be copyright infringement of the most blatant kind, and preliminary injunctive relief is made for just these kind of situations.
But this all begs the question: What if a tribute band recorded a Beatles song on their own with their own instrument (without computers or manipulating an original Beatles recording in any way)and managed to produce a new recording so close to the original that the casual listener wouldn't be able to distinguish between the two.
ReplyDeleteIs it your position that cover songs without the original artist's permission should be allowed under copyright law - as long as they always sound different? Is it the 'process' that is important? Or rather the ultimate effect on the listener/consumer of the work?
Why are cover songs even allowed at all? If you believe in the general dictates of copyright law and so-called 'derivative works', shouldn't artists be allowed to prevent the creation of all such 'cover song' works?
@Anonymous 12:09:
ReplyDeleteYou write:
"But this all begs the question: What if a tribute band recorded a Beatles song on their own with their own instrument (without computers or manipulating an original Beatles recording in any way)and managed to produce a new recording so close to the original that the casual listener wouldn't be able to distinguish between the two."
That's exactly the situation that Section 114(b) addresses and says is perfectly legal:
"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."