Court again rejects BlueBeat's 'psycho-acoustic simulation' defense; issues preliminary injunction against sale and streaming of EMI songs

After receiving additional argument and evidence on BlueBeat.com's "psycho-acoustic simulation" defense, federal judge John Walter today extended his ban on the site's streaming and sale of Beatles and other EMI songs, issuing a preliminary injunction after finding that the record label plaintiffs "have made a clear showing that they are likely to suceed on the merits" in their copyright suit. The court had previously issued a temporary restraining order against the site, which was offering free streams and 25-cent downloads of songs without licenses from the owners of the sound recordings.

In this round, the court was presented with a fuller explanation of the "psycho-acoustic simulation" defense, through a declaration from BlueBeat CEO Hank Risan. Explained Risan, a mathematician and biologist by training:

Every musical sound in a sound recording has a point of origin, called a source point, as well as a capture point, where the sound is affixed. To create “pure sound” simulations, I purchased CD’s of sound recordings over the counter. I made one ephemeral copy of each recording, as authorized by section 112, destroying same shortly after the simulations were created. The original sounds were partitioned into segments for observation. These segments were analyzed by artistic operators who, employing principles of psychoacoustics and advanced harmonic analysis, synthesized an independent parametric model of the sounds. A firewall was utilized to preserve independence between the sounds of the model and those of the original recording. . . . Positing assumptions as to the location of the microphone and special relationship to the voice and instruments involved in a given recorded performance, the artistic operator then generated and fixed new sounds by selecting new capture points and new source points in a new virtual three dimensional computer-staged environment. The simulation, thus created, contained new and original spherical source point waves.

Judge Walter wasn't impressed:

The Court finds that the Mr. Risan’s Declaration provides little, if any, evidentiary support for Defendants’ position, and, aside from the passage quoted above, is largely irrelevant. Specifically, Mr. Risan fails to provide any details or evidence about the “technological process” that Defendants contend was used to create the “new” recordings, or adequately explain how the “new” recordings differ in any meaningful way from Plaintiffs’ Recordings.

However, Mr. Risan is very clear on one critical fact: In order to create the recordings on the BlueBeat Website, he admits that he had to create and use a digital copy of Plaintiffs’ Recordings.4 Given this admission, the Court concludes that it is virtually impossible that the recordings on the BlueBeat Website consist “entirely of an independent fixation of other sounds” pursuant to 17 U.S.C. § 114(b). Indeed, although Mr. Risan claims that “artistic operators” made changes to parameters such as pitch, loudness, rhythm, timbre, and space, Defendants’ conduct appears to be substantively no different than the defendants in United States v. Taxe, 540 F.2d 961 (9th Cir. 1976). There, the defendants used “specially adapted electronic tape equipment” to re-record sound recordings, and change them by increasing or decreasing the recording speed, introducing reverberation or echo, eliminating or reducing portions of the musical sounds, and producing additional sounds by synthesizers. Taxe, 540 F.2d at 964. The district court rejected any claim that this re-recording constituted an “independent fixation,” and the Ninth Circuit agreed, stating: “The copyright owner’s right to reproduce the sound recording is limited to recapture of the original sounds, but that right can be infringed by an unauthorized re-recording which, despite any changes in the sounds duplicated, results in a work of ‘substantial similarity.’” Id. at n. 2.

Moreover, Plaintiffs have presented very compelling and largely unrefuted evidence, including the Declarations of Thomas Schlum, Pietro Perona, Ph.D, and James D. Berkley, from which the Court finds that the recordings on the BlueBeat Website were not “independent fixation[s] of other sounds” but were indeed copies that directly or indirectly recaptured the actual sounds fixed in Plaintiffs’ Recordings.

Here are the record labels' reply papers in support of the preliminary injunction, which include the expert declarations referenced by the court. And here is Bluebeat's opposition to the preliminary injunction motion.

BlueBeat.com remains inaccessible. This latest ruling doesn't make its return any more likely.