And so yesterday the legal hammer predictably came down on the Santa Cruz, CA-based BlueBeat. Capitol and several other record labels sued BlueBeat for copyright infringement, alleging in a Nov. 3 complaint filed in federal court in Los Angeles that the site is "engaged in music piracy of the most blatant and harmful kind." The labels also moved for a temporary restraining order enjoining BlueBeat's allegedly infringing conduct, which includes offering songs by The Beatles and many other artists.
What's really fascinating is BlueBeat's response. BlueBeat claims that "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).
BlueBeat claims its scheme is protected by 17 U.S.C. § 114(b), which provides:
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.But, as the labels point out in their reply brief, Section 114 simply permits a band that records a cover version of a song to attempt to imitate the original recording, without fear of a copyright lawsuit by the original recording artist. It does not permit a company to re-record a recording by some new technical means -- even a "psycho-acoustic simulation" device -- and then sell the "new" recordings. BlueBeat also claims, "Defendants do not transmit digital audio performances; instead, Defendants deliver audio visual performance with related sounds pursuant to their copyrights." This is absurd. One cannot copy a sound recording and then avoid an infringement claim by adding pictures.
Unless BlueBeat can come up with some better arguments than this (and if it had better arguments, I'm sure it would have already made them), it is not long for this world. And we can all go back to speculating when The Beatles will be available on iTunes.
Update: the court granted the plaintiffs' motion for a TRO. I suspect this is the last we will see of the "psycho-acoustic simulation" defense.