Wednesday, November 4, 2009

Introducing the 'psycho-acoustic simulation' defense to copyright infringement

The works of virtually every major recording artist are now available, through legitimate channels, for digital download. Except, of course, for The Beatles. Rumors surface from time to time that the Fab Four will make it to iTunes, but, for now, they remain locked on CDs, vinyl, or USB drive (at least legally). So it was big news when, on October 30, a site called began offering 25-cent downloads, and free streams, of The Beatles' catalog. BlueBeat insisted it was acting legally, but EMI, the parent of The Beatles' label Capitol Records, said it had not issued licenses to the site.

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.


  1. The Bluebeat situation makes more sense once you realize it's the same outfit that sent C&D letters to Microsoft and others a few years back for allegedly violation Section 1201 by not using "effective" technological measures on their audio devices (mentioned in the Ars Technica article linked to above).

  2. The "psycho-acoustic simulation" that Blue Beat is going on about would seem likely to be the process of converting WAV files to MP3. As a gross oversimplification, the MP3 conversion process uses "psycho-acoustic" principles to determine what parts of the data can be thrown away with minimal impact on the listener -- this is how MP3 files get to be so small, relative to the original WAV files from the CD.

    Blue Beat appear to be arguing that what is copyrighted is the precise waveform. As the MP3 does not produce exactly the same waveform as the original CD, it must be a new work!

    The logic error, I expect, is that the waveform is not the sound -- it is the fixation of the sound.

    Blue Beat would appear to be screwed by their own citation of section 114, which refers to "directly or indirectly capture the original sounds". I Am Not A Lawyer, but I just don't see how that flies.

    Still, Blue Beat has brightened up a dreary afternoon. :-)

    -- wallow-T

  3. Is this really a, "I ripped, therefore I own," argument? Seriously?

    What if I, "psycho-visually simulated," the entire BlueBeat Website -- would *that* be legal, too? (granted, I'd have to clean up the code - can't stand messy code!)

    Oh, but hey - isn't this what, and sites like it, are doing, too? Nothing like a little outsourced, psycho-audio/visual simulation to save a buck... (aw, shucks - educated programmers and designers don't deserve anywhere near the protection as some doped-up, bi-polar, suicidal rock star, right? Heck! You can work a programmer as much unpaid overtime as you like! Try THAT with a tone-deaf teen-scream-queen... who just happens to be putting together her latest 'recording' on a pirated copy of Logic... wait, bring my pitch down by half an octave, will you? That's better... James Earl Jones has nothing on me!)

    It seems like the right to, "get paid for the work you do," is falling by the way-side everywhere you look. In fact, doing so is in high demand by, "the people." Encouraging (and, in some cases, forcing) people to "volunteer" (or work for 90% of what they earned) is actually in vogue at the moment. Wanna guess who's taken a high profile role in advocating this? (hint: some of them are members of RIAA or MPAA...or both!)

    So, whom do you protect? Who's work is worth protecting and paying for, and who's ... isn't?

    Think carefully about your answer.

  4. Valid points taken, the movie industy is next...NEXT!

  5. This is awesome. I hope they lose, because they're clearly going against the intent of the law if not the letter, but you have to appreciate the giant brass ones on Blue Beat.

  6. Some thoughts to ponder...

    Hypothetical case 1: I record and assemble a library of instrument sounds, and then write a software program which chooses from and assembles these original recordings into something which resembles a copyrighted work.

    Hypothetical case 2: I collect publicly available information and statistics about a copyrighted work. As I gain more information, I can construct an increasingly accurate resemblance of the original.

    Does it make a difference if the reconstructions are sufficiently accurate to convince an expert, just accurate enough to satisfy the desires of most people, noticably inaccurate but tolerably so, or not accurate at all?

    Does it make a difference if technology is used to automate the process?

  7. No need for an intellectual discussion about the legal fine-points folks. This is clearly a publicity stunt from these Bluebeat jokers. I'm guessing Bluebeat isn't doing so well as a business and basically has nothing to lose by going down in a hail of legal gunfire.

  8. Ooooh - excellent hypotheticals!

    What is really copyrighted? The performances and arrangements. So, band members (performers) and authors get paid for their work.

    Would either hypothetical case apply to copyrighted performances? Mmmmaybe.

    If you listen to, "Maxwell's Silver Hammer," and hear McCartney's giggle (Lennon was reportedly mooning him from the control booth), and you duplicate that in some sort of electronic simulation, then the performance is indeed being duplicated.

    If you arrange synthesized or pre-recorded, generic instruments into a tune that sounds or, statistically, closely matches copyrighted material, then the arrangement is being duplicated.

    If it's "close" (but not an exact match), then this new, derivative work, carries the liability of elevator music. So, Harry Fox would have to get his nickel from you.

    What if it's an exact match?

    Wouldn't it be considered a forgery? Wouldn't it be exactly like the performance - indistinguishable from the original? At a minimum, Harry Fox. At most, TRO.

    But getting, "close," or even, "exact," is difficult, too. When John Fogerty released, "The Old Man Down The Road," he was sued because it sounded too much like, "Run Through The Jungle," from his CCR days (yes, kiddies, you can Google CCR for yourselves). He won by playing both songs in the courtroom - demonstrating the differences and proving the former an original composition.

    We won't even go into Vanilla Ice and his selective interpretation of "sampling" vs. "stealing." Nor will we touch the consequent flood of "artists" who've followed him (of all colors and sexes, now that there are more than two), seemingly devoid of any creative talent of their own; but hey, this is the age of "Miami Vice," and, "The A-Team," hitting the big screen - creativity, as a genetic trait, simply doesn't exist anymore.

    I can't imagine a defense any reasonable jury would buy if someone were to play two works, and both sounded exactly the same. (then again, I'm not a slimy attorney, either!)

    That - that jury - is where BlueBeat will fail. No amount of technological trickery or slight of hand will save them from a jury. What nails their coffin shut is that they're claiming the recordings as theirs AND the likenesses of the original performers, all the marketing, the bands' names and even ownership of performers' names (how else could they claim to release Abbey Road with all four Beatles in full stride on the album cover?)

  9. OMG I had this same exact idea that Bluebottle or Bluebeat whatever is doing. But then the drugs wore off.

  10. With mp3 the parts that are left, the parts not "thrown away" are still the "actual sounds fixed in the recording", or at least a portion thereof.
    What of something like the Zenph "re-recordings" of the CBC Gould recordings. I don't think anyone has tried to argue that the CBC doesn't own at least a proportion of the rights, but all of the sounds in the new recordings are from a piano that was played by a computer long after Gould's death. None of the "actual" sounds "fixed" in the CBC tapes exists in the newly released CD's.
    If this BlueBeat "simulation" is really a re-synthesis of even the vocal parts, does the letter of the law support it being anyting other than a new recording?
    Of course there is the small matter of it being identified and represented as a beatles recording on their website...


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