Beatles 'psycho-acoustic simulation' defense rejected in Web piracy case

Well, it's official.

"Psycho-acoustic simulation" is not an acceptable defense for digital music piracy in the state of California. A judge in Los Angeles issued a temporary restraining order Thursday enjoining music site BlueBeat.com from selling and streaming Beatles songs. U.S. District Judge John F. Walter was not swayed by the Santa Cruz-based BlueBeat's argument that it created "new" recordings by altering the songs through what it called "psycho-acoustic simulation." But as of 7 p.m. Eastern Standard Time Thursday, Beatles songs remained up for sale on BlueBeat.com.

"They can't ignore it," copyright lawyer Ben Sheffner told DailyFinance, referring to the site. "If they do they will be held in contempt. I bet it will be down -- or at least all the EMI stuff -- within a few hours."
The judge slapped the site with a restraining order effective immediately.

"By offering below-the-market-value downloads of Plaintiffs' Recordings, as well as free digital streaming transmissions of Plaintiffs' Recordings, Defendants' actions can cause irreparable damage to the perceived value of Plaintiffs' music and to Plaintiffs' digital distribution strategies and relationships," Judge Walter wrote.

'Psycho-acoustic simulation'

EMI had filed a lawsuit against BlueBeat, a previously obscure music website, claiming it was illegally selling and streaming Beatles songs. The label has accused BlueBeat of "shocking," "willful" and "overtly defiant" conduct. BlueBeat has denied the charge by saying it is protected by its "psycho-acoustic simulation."

Walter was not buying that argument, saying the defendants "do not submit any declarations or reliable evidence in support of their claim that they 'independently developed their own original sounds.'"

The judge goes on to reject BlueBeat's claim that "because they do not transmit digital audio performances, but 'audio visual performances with related sounds' pursuant to their copyrights, they cannot be liable for copyright infringement of Defendants' digital audio performances."

No dice, ruled Walter, citing previous case law, which has held that one "cannot invalidate the copyright of an independent and preexisting sound recording, simply by incorporating that sound recording into an audiovisual work. He found a likelihood of irreparable harm.

Defense is 'absurd'

Sheffner decribed BlueBeat's defense as "absurd."

"One cannot copy a sound recording and then avoid an infringement claim by adding pictures," he said.

In the lawsuit, EMI had charged that BlueBeat "engaged in music piracy of the most blatant and harmful kind." The suit names Hank Risan, of Santa Cruz, Calif., as the head of the BlueBeat, which claims that it sells "an entirely different sound recording than that copyrighted by Plaintiffs." The website says it "independently developed [its] own original sounds" that consist of "entirely different sound recording[s]" through a technical process called "psycho-acoustic simulation."

In the lawsuit, EMI says it is "entitled" to $150,000 "for each copyright infringed."

Sheffner explained that if EMI "opts for statutory damages, it does NOT matter how many copies BlueBeat sold. Statutory damages are awarded per work -- not per infringement. So If they get statutory damages for infringement of 'Love Me Do,' the jury can award from $750 to $150,000, whether they actually sold 1 copy or a million."

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