Facing a contempt of court charge, BlueBeat.com, an obscure music website, has yanked Beatles remasters off its site after EMI, the band's record label, sued for copyright infringement, though some non-remastered Beatles albums and songs are apparently still available on the site. EMI had charged that BlueBeat "engaged in music piracy of the most blatant and harmful kind," naming Hank Risan, of Santa Cruz, Calif., as the head of the operation. As the songs came down, more details emerged about BlueBeat's "psycho-acoustic simulation" defense, which U.S. District Judge John F. Walter practically laughed out of court.
"Psychoacoustic simulations are my synthetic creation of that series of sounds which best expresses the way I believe a particular melody should be heard as a live performance," Risan argued in a letter to the Recording Association Industry of America. Say what?
Responding to an email from Steve Marks, the RIAA's EVP and general counsel, Risan explained that he -- not the Beatles -- had created the songs that sounded just like Beatles songs for sale on his website.
"I authored the sound recordings that are being used by psycho-acoustic simulation," Risan said, adding that for this reason, the recordings "are not within the exclusive rights of your members."
And incredulous Marks responded, "What is psycho acoustic simulation?"
To which Risan replied: "Psychoacoustic simulations are my synthetic creation of that series of sounds which best expresses the way I believe a particular melody should be heard as a live performance. I had explained this back to your organization, in late 2001, when I was at your offices in Washington, for the purpose of demonstrating BlueBeat and our X1 technologies for digital transmission protection."
In response to the EMI lawsuit, Risan had claimed that his site sells "an entirely different sound recording" than that copyrighted by EMI, and had "independently developed [its] own original sounds" that consist of "entirely different sound recording[s]" through a technical process called "psycho-acoustic simulation."
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But Judge Walter was not buying that Risan was selling. He issued an immediate injunction; the songs were quickly pulled. Walter ruled that the defendants "do not submit any declarations or reliable evidence in support of their claim that they 'independently developed their own original sounds.'"
Walter also rejected BlueBeat's bizarre 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."
Walter was not swayed, 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.
Risan should head back to the drawing board and come up with another legal argument. "Psycho-acoustic simulation" is just not getting it done.
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