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A federal judge on Thursday ordered a Santa Cruz company to immediately quit selling Beatles and other music on its online site, setting aside a preposterous argument that it had copyrights on songs via a process called “psycho-acoustic simulation.”
A Los Angeles federal judge set aside arguments from Hank Risan, owner of BlueBeat and other companies named as defendants in the lawsuit EMI filed on Tuesday. His novel defense to allegations he was unlawfully selling the entire stereo Beatles catalog without permission was that he — and not EMI or the Beatles’ Apple Corp — owns these sound recordings, because he re-recorded new versions of the songs using what he termed “psycho-acoustic simulation.”
Risan faces perhaps millions of dollars in damages under the Copyright Act. And copyright attorneys said his defense was laughable and carries no weight. If successful, however, it would have turned copyright on its head, leaving musical rightsholders defenseless against wanton infringement.
“They’re hosed. That just doesn’t make any sense,” said Scott Mackenzie, a Dallas copyright attorney. “I don’t even see the basis of their theory.”
Ben Sheffner, of theCopyrights and Campaigns blog, points out that BlueBeat’s defense rested on copyright law allowing musicians to produce cover versions of songs for a licensing fee.
“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,” Sheffner, a copyright attorney, wrote.
Risan told EMI in an e-mail (Exhibit A, below) that he successfully registered his “new” copyrights with the United States Copyright Office. The ID3 tags of the Beatles songs sold on BlueBeat.com list “2009 BlueBeat.com” as the copyright holder.
“Defendants independently developed their own original sounds,” BlueBeat told the court.
But U.S. District Judge John F. Walter was not buying it, ruling (.pdf) BlueBeat did not submit “any declarations or reliable evidence in support of their claim that they ‘independently developed their own original sounds.'”
Neither Risan nor his attorneys returned inquiries for comment to explain the company’s “psycho-acoustic simulation” method.
To get a sense of how much these “new” recordings resemble the originals, listen to this short sample of The Beatles’ “Sun King,” which I purchased from BlueBeat.com on Friday:
Here’s Risan’s opposition to EMI’s application for a restraining order to stop BlueBeat from selling the files, filed on Wednesday:
And here’s his Exhibit A, an e-mail to RIAA executive vice president and general counsel Steven Marks in which he claims to have copyrighted new sound recordings of the Beatles catalog:
Staff Writer David Kravets contributed to this report.
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