Saturday 21 November 2009

The curious case of the psychoacoustic Beatles' tracks

At the start of the month the internet was alive with rumours and then reports that a US website had made the Beatles catalogue available online – with tracks selling at the bargain price of 25c each. The news prompted the fab four’s label EMI to issue legal proceedings against which in turn prompted the boss of Music Rights Technologies, owners of Bluebeat, to produce a novel argument that his company were not infringing EMI's copyrights - because they were their's. Hank Risan’s argument was this - before making music files available via the service, his company made a new recording of each track using what he calls "psychoacoustic simulation". By doing this, Risan says his company creates a new master recording and one in which they, rather than EMI or Apple Corp, own the recording copyright. So Risan’s argument was that providing BlueBeat pay a mechanical royalty to the songwriter or publisher who owns the actual song, they don't need any licence from a record company or recording artist. The matter escalated when EMI realised that other recordings from the EMI catalogue were online including Blondie, Blur, Coldplay, Radiohead and Norah Jones and EMI pressed ahead with an action for a preliminary injunction to remove the tracks from Bluebeat with immediate effect, and were granted a temporary restraining order.

Risan’s failed defence was that the “re-recordings” of the sound recordings produced “entirely new and original sounds” and the claimants’ “copyright protection does not extend to the independent fixation of sounds other than those contained in their copyrighted records”. Specifically, BlueBeat argued that their sound recordings fell within the exception in Section 114(b) of the US Copyright Act which says that “The exclusive rights of the owner of a 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 consist entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording…”. Reports said that EMI are ultimately seeking a permanent injunction and general damages to be determined or statutory damages for each infringed copyright (a maximum of £150,000 per infringement) and are also additionally seeking exemplary/punitive damages.

There was a strange twist in the tail of this case as Risan and Media Rights Technologies were (and are) well known commentators on illegal music downloading, seemingly from a position of support for the record industry over the last ten years, MRT offered consultancy to record labels on digital rights solutions and appears to have run an internet radio station, streaming music legally, without controversy for some time. There were also some rather strange press releases from Risan in the period surrounding the controversy with one statement saying “we worked with EMI directly, and the RIAA [Recording Industry Association of America] in secret agreements to create these works lawfully. We've been doing so for many, many years. We were about to provide the court with such evidence that EMI knew we had in our possession. We worked with these guys. The evidence wasn't presented because we haven't had a hearing, and the judge made a ruling".

And indeed a judge did make a ruling - Judge John F Walker has now indefinitely extended EMI's order based on evidence already submitted by both sides, issuing an preliminary injunction banning from selling or streaming EMI recordings (included allegedly reconstructed EMI recordings) without a licence. In his ruling, Judge Walter writes "Mr Risan fails to provide any details or evidence about the 'technological process' that defendants contend was used to create the 'new' recordings or adequately explain how the 'new' recordings differ in any meaningful way from plaintiffs' recordings".

Risan is said to be “shocked” at Judge Walters pre-emptive ruling saying “we went and actually got permission at each step of the way. The first step was to show them the technology, which they tested and found to be unbreakable. The second step was they authorised us to make the protected sound recordings. The third part, they totally approved the BlueBeat site - all the major labels and the RIAA". Risan says he is consulting with his lawyers regarding his options for appeal and also said that would return to service "shortly" as soon as a further agreement could be worked out with EMI. The website is currently offline.

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