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Beatles catalog pulled from download site BlueBeat

November 5, 2009 | 10:16 pm

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A music website that recently has been offering the entire Beatles catalog for downloading at 25 cents per song halted the sale Thursday after being hit with a copyright infringement lawsuit by Capitol Records, the group's U.S. label.

Bluebeat.com as of late Thursday still showed five Beatles albums, down from the entire catalog it had offered earlier in the week in its online store. The site still listed three Capitol collections and two others with material from the band's pre-fame days, but none of the tracks were accessible for downloading.

Bluebeat had argued in court filings that its downloads were legal because the company had created new versions that were exempt under the Copyright Act from Capitol's claim that they were pirated versions of protected recordings.

After Capitol filed suit on Wednesday, Bluebeat responded with a claim that it had the right to continue selling its downloads because they are excluded from copyright protection.

Lawyers for Bluebeat.com argued in papers filed in U.S. Central District Court in Los Angeles that the company’s website “markets and sells an entirely different sound recording than that copyrighted by Plaintiffs.” It does not specify what distinguishes its downloads from the authorized Beatles recordings.

BlueBeat_Screenshot Bluebeat’s filing says that the company’s downloads are allowed under an exclusion spelled out in section 114(b) of the Copyright Act applying to recordings that “imitate or simulate those in the copyrighted sound recording.”

That section of the act historically has covered imitators, so that recordings by a Beatles tribute band such as the Fab Four or Rain would not be guilty of violating the Beatles’ recording copyright. They would still be required to pay publishing royalties on any songs they recorded.

A copyright law expert at a major university, who asked not to be identified, said the argument holds little chance of succeeding in court.

“The whole purpose of the copyright protection enacted in 1972 was to protect against record piracy,” he said. “If you somehow imitate the recording, that’s allowed -- it’s not record piracy. If you are using the actual recorded sounds, even with digital manipulation, that doesn’t change it.”

Lawyers for Capitol called Bluebeat’s justification “nonsensical” and “completely false,” and that it “deliberately misconstrues the Copyright Act…and ultimately confirms that Defendants are in fact copying, distributing, and publicly performing Plaintiff’s copyrighted and pre-1972 sound recordings without license or authorization.”

“In essence,” Capitol’s reply states, “what defendants seem to be arguing is that because they copied plaintiffs’ sound recordings using their own proprietary technology, they have created a ‘new,’ ‘independently fixed’ sound recording. That is wrong.”

The Beatles’ catalog is considered the most significant holdout from iTunes and other legal online music retailers.

Lawyers for Capitol and Bluebeat did not immediately respond to requests for comment.

--Randy Lewis

EARLIER:

Meet the Beatles' USB drive; EMI files suit against BlueBeat for selling Beatles downloads

Beatles downloads for 25 cents? For now.

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The Beatles: Rock Band debuts to solid but not stellar sales

Photos: Top, the Beatles. Credit: Apple Corps. Middle: BlueBeat screenshot. Credit: BlueBeat.com. Bottom: 'Let It Be' cover. Credit: Apple Corps.

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