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Q&A: BlueBeat’s Hank Risan on selling downloads, the Beatles and 'psychoacoustics'

November 7, 2009 | 12:35 pm

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Until a few days ago, Santa Cruz-based BlueBeat was a largely unknown streaming music site. Then the Beatles catalog went on sale -- at a quarter per song -- and BlueBeat became a national headline.

A federal court in Los Angeles this week issued a temporary restraining order against the site, which  earlier in the week had been hit with a copyright infringement lawsuit by EMI’s Capitol Records, the Beatles’ U.S. label.

Risan The order set back, at least initially, a novel legal argument advanced by BlueBeat that songs produced through digital regeneration are akin to songs performed by “cover” bands and therefore do not run afoul of copyright law. BlueBeat had argued in court filings that its downloads were legal because the company had created entirely new versions by a computer through a process called “psychoacoustic simulations,” which makes the recreated songs sound just like the original recordings.

“We analyze them and then synthesize new songs, just as you would read a book and write an article,” BlueBeat Chief Executive Hank Risan told Pop & Hiss on Friday. The site’s “intention,” he added, “is to create a live performance, as if you are there listening to the actual performers doing the work as opposed to a copy or a phonorecord or CD of the work.”

But the court didn’t buy it. On Thursday, U.S. District Court Judge John F. Walter sided with EMI. “Plaintiffs have ... produced sufficient evidence demonstrating that defendants copied protected elements of their recordings,” read the ruling. “Indeed, screenshots from BlueBeat’s website show track titles, with the same names as the plaintiff’s copyrighted works.”

A spokeswoman for EMI said the company would not comment on the legal proceedings.

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.”

My colleague Randy Lewis and I worked together on this story for Saturday’s Business section, which also offers the opinions of some legal experts on the matter. Below, you will find the complete Q&A with BlueBeat’s Risan.

The company’s founder called me and said he was willing to discuss the issues on-the-record. What follows is the result of our 40-minute conversation, in which Risan goes into detail on “psychoacoustic simulation.”

BlueBeat, a 20-person company, Risan said, dates to 2002, but sold downloads for only about one week. At the start of our conversation, Risan, a mathematician who told The Times in 2003 that he has made and lost millions of dollars trading securities, said he had licenses with all the major music publishers.He added that his right to sell downloads was protected under the federal Copyright Act.

That’s where we pick it up.

You say you have licenses to sell music because of the federal copyright law, but you don’t have any agreements with any record label?

No. We don’t transmit their recordings. We’ve created independent recordings that don’t require it. Even so, we do pay royalties to SoundExchange for the EMI content that we transmit, as well as to the publishers of the EMI content, which we perform.

To the untrained ear, the recordings on your site sound pretty similar to the original recordings.

They do sound similar, to some extent. If you actually listen to our 320 [Kbps MP3] recordings versus the actual CDs, you’ll hear a remarkable difference. They’re created with the intention of recreating a live musical performance. When you listen to them, they’re done in a virtual soundstage of using psychoacoustic simulation, and the intention is to create a live performance -- as if you are there listening to the actual performers doing the work as opposed to a copy or a phonorecord or CD of the work. 

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So that was the intention, to create simulations ?

I started involving myself with psychoacoustic simulation all the way back in 2000 when I read the law, which gives an inclusion to the rights of the copyright owner if you create a new work independently. Under our [section 112 of the Copyright Act] license, we get the right to make a single copy. We buy a CD, and we have the right -- because we’re broadcasters -- to make a single ephemeral copy, which we make, analyze, and then destroy, and then create an independent work based on psychoacoustics.

Psychoacoustics. Define the term for me.

It’s how the brain perceives sound. You can then create new sounds that may very well be similar to the original sounds, but you can control how you create those sounds using parametrics like timbre, loudness, other pitch. Using computer-generated models and art, you can create pretty much any sound you want, any way you want it. This is a field that is rich in science and art and has been going on since the ‘70s.

But you had to know the major labels wouldn’t be OK with that.

That is correct.

To play devil's advocate, it sounds a bit like needling the copyright holders, trying to find a loophole of some sort.

It’s not a loophole. This is a fundamental issue of our Constitution, which created copyrights to not only protect the owner of a copyright but to further art and innovation. The copyright office’s main goal is to further the arts first and foremost. As long as we’ve been in existence, people have been able to take other people’s art, and with substantial variation, they can create new art that transcends the old. That’s the history of this country. The fact that it’s now done in the digital domain and virtual environment does not mean it’s art that should be neglected. I think that’s a very important thing for your readers to understand the ability not to stifle art, but to encourage it. That’s what the Copyright Office does, and that’s what Congress does.

It’s not a loophole. It was a pre-meditated determination by Congress. When they created the act in [1971] to give the owner exclusive rights, they limited those rights severely. So imitation, simulation and using psychoacoustics could be used by new artists.

We earlier quoted a copyright law expert who said the following: “The whole purpose of the copyright protection enacted in 1972 was to protect against record piracy. 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.”

That is absolutely right. That would be a re-recording. If I take a musical song, like the Beatles’ “Abbey Road,” and put it through some sort of mixer and speed up the sounds or slow down the sounds and add a symphonic element to it, that would be an infringement.

But that’s not what’s being done -- an entirely new work is being created. The original sounds are not used. If the actual sounds are being manipulated in any way, then it’s an infringement. Otherwise, if it’s an independent simulation, it’s not. The royalties in the new work are always going to be paid to the performers -- the owner of the composition, the lyrics, etc. It creates a new revenue source for the lyricists and the composers. Only the limitation was put on the owner of the actual sound recording.

But if that’s still Paul McCartney’s voice and Ringo’s drums, how is it a new recording?

It’s not his voice. It’s an independent simulation of his voice. It sounds like it, to most ears, but if it’s independently created -- just as if some guy sounded exactly like Ringo or Paul -- it would OK.

But you didn’t record people playing.

We do. We do it in a virtual 3-D environment. That’s the whole point of psychoacoustic synthetic sounds. You can reproduce voices and instruments synthetically. The court will make a determination in two weeks, as to whether or not that is an appropriate interpretation of the [114(b) of the Copyright Act].

OK, so let’s go through this again. You take the original recording…

Make a single copy. Analyze it. Destroy it. Create a new simulation based on parametrics of sound. You’ll be shocked at how the brain, in terms of its perceptual coding in the central nervous system, turns these sounds into electrical impulses, which then affect your mood, your cognizance, etc. Pyschoacoustic simulation exploits aspects of perception that are not present in the original work.

It’s an art. The first simulations we did were awful. It’s an art. It’s not a copying at all.

So it’s a digital version of the song that sounds as close as possible to the original version?

Not to the original version, but to a live rendition of that performance, before the music hits the microphones and hits the mixers and goes through the digitization process. All that can be discarded and a new work can be created based on simulations of new sounds emanating in a 3-D environment.

But if you go to the site, which is currently down, it didn’t advertise digital creations inspired by the Beatles. It listed the  artist's CDs. The consumers would think they’re buying those albums.

We actually do post that they are digital simulations. That’s about all I can say right now.

So it’s clear to the user that what they’re buying is a digital creation?

I believe so. It’s listed on the front page. These are digital simulations. We’re not claiming that they’re the owner’s works. We’re claiming that these are new simulations, independently created, no recordings or remasterings or edits.

But I’m looking at our screenshots. It says, ‘Let It Be … Naked’ Capitol Records, 2003. I would think I’m buying the Capitol Records album that was remastered and released in 2003.

I don’t know what to say about that.

The site seems just as much about selling music as trying to challenge …

The powers that be? The world isn’t flat. What happened to the guy who said it wasn’t? Wasn’t he ex-communicated? That’s the risk you run. The BlueBeat site is educational. It carries biographies. It has history. The music is [organized] by decade and by genre, and we don’t charge for it. We want people to learn and appreciate music as if they were in an university class. That’s what it’s about. To stifle innovation and art is very much against what this country is about. We’re going to embark on a dialog with the American people to help them understand how important it is to create new art. We’re going to stand up to EMI, and we’re going to let a judge make a determined decision on evidentiary facts.

If I go to your Facebook page, it says the ‘mission’ is to ‘stop the insanity of over-priced music.’ It does not say the mission is to educate consumers by further exploring psychoacoustic sound (Note: BlueBeat has changed its Facebook page since the interview was conducted).

So what’s your question?

Is the site there for an educational purpose, or to sell cheap music?

The Facebook fan club is one thing. The site speaks for itself. The site has a time-machine channel, and it takes music all the way back to the first Edison wax sound recordings. It [captures] the whole history of music, from classical to opera -- every kind of music -- with history and slide-shows. It’s an audio-video display and performance of what we envision educators and the public need to know in order for them to go educationally.

The site speaks for itself. The fact that we believe that $1.29 downloads are ridiculously overpriced doesn’t change that.… We believe that they’re charging too much. That’s a true statement, and it stands on its own.

You’ve said you’ve got licenses with the major publishers. Have you ever approached a label?

For what purpose?

To strike a proper working relationship.

Believe it or not, back in 2003 we entered in agreements with all the major labels to review our site before we launched it. Up until this date, we never had a single copyright infringement claim brought against us. We pay royalties. We create what we are believe are our works, not their works. They financially benefit.

How many downloads have you sold?

We were only open for a week before this happened, and it was a BETA test and we were testing software to make sure it was working. So not very much.

So you haven’t been selling since 2003?

BlueBeat has been broadcasting since 2003. We only started selling our time-and-space-shifted audio-video displays about a week ago.

So from 2003 to be about a week ago, there was nothing to purchase?

That is correct.

Doesn’t the artist have a say? If the artist says, ‘I don’t want these digital creations,’ does your model allow them a choice?

What artists are you talking about?

Any artist. Say AC/DC says they don’t want these up there.

Once this is determined by the judge whose work it is, in terms of simulation versus the underlying work, we’ll have a better picture and we’ll be able to say with certainty. But the 112 license says that once that work is released to the public, it’s fair game for broadcasting. If it’s fair game for broadcasting, then you should be able to transform that work vis-à-vis an independent simulation. It’s good for the royalty structure.

You would argue this is good for the artist?

Yes. Remember, artists always have the right to seek additional royalties through Congress. It doesn’t preempt a simulated performance right, for example, as opposed to a digital audio transmission right. This is something new and it needs to be addressed. Just because it’s new doesn’t mean that it can’t be monetized by artists.

--Todd Martens

--Additional reporting by Randy Lewis

EARLIER:

Beatles catalog pulled from download site BlueBeat

Beatles downloads for 25 cents? For now.

Photos: Sreenshot of the Beatles catalog on BlueBeat. Credit: BlueBeat.com. Top right: Hank Risan, show in 2003. Credit: Shmuel Thaler / For The Times. Middle photo: The Beatles. Credit: Apple Corps.

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