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.
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.
