Saturday, December 12, 2009

The Battle Over The Beatles: Judge Hits BlueBeat With Preliminary Injunction

I am back from my break for law school exams with plenty of news to catch up on.

First up involves the Capital v. BlueBeat trial that concerned uploading the Beatles songs for 25 cent downloads. The Judge has granted a preliminary injunction, going a step further than the previously issued temporary injunction. This time the Judge went into greater detail about why he finds BlueBeat's "psycho-acoustic simulation" defense:
However, Mr. Risan is very clear on one critical fact: In order to create the recordings on the BlueBeat Website, he admits that he had to create and use a digital copy of Plaintiffs’ Recordings.4 Given this admission, the Court concludes that it is virtually impossible that the recordings on the BlueBeat Website consist “entirely of an independent fixation of other sounds” pursuant to 17 U.S.C. § 114(b). Indeed, although Mr. Risan claims that “artistic operators” made changes to parameters such as pitch, loudness, rhythm, timbre, and space, Defendants’ conduct appears to be substantively no different than the defendants in United States v. Taxe, 540 F.2d 961 (9th Cir. 1976). There, the defendants used “specially adapted electronic tape equipment” to re-record sound recordings, and change them by increasing or decreasing the recording speed, introducing reverberation or echo, eliminating or reducing portions of the musical sounds, and producing additional sounds by synthesizers. Taxe, 540 F.2d at 964. The district court rejected any claim that this re-recording constituted an “independent fixation,” and the Ninth Circuit agreed, stating: “The copyright owner’s right to reproduce the sound recording is limited to recapture of the original sounds, but that right can be infringed by an unauthorized re-recording which, despite any changes in the sounds duplicated, results in a work of ‘substantial similarity.’” Id. at n. 2.

For more information on the recent ruling against BlueBeat, check out analysis by Copyrights and Campaigns Blog and Ars Technica.

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