Does Bluebeat Actually Have A Legal Basis For Its Claim Of Copyright Over Beatles' Songs?
from the unlikely,-but... dept
Folks on pretty much all sides of the copyright debate have been in pretty much universal agreement that Bluebeat’s claim that its “psycho-acoustic simulation” lets it recreate songs and claim an entirely new copyright on the files is ridiculous to the extreme. However, an anonymous commenter on the site (no idea if they’re connected to Bluebeat, but wouldn’t surprise me) claims that if you look closely at US copyright law, there actually is a basis for this. Specifically, the commenter points to 17 U.S.C. section 114 (b) which reads, in part:
The exclusive rights of the owner of 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 consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.
The argument is that an MP3 file is a duplication of another sound recording, but is done as an entirely independent fixation of other sounds. In case you’re playing along in the home game, clauses (1) and (2) of section 106 of copyright law pertains to reproducing copyrighted works or preparing derivative works. Now, whether or not an MP3 is actually an independent fixation that simulates the original or a direct copy is an open question which I’ll let you argue about in the comments. Of course, if we were actually paying attention to what the copyright law actually says, people might have noticed (as at least a few lawyers have) that section 101 limits the use of the term “copies” to material objects — and does not cover pure digital files. But, it’s not like we should let what the law actually says get in the way of how we interpret it.
Filed Under: copyright, reproductions, sound recordings
Companies: bluebeat, media rights technologies
Comments on “Does Bluebeat Actually Have A Legal Basis For Its Claim Of Copyright Over Beatles' Songs?”
So, have they been paying all the necessary songwriter/performer/etc. royalties for their “new recordings”?
Er...
So, are they claiming that a digital file is a “re-recording” on the basis that the bits which form the file are “other sounds”? That seems like a bit of a stretch. I would assume this provision of copyright law was intended to cover things like the instrumental versions of songs that karaoke CD companies record using synths and studio musicians – the purpose being to strengthen the line that is drawn between copyright of a song and copyright of a recording.
It seems like it would be set a very strange precedent for the courts to accept this interpretation. Following this logic you could argue that a scan of an image is a new artistic rendering, made of a new medium out of entirely new “image elements” that only imitate the original (pixels).
Of course I am all for relaxing copyright controls on these sorts of things, but strikes me as a messy way to go about that.
The Beatles Suck
Am I the only one in the world that can’t stand the Beatles? Why would anyone want to listen to them or anything that sounds like them? Surely there is better music to copy?
Re: The Beatles Suck
…yeah, because that’s totally the point of this story.
Re: The Beatles Suck
While it is completely off topic, i agree with you. I like hey jude and that’s about it.
Re: The Beatles Suck
Yeah, it was fun watching the Beatles weeks on American Idol.
After every song, my kids groaned at how bad they were. And they actually like some other genres or at least understand why someone would even if they don’t.
And after every song, Randy Jackson would say, “Ya know, dawg, that’s a great song, but your performance just really didn’t do anything for me.” Over and over again.
That’s because 99% of Beatles songs are NOT great songs. They are poor songs that became the worship hymns of the counter-culture movement.
And new generations just don’t see any reason to be enamored by these songs.
Re: Re: The Beatles Suck
This is ABSURD. Your kids probably listen to whatever Simple Plan/Britney Spears/Snoop Dogg equivalent passes for music these days.
Just because dumbass kids don’t like music that they have no real way of relating to (since kids are inherently too stupid to live, let alone think) doesn’t mean that the music isn’t any good.
Re: The Beatles Suck
I believe you are the only person in the world that can’t stand the Beatles.
Re: Re: The Beatles Suck
Well, he and the other two who replied before you.
And me. It’s not popular to say, but I just don’t like the Beatles. I don’t like their politics and most of the music is just kinda okay. There are a few great songs.
Re: Re: Re: The Beatles Suck
“Well, he and the other two who replied before you.
And me. It’s not popular to say, but I just don’t like the Beatles. I don’t like their politics and most of the music is just kinda okay. There are a few great songs.”
Yeah, you can pretty much throw out everything prior to Dylan introducing the band to marijuana as cookie cutter pop garbage.
If not for Dylan, the Beatles would have been forever remembered as the Backstreet Boys of the 60’s….
Copies
the relevant section:
“material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
It would seem that a file on a hard disk is still a ‘physical’ copy. That file is represented by bits of material either with or without a magnetic charge which translate into 1s and 0s which are read by the computer and turned into music.
That to me is still a ‘physical’ representation of the song.
Re: Copies
“It would seem that a file on a hard disk is still a ‘physical’ copy. “
Sounds to me like an: ‘electromagnetic’ representation of the song. I tend to define ‘physical’ as things which one can realistically manipulate by hand–perhaps with the implement of ‘dumb’ tools (dumb tools being mechanical in nature without any control mechanism).
Or… are you claiming you can manipulate electromagnetic fields by hand? (Mind you, I’m not referencing relative capacitive resistance, just pure electromagnetism.)
Re: Re: Copies
Magnetism is very much a part of the “physical” world. By your definition, cassette tapes wouldn’t qualify as physical copies either…
Re: Re: Re: Copies
Exactly! We should have ironed out this garbage back then!!
Re: Re: Re: Copies
And cassette tapes, the mix tapes that destroyed the industry in the early 80’s, were deemed perfectly legal.
Re: Re: Copies
No, I think that pixelpusher220’s definition fits, but the law was never intended to cover something like an MP3. Something that can be copied infinitely with an infinitely small price. I’d bet that copyright would be laughed out of the House if it was introduced today as artificially limiting the spread of infinite knowledge.
That being said, under the current law, Bluebeat douse not have a case. With all those cover bands having to pay licensing and even the guy who whistled behind the bar getting threatened, I think there’s enough case law to cover identical, yet different instrumented, recordings.
I always figured that part of copyright law only covered stuff already in the public domain. Like how you can’t copyright Beethoven’s Fifth, but you can copyright a recording of yourself playing it.
Re: Re: Re: Copies
Chronno:
Please learn to spell “does.” “Douse” means to make wet. Don’t make us work so hard to understand your perfectly valid points.
Re: Re: Copies
“are you claiming you can manipulate electromagnetic fields by hand”
I certainly can. Just give me a microscope, the proper lighting & filter, and a magnet with a fine point. The “dumb tools” guideline seems off, too, in that there are plenty of inarguably physical things that can’t be effectively manipulated by dumb tools. Many chemical compounds, near-nanotech machines, etc. To me, something is a “physical” thing when it consists of an arrangement of atoms, which magnetic recordings certainly do (although my definition is a bit arbitrary as well, since pure energy is also a physical thing.)
I think it’s very, very hard to argue that magnetic media is not a “physical copy” both from a physics and commonsensical point of view.
Re: Re: Re: Copies
Let’s try a simple scientific proof:
If something is not testable (i.e. it cannot be tested for falsehood) then it cannot be proven true.
What, EXACTLY, would be quantifiable as a ‘non-physical’ copy?
Radio? No, radio waves vibrate the ‘physical’ electromagnetic spectrum.
Internet? No, you’re physical vibrations are being carried on wires–there’s your physical copy.
Brain? If you memorize it, certain neurons alter in order to retain said information. Again, a physical copy.
If it is not testable for falsehood, then it cannot be proven true…
Re: Re: Re:2 Copies
I’m not sure what you’re getting at exactly, as all your examples are indeed valid “tests” of a sort.
I think that the problem is that “non-physical copy” is a bit of an oxymoron. If the thing is physical, then any copy would necessarily be physical as well, or it’s not a copy.
But let’s try this — music, being sound, is inherently physical. It is the vibration of the air in particular patterns. A recording of music on any medium (including the brain) is also a physical embodiment, but not of the music itself — you can’t physically copy air vibrations. It doesn’t matter, because it’s not the vibrations themselves that are of importance — it’s the intangible, non-physical patterns the vibrations have to humans that matters. The patterns themselves are only valuable when they are expressed physically (since our only experience of the world is physical), but they can be meaningfully fixed in any medium and converted to a more humanly accessible one easily.
So, while all recording media is a physical embodiment, the thing that is embodied is the bit that anyone, including legislators, actually cares about. Copyright law, in order to have any useful meaning at all, must apply to the bit that is important — which is not the precise physical embodiment.
I think it’s clear that the law intends to refer to a particular physical embodiment — the most “natural” one, I suppose. That is, nobody cares about the patterns of electromagnetic flux on a pieces of audiotape, really. They care about the air vibrations that can be created using those patterns as a template. The “physical embodiment” the law cares about, really, should be that.
Remember, I’m a copyright minimalist and I’m in no way arguing that this reasoning leads to everything being covered by copyright. I’m arguing that the copyright laws as they exist are hopelessly nonsensical and need to be completely rethought. If we are to have copyright at all (and I think a good case can be made that we should), then it needs to get out of the weeds of “physical” and “nonphysical” as those aren’t important distinctions — at the root, the things that copyright should cover are always nonphysical.
Re: Re: Copies
http://xkcd.com/378/
Re: Copies
Actually, the definition we want is probably:
“material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
It speaks not of “physical representations” but of “material objects in which sounds … are fixed”. Thus, a _hard disk_ is a copy if sounds can be perceived or communicated from it by some means. The collection of bits that is the file, floating around through the tubes, is not a material object.
Incidentally, the argument Mike references fails because it just grows copies. So the “copy” becomes, say, the collective RAM of 25 routers and switches. But it is still a copy. The problem is that courts have interpreted “fixed” _really_ loosely to include any fixation for any amount of time, even if transient. Of course, nowhere else in law or common sense does “fixed” include momentary, intentionally transient positions. If Shaq is running and Ming runs into him charging down the lane, it is not charging because Shaq’s location is not fixed.
Re: Re: Copies
Incidentally, the argument Mike references fails because it just grows copies. So the “copy” becomes, say, the collective RAM of 25 routers and switches. But it is still a copy. The problem is that courts have interpreted “fixed” _really_ loosely to include any fixation for any amount of time, even if transient. Of course, nowhere else in law or common sense does “fixed” include momentary, intentionally transient positions. If Shaq is running and Ming runs into him charging down the lane, it is not charging because Shaq’s location is not fixed.
Not true – Cartoon Network v. CSC Holdings the 2nd circuit said a 1.2 second duration in a buffer is of “transient duration” and not fixed.
The main problem here is that copyright is being applied with a 19th century solution to 21st century problems. “Copies” are not how we should be thinking about digital manifestations of works.
Data is duplicated every time it is accessed – that’s just how computers work. We should be thinking about copyright in terms of access or another concept that is not tied to physical distribution of a physical good. Until then we will have endless problems trying to apply copyright law to the digital world that will result in judicial fictions and band-aid approaches that get in the way and help no one.
Meh.
“But, it’s not like we should let what the law actually says get in the way of how we interpret it.”
It hasn’t gotten in the way so far, why should this be any different.
114(b) pertains to cover songs
Section 114(b) pertains to cover songs of preexisting sound recordings. It allows a musician to record/release a cover song of a preexisting song without running afoul of 106(2), the derivative work right. The argument that 114(b) permits someone to “re-record” an existing sound recording by running it through some sort of filter is unsupported by the common sense or legal precedent. Such an effort would not pass muster under 114(b) because it would not consist “entirely of an independent fixation of other sounds.” Regardless of the extent to which you altered the master, the new recording would contain portions of the original fixation, albeit altered portions.
Re: 114(b) pertains to cover songs
Yes, but the copyright does not extend to “portions of the original fixation,” only to the _original elements_ of such portions. If your filter is sufficiently sophisticated as to eliminate the originality from the recording, leaving only the actual sound that was recorded, the question is somewhat closer.
Re: Re: 114(b) pertains to cover songs
The copyright you are referring to is irrelevant. The fact that Bluebeat got a “copyright” from the Copyright Office does not bear on whether they have infringed on copyrights of the original musicians. It should be noted that unlike the PTO, the Copyright Office only issues “claims” to a copyright, not copyrights themselves. In any event, the fact Bluebeat has registered these works has no bearing on whether they are infringing of the original songs.
“If your filter is sufficiently sophisticated as to eliminate the originality from the recording, leaving only the actual sound that was recorded, the question is somewhat closer.”
This doesn’t even make sense. The sounds are the original, protected elements of the original recording. Those sounds are still present despite the fact they may be altered through the “psycho-acoustic simulation” process.
If Bluebeat’s attorney presents these arguments in court, his plaintiffs are likely to pursue Rule 11 sanctions and win.
Re: Re: Re: 114(b) pertains to cover songs
Those sounds are still present despite the fact they may be altered through the “psycho-acoustic simulation” process.
Once again, you seem to lack a technical understanding of how the MP3 process works. The original sounds are *not* still present, only a simulation thereof.
Re: Re: Re: 114(b) pertains to cover songs
Those sounds are still present despite the fact they may be altered through the “psycho-acoustic simulation” process.
It seems to me that changing a song using “psycho-acoustic simulation” and recording a song as a cover artist and making it sound exactly the same are no different. Just because the average listener can’t tell the difference between the original recording and the cover or psycho-acoustic copy if the recording is different then why would the psycho-acoustic copy and the cover be treated differently?
Re: Re: Re:2 114(b) pertains to cover songs
How many cover songs have you ever heard that you could not distinguish from the original?
Re: Re: Re:3 114(b) pertains to cover songs
How many cover songs have you ever heard that you could not distinguish from the original?
Well, if I couldn’t distinguish them then I likely wouldn’t know, would I?
Re: Re: Re:2 114(b) pertains to cover songs
Those sounds are still present despite the fact they may be altered through the “psycho-acoustic simulation” process.
An MP3 is like a piece of sheet music. It isn’t an actual sound recording itself, just a series of instructions on how to recreate a sound. And of course, it isn’t perfect: that’s why MP3s still do not produce a sound identical to the original. It’s a technical difference but that’s what the law is about.
Re: 114(b) pertains to cover songs
You don’t know much about how MP3s work if you think they are just the result of some sort of filter.
Unless more information has come out, we’re being a little quick to rush to judgment here. Substantial similarity is not illegal, it is merely evidence of infringement. If BlueBeat.com can demonstrate that it independently created these recordings, then at most it has infringed a copyright on the songs (by creating a new derivative work), not the recordings. (For my part, I am deeply skeptical that this has happened, here, but it is not impossible.)
I could imagine a system that would allow someone to do this that would create a very interesting copyright question. Say BlueBeat.com has a way of taking each recorded sound out of the original recording, adding back to it all of the stuff it lost in recording, and imaging it back into space – so they are left with the raw work, as performed but not as recorded. For instance, there is a speaker in the size and shape of John’s mouth placed about 5’3″ off the floor of a recording booth that is emitting _exactly_ the sounds John’s mouth emitted at the time of the original recording. Now the engineer mics the speaker as if it is a singer, and re-records the imaged vocal.
As far as the creative content goes, all of the originality has been sucked out of the original recording in order to create the new work, which clearly has the same amount of originality as the first recording. The interesting copyright question is whether this second work is derivative of the first recording, despite containing none of the original elements of the first recording.
Re: Re:
The problem is that it wouldn’t be much of a leap from what you’re describing to the claim that simply putting a song through a new equalizer or mastering filter and then re-recording the sound output qualifies as a new work.
Not sure the law supports it but using something like ‘psycho-acoustic simulation’ or say the BBE Sonic Maximizer can actually change the timing of sounds. In the BBE process the idea is that the timing of sounds being played from the speaker is slightly shifted so that one frequency does not heavily affect another frequency that is being played at about the same time. The timing changes are very small (on the order of milliseconds) and the idea is that humans preceive the sounds in the same way (perhaps preceive it as better than the unaltered sound). In any event the actual timing of sounds in the recording has changed, its no longer the same recording. I’m not involved and I would not know but I suspect that the ‘psycho-acoustic simulation’ actually changed some things and Bluebeat may actually have Beatles recordings that are ever so slightly different that what others are selling. It would be interesting to see if GraceNote or Shazam could identify the tracks in question.
Psycho-acoustics are used when an ordinary mp3 (or ogg or wma) is compressed. Yes, that is in fact the actual technical name.
As you may know, mp3 is a “lossy” compression format that discards information that the human ear cannot hear — this is what lets it reduce a 30MB song into a 3MB mp3. The sound is first converted from raw sound data into the frequency domain, and then a psycho-acoustic model is used to filter frequencies that aren’t significant. What’s left is then further compressed using other methods and written to a file.
When the file is decompressed, the data is converted back from frequency information to raw sound data that can be played on hardware. If you compare the original and reproduced sound signals, you’ll find that they look very different, yet they sound very similar.
So, psycho-acoustic simulation is a fancy way of saying they compressed it to mp3. 😛
my brain
my brain is going to explode!
Bridgeport Seems Relevant
If Bluebeat used even just three notes directly from the original Beatles’s music recording in their “transformation”, then, by following Bridgeport’s holding, they have committed copyright infringement. In Bridgeport, the 6th Cir. Court essentially removed any de minimus exception to sampling. The Court even left open the question of whether taking one note directly from another’s music recording was infringement.
From Bridgeport, 410 F.3d 792:
“The balance that was struck was to give sound recording copyright holders the exclusive right ‘to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.’ 17 U.S.C. § 114(b). This means that the world at large is free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made.FN8 That leads us directly to the issue in this case. If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole. Our answer to that question is in the negative.”
And Most damning from Bridgeport…
“By clarifying the rights of a sound recording copyright owner in regard to derivative works, Section 114(b) makes it clear that the digital sampling of a copyrighted sound recording must typically be licensed to avoid an infringement…. The import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist’s performance of it. Since the exclusive right encompasses rearranging, remixing, or otherwise altering the actual sounds, the statute by its own terms precludes the use of a substantial similarity test.”
Copyright in the Internet Age Blog
Re: Bridgeport Seems Relevant
Heh, except that pretty much everyone recognizes that the Bridgeport ruling is a total joke and would never hold up if it got to the Supreme Court. The ruling completely ignores fair use.
Re: Re: Bridgeport Seems Relevant
I agree that the Bridgeport decision is absolutely one of the worst copyright decisions in the last 20 years. However, the fact that fair use was not considered has nothing to do with it. Fair use was never raised as a defense, so the court never assessed it. The court did not “ignore” fair use, in fact, as I recall, they specifically mention that nothing in the decision forecloses a potential fair use defense.
In any event, Bridgeport is not really relevant to this case, because this is an instance of literal copying. There is not question of “substantial similarity” because these works are identical, no matter what the Bluebeat reps are saying about their process.
Re: Re: Bridgeport Seems Relevant
And yet there is no negative history on the Bridgeport Court’s holding… If pretty much everyone recognized the Bridgeport ruling as a total joke, SURELY some court somewhere in America would say so… yet they haven’t; only law review articles have criticized it…
Like it or not,it is still persuasive authority in the 9th Cir.
Re: Re: Re: Bridgeport Seems Relevant
Bridgeport was in the 6th Circuit.
You don’t seem to have much of a grasp on how long appellate litigation takes. That Bridgeport has not been challenged in an appellate court yet is really not surprising at all. It will surely be challenged in the future.
Re: Re: Re:2 Bridgeport Seems Relevant
Bridgeport has NO negative history in ANY district court or appellate court. I know Bridgeport was in the 6th Cir., which is why I said it is persuasive authority and not mandatory authority in the 9th Cir. You seem to be the one having trouble grasping things…
Re: Re: Re:3 Bridgeport Seems Relevant
In Fact…
Bridgeport has been cited in 45 cases (including 6 times in Appellate Court Cases), none of which negatively refer to the holding.
But who needs FACTS when you can make blanket unsubstantiated statements and throw ad hominem attacks…
Re: Bridgeport Seems Relevant
Further, in Bridgeport the Rapper changed the pitch of the original sound!
“Specifically, a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was “looped” and extended to 16 beats.”
Bridgeport seems to be relevant to the analysis of the BlueBeat even if it isn’t the normal “sample” case.
Ok, looking back at the snippet in the original post…
Following up on my previous (rather technical) post, the process of converting sound into frequencies means splitting it up into a bunch of cosine waves (each at a different frequency). When you overlay those waves again, you get something similar to the original sound.
So to me, that says very clearly that all mp3s on the internet are legal… Of course, whoever wrote that probably had no idea his words could be interpreted this way.
Though, John Fenderson is right. It’s the music that is copyrighted, not its representation (though what about sheet music?).
Poetic Justice
As I understand it, back in the early 1970’s the exemption in 17 U.S.C. section 114 (b) was added at the request of the record companies themselves. Their intention was to use cover bands to very closely imitate popular recordings by major performers and avoid paying royalties to the original performers. Electronic processing (some even say mixing) was then used, especially on vocals, to make the new recordings sound as much like the originals as possible. This happened a lot back in the 1970’s when they sold things like “The Greatest Hits of (Some Major Performer)” direct on TV. A lot of buyers didn’t realize (until too late) that the songs maybe weren’t actually *performed* by the original performers but rather by imitators. Some didn’t care considering the lower price of the imitations. In either case, the original performers got nothing and the law made it perfectly legal.
Jump forward to today and somebody is trying to use the same law that the record companies had originally intended to use to cheat performers as a defense against the record companies themselves. Isn’t that poetic justice? Of course, courts aren’t really about justice.
Re: Poetic Justice
I bet the record industry’s lobbyists are all over their chosen government representatives now: “You know that law we wanted to let us make imitation recordings? We’ve changed our mind, get rid of it.”
Backstreet Boys of the 60’s? That is the most idoitic comment I think I have ever read. Step away from the crack pipe! Smacked up beside the head with a stupid stick???Way to show us your great taste in music.
But hey...
…section 101 limits the use of the term “copies” to material objects…
Have not the kontent kings and their minions been trying to brainwash everybody into treating digital content as material objects for years? File sharing is just like stealing a disk from your local store, right? Twisty logic and not a good road to follow, but hey…
So...is BlueBeat down?
Ever since the judge told BlueBeat to take down the Beatles music, it looks like the entire site is down. Or is that just me? I keep getting “timed out” errors. Was the entire site taken down by the domain host?
This is a weird case. It seems to me that even if BlueBeat wins (not likely) they still lose. They may not be liable for infringement, but then neither is anyone else–which means they (and their offerings) won’t be necessary.
Re: Re:
They may not be liable for infringement, but then neither is anyone else–which means they (and their offerings) won’t be necessary.
People spend money on unnecessary things all the time. Furthermore, you seem to making the mistake of thinking that the only way to make money is by having some kind of a monopoly (like a copyright). Nothing could be further from the truth.
Re: Re: Re:
Well no, what I mean is they’re unnecessary because they seem to be selling content. It’s cheaper than what other sites are selling for, but ultimately if they prevail in the case then buying content from them would be as stupid as buying it from anyone else. Which is exactly what I’d like to see, but I’m not optimistic.
Re: Re: Re: Re:
Well no, what I mean is they’re unnecessary because they seem to be selling content. It’s cheaper than what other sites are selling for, but ultimately if they prevail in the case then buying content from them would be as stupid as buying it from anyone else.
Who says they don’t have other plans? You should search this site for CwF + RtB for an explanation (hint: look at the top of the home page).
Personally, I think they have some good songs and some great songs, but I dislike probably 80% or more of their stuff. In general, if I like only a few of an artist’s songs, I buy those individual tracks electronically but don’t buy any of their albums. For the Beatles, this just means I’ve bought absolutely nothing of theirs.
Well no, what I mean is they’re unnecessary because they seem to be selling content.
Hmm, from their front page: “BlueBeat transmits simulated live musical performances for free at 160 and 320 kb/s.”
Sounds like “free” music is part of their business model.
Sound Recording May Depend on Medium
I’m not sure on the medium here — in terms of how the new “recording” actually operates to push electrons around so that sound comes out somewhere — but I have seen the Copyright Office take the position that a compilation of MIDI files was not a sound recording, it had to be registered as computer software. So sometimes there could be a first sound recording but not a second sound recording, for exemption purposes?