November 2009
EMI Stops Site Selling "Legal" Downloads of The Beatles...
EMI has won an injunction against Bluebeat.com after filing a copyright infringement action against the site in the U.S. courts last week.
The site had been streaming and selling songs by The Beatles and other EMI artists online without the record label’s permission, however claimed it was doing so legally.
EMI was particularly annoyed in relation to the availability of The Beatles back catalogue (including recent re-masters) for 25 cents (15p) per song, which is not yet available for digital download anywhere legally and due to be released next month in 30,000 exclusive apple shaped USB devices for £200 each.
Bluebeat’s owner Hank Risan has claimed that he does not need the permission of EMI as the songs sold on the site are re-recorded versions of the originals made using “psycho-acoustic simulation”.
He argues that the technology allows him to create music that is identical to the original recordings but consists of entirely new and original sounds and so is exempt from copyright infringement.
More specifically he believes that the music created meets the criteria of the exemption set out in S114 (b) of the U.S. Copyright Act which states that:
“rights of a copyright owner do not extend to the making of a sound recording that consists of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording”.
Though the judge rejected such argument stating that the evidence submitted was not sufficient enough to prevent the injunction being ordered, Bluebeat.com will have the opportunity to argue its case fully in court on 20th November.
BRIFFA Comment
Bluebeat.com have attempted to use modern technology to expose what they consider a loophole in the current copyright law.
However, it is highly unlikely that they will get very far with their current arguments. They are in reality offering songs for download without having permission from the copyright owners of such songs and so committing blatant copyright infringement.
Despite their method of recording seemingly benefiting from the exemption they have sought to rely on, the Courts would not allow a party to rely on an exemption in circumstances it was clearly not meant to cover and permit such blatant infringement to continue.
In any case it is clear from the wording of the exemption that it is meant to cover “imitations or simulations” of prior sound recordings and not replications.
For more information on copyright law please do not hesitate to get into contact with one of our specialist copyright lawyers via info@briffa.com.