“Because I told you before, ooohhhhh you can’t do that”

Fans of The Beatles will recognize the title of this piece as a line from The Beatles’ song “You Can’t Do That” -- and that is exactly what EMI’s labels, including Capitol Records, told BlueBeat.com when it filed a federal lawsuit against them in the US on Tuesday.

EMI filed the copyright infringement and unfair competition suit against BlueBeat.com, their sister site BaseBeat.com, their Santa Cruz-based parent company Media Rights Technologies and the CEO Hank Risan for making available the entire Beatles catalogue listed at $0.25 (15p) per track, which is below what a potential industry standard for these songs would be (generally around $0.99 – $1.49). IPKat readers are reminded that The Beatles catalogue has never been available legally online and in the past month has been subject to a heavily promoted remastered reissue by EMI.

Other artists’ music such as Blondie, Blur, Coldplay, Radiohead and Norah Jones are also subject to the complaint.

The complaint stated that not only had EMI not authorized the defendants’ use of the recordings but that they had
“recently sought to register their infringing sound recordings with the Copyright Office, apparently claiming that because they copied the sound recordings using their own computer system, they now own these digital copies and have the right to distribute them to the public.”
Indeed the defendants have contended in their filing of opposition to the claimants’ application for a preliminary injunction that their re-recordings of the sound recordings are “entirely new and original sounds” and the claimants’ “copyright protection does not extend to the independent fixation of sounds other than those contained in their copyrighted records.” Specifically, the defendants are arguing that their sound recordings fall within the exception in Section 114(b) of the Copyright Act which states:
“The exclusive rights of the owner of a 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 consist entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording…”
These “entirely different" sound recordings were created by something called “psycho-acoustic simulation” (yes, you read that correctly…) and was notified by CEO Hank Risan to Steve Marks, general counsel for the Recording Industry Association of America, in a series of emails. For a full explanation of “psycho-acoustic simulation” and to see the emails that were exhibited to the defendants’ opposition, please click here.

The IPKat is of the opinion that this argument is going to go nowhere pretty quickly; the statute says “imitate or simulate” not “replicate”.

The claimants are seeking an injunction and general damages to be determined or statutory damages for each infringed copyright (a maximum of £150,000 per infringement). The claimants are additionally seeking exemplary or punitive damages.

The track “You Can’t Do That” was, at the time of this article, still available for purchase on BlueBeat.com so the IPKat assumes that BlueBeat in fact “can”, at least for now.

For further information see these articles in the Guardian, Wired, and Wall Street Journal.
Lyrics of "You Can't Do That" here; ringtone here

UPDATE: Late yesterday U.S. District Judge John F. Walter granted the claimant's preliminary injunction with the effect that the defendants were to immediately stop selling The Beatles' and other artists' music. The IPKat just checked the site and the music has indeed been removed.
“Because I told you before, ooohhhhh you can’t do that” “Because I told you before, ooohhhhh you can’t do that” Reviewed by Annsley Merelle Ward on Friday, November 06, 2009 Rating: 5

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