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

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Posted By Annsley Merelle Ward to The IPKat - IP pleasure, without the
pain! on 11/06/2009 05:51:00 AM