Herb: I think you overestimate the value of the digital Beatles catalog by…oh…a lot.A billion dollars?Oh, I know, I know.They’re proven cash cows in the music biz, but is that due to their enduring popularity…or the various media format changes over the years?The Beatles fans of yesterday bought the LPs, the 8-tracks, the cassettes, the CDs.The Beatles fans of tomorrow?They’ll just buy the catalog once.(That is, if it’s not crippled by DRM.)Or, with “music on demand” type services, they won’t buy it at all.I look at the Beatles catalog, a comforting stand-by unchanged since the 70s, not as a cash cow, but as a diminishing asset.It was great…while it lasted.

I dunno – the Beatles Rock Band game sold over a million copies its first month. I’m not sure how much of the $100 million or so in sales that translates into royalties for the copyright owners. And just because consumers may own the entire recorded Beatles catalog doesn’t mean that they aren’t open to paying for albums like the remixed Love album, or that they won’t watch films/television/plays that license the music. A billion dollars is a bit of a stretch, but maybe not by that much.

Bruce Hayden:
But of course, it would be infringement if the original were still under copyright. Running something through a filter is either reproduction and/or creation of a derivative work. Copying in one guise or another.

Yeah that’s what I mean. I was sorta making fun of the “we aren’t infringing because we destroy the original” line of reasoning. It’s absurd because it can be extended to almost any kind of infringement.

Herb: I look at the Beatles catalog, a comforting stand-by unchanged since the 70s, not as a cash cow, but as a diminishing asset. It was great…while it lasted.

Perhaps, but waiting until some indefinite point in the future to put it online isn’t making it any more valuable.

David Nieporent:
Personal liability.

Shouldn’t they be shielded from that by incorporation?

I look at the Beatles catalog, a comforting stand-by unchanged since the 70s, not as a cash cow, but as a diminishing asset. It was great…while it lasted.

I certainly think it’s a reasonable question whether they could afford to pay it at the $.25/song price point, and obviously their rationale on the sound recording is bunk. You say, though, “There’s no argument on the planet that is going to help Bluebeat avoid infringement liability on [underlying song].” I think the argument “we were just going to pay the compulsory license fee” (which is generally remitted quarterly as I recall) is a pretty compelling one.

The real question is, where is the market? The Invisible Hand ought to be resolving this issue

The Invisible Hand has been giving us The Finger, I think.

Shane: ˙ʇuǝɯǝƃuıɹɟuı ʇou sı sıɥ⊥

But of course, it would be infringement if the original were still under copyright. Running something through a filter is either reproduction and/or creation of a derivative work. Copying in one guise or another.

With this line of reasoning, I could probably justify any kind of copying of almost any work. It’s amazing how similar a PNG file can look to a JPG file although the UNDERLYING DIGITAL BITS ARE COMPLETELY DIFFERENT! It’d even work with text – run the original through some kind of upside down converter like this one, destroy the original (apparently this is key), and then print the new file out. And then flip your page upside down.

Example:
˙ʇuǝɯǝƃuıɹɟuı ʇou sı sıɥ⊥

DOuglas2: Old low-fidelity recordings of piano works can be electronically analyzed to create a set of instructions (or an “electronic piano-roll”) for a modern player-piano. With appropriate artistry in the tweaks, the resulting “re-recording” can sound nearly exactly like the originally recorded performance, except without the distortions and noise of the old cylinder recordings. Is it a new recording? It is certainly made by a computer playing a piano rather than by the long-dead artist.

For some long dead pianists and composers, an even simpler “re-recording” method is already long in use, with remarkable results.

Thousands of performances for which composition and performance copyrights have expired were recorded on player piano rolls. Some piano roll recording methods (notably those of Welte and Ampico, but others as well) captured not only the notes and durations, but also the note velocities, expression pedal actions, and more. When played back properly, these rolls yield music that is as faithful to the original performance as any modern recording or recreation of a performance. Piano rolls were, quite literally, the first digital recordings of musical performances.

Some years ago, Mr. Terry Smythe, led an effort in collaboration with the International Association of Mechanical Music Preservationists and others, to collect, scan and transform ancient piano rolls into MIDI representation, for reproduction on modern computers. Some tens of thousands of results from this effort can be found here.

From that collection, one can enjoy piano performances in exquisitely subtle clarity and detail, by the some of the greatest pianists and composers of the early 20th century.

Bruce Hayden: Bruce Hayden says:

The theory seems to be that they can exempt themselves by copying the music to a score, and then performing from the score. Or at least performing from the score. BUT, they are consciously trying to mimic the sound of the original.

For my educational purposes they are trying to mimic the sound of the original in the same way that the art students in the museum are trying to mimic the appearance of the old master. Commercial release is not envisioned. Sure does build skill and understanding, ‘tho.

Copyright exists in the musical composition, for which anyone can get a compulsory license to release a recording.
Copyright also exists in the printed score of musical parts, if such exists.
Copyright also exists in the lyrics.
Copyright exists for the phonographic recording. It is the copyright in the phonographic recording that is at issue in this case.
17 U.S.C. § 114(b) states that

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.

Now, IANAL, but it looks to me like this is saying my students and I are in the clear for our attempts to imitate the copyrighted recording, even if I admit to access of the original.

DOuglas2: I have music-recording students attempt “sound alike” recordings. To do so, they must either find a score (with its own issues of performance and recording rights) or create one themselves by analysis of the original recording.

The theory seems to be that they can exempt themselves by copying the music to a score, and then preforming from the score. Or at least preforming from the score. BUT, they are consciously trying to mimic the sound of the original.

Which, sounds like an attempt to hide the fact that what they are doing is copying the original performance. And, worse, by having someone listen to the original, they have made the job of proving copying that much easier by admitting to access.

No, this isn’t going to get around copyright. It is reproduction, and if not that, at least the creation of a derivative work.

Better luck next time.

fooburger: Just FYI, ‘psychoacoustics’ means “MP3 encoded”.

Psychoacoustic encoding can mean “MP3 encoded”, but in my boring long winded comment above I tried to explain that it can mean more than that. After all, why send digital audio to the “virtual reality” console if it takes less data-rate or data-storage to just send instructions to the synthesizer in the console to re-create a close-enough representation of the sounds that you need.

http://www.chiariglione.org/mpeg/faq/mp4-aud/mp4-aud.htm#41

Under copyright law they have no right to “duplicate the sound recording in the form of copies that directly or indirectly recapture the actual sounds fixed in the recording…” My suspicion is that they are trying to leverage the phrase “actual sounds”, and say that while it may “sound like a duck” it is not really a recording of a duck or a copy of a recording of a duck, but instead a recording of a duck-call.

M. Gross: So, let’s assume that BlueBeat.com was going into bankruptcy before this whole fiasco. What exactly are the drawbacks of their actions?

Personal liability.

But there’s still the musical work copyright to consider, and there’s no argument on the planet that is going to help Bluebeat avoid infringement liability on that score.

What happened to the compulsory mechanical license?

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