From The Associated Press
A federal judge has temporarily blocked two music-sharing Web sites from selling songs by The Beatles and other artists for 25 cents apiece.
U.S. District Judge John F. Walter on Thursday blocked the sites BlueBeat.com and Basebeat.com and owner Hank Risan from selling copyrighted songs by The Beatles and others. Music company EMI Group filed a federal lawsuit on Tuesday seeking an injunction against the sites, claiming they were engaging in music piracy.
EMI claims the Web sites have infringed on its copyrights to numerous artists’ songs, including The Beach Boys, Coldplay and Lily Allen. Its complaint states BlueBeat.com and Basebeat.com were offering the recently released digitally remasters of The Beatles catalog for 25 cents per song; the box set of 13 albums retails for $250.
The Beatles songs have never been legally offered for sale online through sites such as iTunes or other music sharing services.
The Web site’s attorney opposed EMI’s injunction request, saying the sites are selling an altered version of the songs.
In an e-mail earlier this month to the Recording Industry Association of America’s general counsel, Risan described the songs as a “psycho-acoustic simulation” rather than the original, copyrighted works.
Asked to explain the concept, Risan replied, “Psychoacoustic simulations are my synthetic creation of that series of sounds which best expresses the way I believe a particular melody should be heard as a live performance.”
Neither site was online Friday, so it wasn’t immediately clear what Risan meant.
The e-mail exchange is included as part of Risan’s filings opposing the restraining order.
The label declined to comment on the ruling. A phone message left for Risan’s attorney on Friday was not immediately returned.
Risan seems to be asserting a “fair use” defense to the works posted on his site, said Carole E. Handler, an intellectual property attorney and senior partner at the firm Wildman Harrold Allen & Dixon.
Handler noted fair use defenses have been claimed in several recent high-profile copyright fights, including the fight over publication of a book that was promoted as a sequel to J.D. Salinger‘s “The Catcher in the Rye.” A judge blocked the book’s publication in the United States because it too closely mirrors Salinger’s classic without adequate parody or critique.
A fair use defense has been employed by artist Shepard Fairey, who is being sued by The Associated Press over the use of a wire service image as the basis for his famous poster of President Barack Obama titled “HOPE.”
Courts generally evaluate whether a work is “transformative” before deciding whether fair use applies.
She said Walter must have felt that BlueBeat.com and Basebeat.com were infringing on EMI’s copyrights to order an injunction.
“Intellectual property damage can mount so quickly,” she said. “You can’t put the genie back in the bottle after the damage is done.
Walter has scheduled a court hearing for Nov. 20 on whether to keep the injunction in place.
EMI is seeking a permanent injunction and a fine against Risan of up to $150,000 per song that was downloaded.
