BlueBeat.com tried. They sold digital copies of Beatles music without proper licensing. They can’t do that.
U.S. District Judge Josephine Staton Tucker, who ruled that BlueBeat.com violated the copyrights and presented unfair competition to music company EMI Group and others, is quite correct. Although the judgment she issued does not specify damages for infringement and for unfair competition, the fact that BlueBeat.com created and distributed digital files of Beatles music, evidently based on the complete CD collection of their music makes them liable for what would seem, from an outside viewpoint, to be enhanced damages. This site sold some 67,000 copies for 25¢ per track. iTunes, which has properly licensed the Beatles’ music, sells each track for $1.29.
BlueBeat.com’s owner, Hank Risan, evidently tried to bamboozle the judge by calling his activities “psycho-acoustic simulation”; he claims that this activity results in unique copies of copyrighted music. However, the key word in that sentence is “copies”; Mr. Risan’s “psycho-acoustic simulation” is nothing more than a derivative work; the right to produce derivative works belongs exclusively to the copyright holder.
I don’t know whether BlueBeat might have fared better with a fair use defense. My guess is probably not. However, there are some uses of Beatles’ music that are educational, and the attorney might have stood a better chance of convincing the skeptical District Judge with the “fair use” defense. I dunno; maybe he did pull that rabbit out of the hat. I haven’t read the pleadings.
Anyway, it’s an interesting case, and the judgment gives the remaining live Beatles and the estates of the Beatles who have passed on some good news for the holidays. The judgment also reasserts my faith in the system, which has gotten somewhat battered of late.