Are The Record Labels Using Bluebeat's Bogus Copyright Defense To Avoid Having To Give Copyrights Back To Artists?

from the oh,-those-record-labels dept

Thu, Nov 19th 2009 5:33am — Mike Masnick

As you hopefully know, back in 1999, the RIAA had a Congressional staffer named Mitch Glazier slip four words into a totally unrelated bill on satellite retransmission of broadcast TV, literally in the middle of the night, that effectively changed the way copyrights worked on songs by major label artists. It effectively took much of the control out of the hands of the artists and handed it right to the labels. Remember that the next time the record labels claim they're representing the best interests of artists. The use of four simple words, buried deep within the bill, which no one other than the RIAA knew about (seriously, those who voted on it later said they had no idea), turned songs recorded by artists signed to record deals to works made for hire. That meant that those artists could not reclaim the copyrights to their songs later on via a "termination" right, as any other content creator could. Glazier, the staffer who slipped this into the bill, ended up going to work for the RIAA just three months after putting this text into the bill. He was apparently hired with a $500,000 salary. Not a bad payoff for changing a key component of copyright law in the middle of the night when no one's looking.

Luckily, soon after this passed a few people did notice, leading to a big uproar from artists, and an eventual backtracking from Congress, who never did believe the RIAA's line that this "change" just "clarified existing law" rather than changed it entirely.

But, it's important to remember all of this when discussing termination rights for music. Back in October, we had discussed how the songs of many top musicians were quickly approaching those termination rights, and some of the major record labels stood to lose the copyrights on some of their biggest hit albums. Wired recently ran a similar article about this "ticking time bomb," and I wasn't going to post it, because I wasn't sure it added much new, until reader Mesanna pointed out one little factoid down at the bottom:

The second option is to re-record sound recordings in order to create new sound recording copyrights, which would reset the countdown clock at 35 years for copyright grant termination. Eveline characterized the labels' conversations with creators going something like, "Okay, you have the old mono masters if you want -- but these digital remasters are ours."

Labels already file new copyrights for remasters. For example, Sony Music filed a new copyright for the remastered version of Ben Folds Five's Whatever and Ever Amen album, and when Omega Record Group remastered a 1991 Christmas recording, the basis of its new copyright claim was "New Matter: sound recording remixed and remastered to fully utilize the sonic potential of the compact disc medium."

Now, of course that sounds ridiculous, to hear that record labels can get a new copyright on just remastering a work... but, that sounds an awful lot like the argument made by Bluebeat.com, concerning its "psycho-acoustic simulation" re-recordings of famous songs, that enabled it to claim a new copyright. Now, the record labels are crying foul about this, and the vast majority of copyright law experts say that Bluebeat's claim has no chance at all. But, if that's the case, then the record labels own attempts to get new copyrights on remastered albums to avoid the termination rights might also be in jeopardy. It seems like any argument that is made against Bluebeat can soon be used against the labels as well if they really do try to claim copyright on remastered albums.

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Filed Under: copyright, music, remasters, termination rights, work for hire

43 Comments

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Anonymous Poster, 19 Nov 2009 @ 5:39am

In the words of the immortal Bender B. Rodriguez...
Now that...is...IRONY!
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Ima Fish (profile), 19 Nov 2009 @ 5:54am

And that's why I seriously think that the people behind Bluebeat are the copyright equivalent to the Yes Men. Remember, these were the same guys who ridiculously sued a bunch of companies for not suing their DRM, because not using their DRM violated the DMCA.

There is simply no way these guys are serious.
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Killer_Tofu (profile), 19 Nov 2009 @ 6:08am

Made their bed, now they can lay in it
What goes around comes around. I love it when they get hit with their own arguments. It just points out ever more clearly how they care about nobody but themselves. Represent the artists. Ha! That will be the day. Only new smaller labels actually represent the artist's best interests. Anything owned anywhere up the line by the majors obviously does not.
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Call me Al, 19 Nov 2009 @ 6:12am

Re: Made their bed, now they can lay in it
Sadly just because they've been caught in their hypocrisy doesn't mean they'll pay any attention. It also doesn't mean that they won't win out in both situations. The cynic in me says that as large interest groups they'll find away to confuse the issue and judges enough to get their way regardless.
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Ima Fish (profile), 19 Nov 2009 @ 6:21am

Re: Re: Made their bed, now they can lay in it
You're probably right. First the vast majority of judges do not understand copyright law because it's not required in law school. So they're as ignorant as everyone else and believe that copyright protects a property right and that such rights should be protected at all costs.

In the case of Bluebeat, a judge determined that the company was obviously "stealing" from the legitimate owners. And in the future case where a label makes the identical argument that Bluebeat made, the judge will believe that the "legitimate business interests" of the labels will need to be protected.
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Mechwarrior, 19 Nov 2009 @ 6:29am

Judges arent as uninformed as many people think. Some judges, yes like the East Texas circuit. But judges do look at precedence. When they see the Bluebeat case, and the Major Label$ case, they'll immediately see the similarity.

Unless they judges had been paid off, which unfortunately is not uncommon...
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tacitus, 19 Nov 2009 @ 6:33am

Logic?
...so by this logic I can 'remaster' *any* recording and claim copyright!?

Let's get statrted.
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Dark Helmet (profile), 19 Nov 2009 @ 6:34am

Re: Re: Re: Made their bed, now they can lay in it
"And in the future case where a label makes the identical argument that Bluebeat made, the judge will believe that the "legitimate business interests" of the labels will need to be protected."

And this is where I start to get really close to a total meltdown. I'm used to those in power and those with money getting preferential treatment. I expect there to be shenanigans behind closed doors, because after all, our government and businesses are run by human beings, so some degree of corruption is to be expected.

But here's the thing: don't just pull down your pants and piss in my face. When these rejects are so protected that they can get away with publically gaming the system, in the face of everyone, and just say things that no one in their right mind would believe....and GET AWAY WITH IT? Well, hell, I've never been one for total anarchy, but I'm getting close to just saying let's do a total reboot on our government. Wipe the slate clean and take it back to 1776 in terms of starting it all over again. In fact, learning some of the lessons we have over the past 200 years, perhaps this time we can do it better.

FYI, this follows my reading in my local paper about a hidden 1.5 million dollar fund in Chicago being used almost solely for aldermen to hire friends and family. This 2 days after our Mayor announced he is seeking to end federal oversight of the city's hiring practices, because according to him there is no longer any patronage or nepotism.

Oh, and one aldermen's response when questioned by the paper? "Every aldermen hires their family. There's nothign new about that." And that's a direct quote.
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Call me Al, 19 Nov 2009 @ 6:35am

Re:
Afraid reading Techdirt has someone destroyed my faith the ability of judges to see beyond the end of their own nose on matter revolving around copyright and patents.

The probably will see a similarity but be swayed by the music industry lawyer saying "Yes it is similar but really its completely different. Did I mention we contribute billions to the economy?"
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Michael, 19 Nov 2009 @ 6:45am

I can see some logic
Not that I agree with it in any way, but I can see how they may get around it.

Bluebeat.com is taking a work that someone else has a copyright on and then "remastering" (or whatever the heck they decided to call it) the work. This could be derivative, but it is a bit different that the record labels remastering a work they have the copyright to and then retaining copyright on the new work while the old one can be reclaimed by the original artist.

I think it is cheap, underhanded, and should be stopped, but I see a bit of a distinction. With their ability to muddy up the waters, I can see the record labels getting by on this.

In the end, I feel bad for the artists. They are signing over their talent to these record labels and the labels do everything they can to cheat them out of any dime they are actually due. I hope most new artists see the problem is the record labels and start working out their own business models instead. It would be nice to see the labels lose their hold over all of this rich culture.
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Anonymous Coward, 19 Nov 2009 @ 6:49am

Surprise Surprise, The RIAA are crooks.

Thats why I have a huge BOYCOTT the RIAA bumber sticker on my car.
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Call me Al, 19 Nov 2009 @ 6:57am

Re: I can see some logic
Though it begs the question, if the artist claimed back their old copyright and then remastered the music under their own auspices what would happen?
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Anonymous Coward, 19 Nov 2009 @ 7:07am

If I understand this correctly the labels are claiming that at the end of a records current contract on a song that the copyright on the analog recording passes back to the author / performer.

The labels are also claiming that they own the copyright on any digital remaster they make.

Now what is preventing the original author from modifying the original analog recording by remastering it and then owning the copyright on the original work and their official version of the secondary work?
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Josh in CharlotteNC (profile), 19 Nov 2009 @ 7:07am

Re: Re: Re: Re: Made their bed, now they can lay in it
"And this is where I start to get really close to a total meltdown."

DH, I agree.

When the financial apocalypse was happening a year ago, I had a similar feeling. Intellectually I knew that the bailout was needed (and better than most, I do tech support on the backend servers and networks that much of the financial data goes across). But a significant portion of me wanted go Tyler Durden: watch everything burn and the world go into chaotic spasms like a wolf eating its own entrails.

I have reached that point with copyright, patents and other intellectual property. The system is rigged and I think it is beyond repair. The only thing to do is wipe it out and start from scratch.
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Skout (profile), 19 Nov 2009 @ 7:10am

Nothing new here at all. These crooks will do anything that benefits themselves. What Dark Helmet above said is absolutely the truth - they will abuse the courts and simply throw enough money at issues and claim all the while that they're poor because people 'steal' their work. Meanwhile, they're stabbing their artists in the back on a regular basis, stealing everything they can get their hands on, and laying claim to everything they can't.

Copyright and ownership is going to be the basis of our next revolution. Eventually people aren't going to put up with it any more.
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Ima Fish (profile), 19 Nov 2009 @ 7:10am

Re: I can see some logic
"it is a bit different that the record labels remastering a work they have the copyright to and then retaining copyright on the new work while the old one can be reclaimed by the original artist."

Certainly these situations are not completely analogous. However, in both situations Bluebeat and the labels are claiming a new copyright magically appearing out of either "psycho-acoustic simulations" or "remasterings."

The question is whether either "psycho-acoustic simulation" or "remastering" creates a new copyright?

Let's assume that Congress finally stops extending copyrights and the music of the Beatles is about to enter the public domain. Does merely increasing the bass and adjusting the mid-range give the Beatles an entirely new copyright that would last an additional X number of years?

To me whether you call it "psycho-acoustic simulation" or "remastering" you're not talking about a new copyrighted work.

However, if the labels are correct, then every time I adjust the bass while listening to the Beatles I'm creating new copyrights.
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cc, 19 Nov 2009 @ 7:15am

There's news from the Bluebeat case: http://latimesblogs.latimes.com/music_blog/2009/11/music-download-site-bluebeat-hit-with-a- preliminary-injunction-sites-founder-responds.html Notice:
“Mr. Risan fails to provide any details or evidence about the ‘technological process’ that defendants contend was used to create the ‘new’ recordings or adequately explain how the ‘new’ recordings differ in any meaningful way from plaintiffs' recordings,” Walter wrote in approving the preliminary injunction.
My emphasis on "meaningful". Can it be argued that remastering the tracks makes a "meaningful" difference?
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zellamayzao, 19 Nov 2009 @ 7:21am

Re: Re: Re: Re: Made their bed, now they can lay in it
Here Here Dark Helmet!!!

Ill be the first to sign on the dotted line and take up arms and bring it back to the beginning. Im fed up with the way these corporations run our government.

If you dont learn from history you are bound to repeat it. This is getting to the point that made our for-fathers stand up to the British rule. Though I guess its gonna be likened more to the civil war seeing as how its gonna be the broke, fed up, have not Americans against the have it all and dont care Americans.
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cc, 19 Nov 2009 @ 7:22am

Mind you, the link I posted above also has an interview with Bluebeat. They make the most bizarre claims..

And also confirm that their "psychoacoustic simulation" stuff was just compressing to something like mp3, just like I said the last time they came up.
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C.T., 19 Nov 2009 @ 7:38am

There's no way....
There is no way the record labels will pursue this strategy, because doing so would completely undermine their own interests. It would in effect render their copyrights completely useless, as anyone could simply re-record one of their albums (i.e. run it through a filter) and begin distributing the album without recompense for the record labels.
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radioactivesmurf, 19 Nov 2009 @ 7:43am

Are they smarter then they seem?
Is it possible Bluebeat planned this all along? I mean sure the RIAA would try to weasel out of this but given enough publicity it would make it more difficult at least. Perhaps if they get the artists attention then they can make headlines like " XY Celebrity is suing their record label over copyrights they don't own" and could then explain the precidence. The judge couldn't very well go against it if everyone was watching? Maybe I am giving bluebeat too much credit but they sure did draw a lot of attention to themselves on purpose so maybe they wanted to get sued all along. Wouldn't that be rich!
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Anonymous Coward, 19 Nov 2009 @ 7:55am

Now, the record labels are crying foul about this, and the vast majority of copyright law experts say that Bluebeat's claim has no chance at all. But, if that's the case, then the record labels own attempts to get new copyrights on remastered albums to avoid the termination rights might also be in jeopardy. It seems like any argument that is made against Bluebeat can soon be used against the labels as well if they really do try to claim copyright on remastered albums.

Don't you know anything about the law? It depends upon who you are as much as what you do. In other words, the law doesn't apply the same to Sony as it does to Bluebeat. I would have thought that would be obvious to anyone.
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Vic, 19 Nov 2009 @ 8:12am

Re: Are they smarter then they seem?
Is it actually possible that the recording industry staged it all from the very start? Hoping that some small unknown Bluebeat would win the case and clear the way for the whole industry. You know like, intentionally losing the battle to win the war.

Meanwhile providing their opponents with a short joy moment (hurray, the RIAA is beaten in court!) and then snatching Bluebeat or forcing them out of business by some other means...
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cars trucks and other products, 19 Nov 2009 @ 8:22am

so riaa sells products
big deal then get over the crap about it being art and move on as i said its all about greed, money and how to control YOUR LIFE.

as i said many times its about MONEY MONEY MONEY
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Terry Hart (profile), 19 Nov 2009 @ 8:31am

No
No, the record labels aren't using the same theory as Bluebeat; two separate issues are at work here.

Bluebeat attempted to claim that they were creating an entirely new sound recording from the original musical composition and were thus eligible for a completely new sound recording copyright. Anyone can do this right now, so long as they are not using the actual sounds from another sound recording (and have permission from the composition owner or follow the compulsory license provisions). I think the court, as well as most of us, didn't buy the fact that Bluebeat wasn't using the existing sound recordings to make their own sound recordings.

In the case of record labels facing an artist terminating his license grant to them, one possibility of avoiding losing the recordings is for the label to create a derivative work based on the original sound recordings. Derivative works created before termination are still effectual after termination.

The trick would be remastering or remixing the original recording just enough to create the requisite originality required for a derivative work copyright while staying close enough to the original recording to be acceptable as a substitute for the consumers.

IMHO, simply remastering a sound recording is not enough to create a new derivative work, they would have to do more to the recordings. In the real world, however, the labels could get away with this until an artist challenges them in court.
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Kazi, 19 Nov 2009 @ 8:34am

Re: Re: Re: Re: Re: Made their bed, now they can lay in it
There's an infinitely large number of ways history could have gone of which many could have ended in apacolypse. If you avoid history you are narrowing down all the valid paths and taking the path to apacolypse!

Therefore, careful. Avoiding history might be just the wrong thing to do!
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CastorTroy-Libertarian, 19 Nov 2009 @ 8:56am

Re: Re: Re: Re: Made their bed, now they can lay in it
Time for a re-boot of America, lets install Linux :) (quote from some days ago, but still sounds good)
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Anonymous Coward, 19 Nov 2009 @ 9:14am

Re: Re: Re: Re: Re: Re: Made their bed, now they can lay in it
...many could have ended in apacolypse.

And many more of which wouldn't have.
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Stuart, 19 Nov 2009 @ 9:21am

Reasons
We should put out a list of reasons not to kill Mitch Glazer so those thinking of it still can be dissuaded from ruining their lives for this piece of shit.
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Calvin (profile), 19 Nov 2009 @ 9:34am

A potential new model for copyright
It seems to me that a lot of the problems with copyright occur when the rights belong to some corporation rather than the original creator of the work.

Why not rewrite copyright law to ONLY allow copyright to individuals rather than corporations and to make those rights non-transferable.

Therefore no selling, bequeathing or assigning those rights to others just individuals making money out of their creative efforts by licensing the use of their works to other individuals for a limited time.

This would mean that copyright only lasted for as long as an individual lived and so the money for the creative effort would be automatically directed towards the creators not some faceless corporation.
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Anonymous Coward, 19 Nov 2009 @ 10:40am

Re: A potential new model for copyright
But corporations are better than people because they can never die. And they have more rights. And can bribe, sorry, lobby government officials way better than a person can.
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AJ (profile), 19 Nov 2009 @ 10:55am

What does "remastering" actually mean?
If remastering means to going back to the original studio multi-track recordings (digitizing as necessary) and re-mixing them, I could see that as being a different kind of thing (and somewhat more worthy of a new copyright for a record company which actually does that) than just re-encoding the digital audio data which is what it sounds like Bluebeat were trying to do. As a result I'm highly skeptical that a court would see these two issues as the same (but IANAL so what do I know).
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Anonymous Coward, 19 Nov 2009 @ 11:42am

Re:
voicing your opinion on your car is so 90s

youre better off with a cool t shirt, or a tatoo
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Beta, 19 Nov 2009 @ 12:37pm

They didn't want to know.
The use of four simple words, buried deep within the bill, which no one other than the RIAA knew about (seriously, those who voted on it later said they had no idea)...

I'm no expert on Congressional protocol, but it sounds as if the system is set up to allow them to vote on things that may have been modified without their knowledge. That's by design, they could change it any time if they wanted, but the freedom from responsibility is just too good to give up. The only sensible solution is to hold them responsible for what they vote for, no excuses for "had no idea".
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Killer_Tofu (profile), 19 Nov 2009 @ 1:32pm

Re: Re: Re: Re: Made their bed, now they can lay in it
The blatant double standards are what annoy me the most as well. And I believe that nobody should get preferential treatment.
For some reason the judges like to give corrupt politicians just a tiny slap on the wrist. But some random guy off the street nobody cares about is who they punish the worst to make an example. It should be the other way around.

While I cannot say that I would agree with a total reboot, I do think a great many sections could stand for a rewrite. IP laws would be a very easy one to do. Just make it an extreme minimum if at all. Trademark is the only good one I see really (and I should point out here that I am talking about its roots in preventing consumer confusion, and that is it). So I guess trademarks shouldn't even really be considered IP, since it isn't about property anyways. At least not in my book. Pretty much all IP laws would be wiped then, and the world would only be a better place. Well, except for those rich few who make their living feeding off of the artists.
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Anonymous Coward, 19 Nov 2009 @ 9:33pm

Re: What does "remastering" actually mean?
just re-encoding the digital audio data which is what it sounds like Bluebeat were trying to do.

Let me guess, you've never really studied information theory, right?
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Anonymous Coward, 19 Nov 2009 @ 9:36pm

Re: I can see some logic
Bluebeat.com is taking a work that someone else has a copyright on and then "remastering" (or whatever the heck they decided to call it) the work.

Um, no, they're weren't remastering, they were simulating. Big difference.
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Anonymous Coward, 19 Nov 2009 @ 9:43pm

Re: Re: I can see some logic
Certainly these situations are not completely analogous. However, in both situations Bluebeat and the labels are claiming a new copyright magically appearing out of either "psycho-acoustic simulations" or "remasterings."

US copyright law specifically exempts "simulations". It makes no mention of "remasters". That's a big difference.

The question is whether either "psycho-acoustic simulation" or "remastering" creates a new copyright?

That should be two separate questions as they are two separate things.
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Anonymous Coward, 19 Nov 2009 @ 10:10pm

Re:
“Mr. Risan fails to provide any details or evidence about the ‘technological process’ that defendants contend was used to create the ‘new’ recordings or adequately explain how the ‘new’ recordings differ in any meaningful way from plaintiffs' recordings,” Walter wrote in approving the preliminary injunction.

"Failed to adequately explain" could simply mean that the judge couldn't comprehend the math and technical details involved. That's really more of a lack of ability on the judge's part than Bluebeat's. It takes a special kind of arrogance to claim that anything you don't understand just hasn't been "adequately explained". It sounds like this judge truly believes he is the greatest genius that has ever lived.

Judge Walter then wrote, “after listening to the CD attached as Exhibit 1….the court, albeit to its musically untrained ear, was unable to detect or discern any meaningful difference between plaintiffs’ recordings and defendants’ recordings.”

So basically, since he couldn't understand the technical details, he just decided to listen to the results and make a decision based on that. The fact that he didn't note much difference between the two just shows that it was a good simulation, not that it *wasn't* a simulation. Yet, that is what the he ruled: that it *wasn't* a simulation because it sounded the same to him. That is an irrational conclusion.
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Anonymous Coward, 19 Nov 2009 @ 10:16pm

Re: No
Bluebeat attempted to claim that they were creating an entirely new sound recording from the original musical composition and were thus eligible for a completely new sound recording copyright.

No quite. They claimed that they created a simulation, and the law exempts simulations. If they were claiming "entirely new sound recordings" then they wouldn't need to claim the simulation exemption, would they?
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Anonymous Coward, 20 Nov 2009 @ 9:22am

Re: No
In the end, this is just a typical Techdirt 'reach'.

It's the creation of confusion of what is being copyrighted or what right have been granted. The record labels are taking existing works that they have rights to, re-doing it (digitally remastered is the term often used), and thus they gain copyright ownership of this new product. They don't get rights to the songs, they don't get ownership of the songs, just the rights to this re-recording.

What Bluebeat was trying to do was push through a loophole, take music they didn't have rights to, apply a process that can be best described as "mumbo jumbo" and attempted to claim ownership of the "new" work.

The situations have nothing in common, except for Mike's desire to stick it to the record labels and create more hatred. He's smart enough to know the difference, but also smart enough to know it would upset you if he actually explained it.
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Anonymous Coward, 20 Nov 2009 @ 2:26pm

Re: Re: No
What Bluebeat was trying to do was push through a loophole, take music they didn't have rights to, apply a process that can be best described as "mumbo jumbo" and attempted to claim ownership of the "new" work.

All that dat-gum new-fangled technical stuff. It's all just a bunch of "mumbo jumbo". Like claiming we went to the moon, now that just aint possible. Of course it's fake!
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Anonymous Coward, 12 Mar 2010 @ 12:07am

The Truth Behind BlueBeat....
Greetings everybody, I registered strictly to comment on this post. I worked at BlueBeat.com (formerly Music Public Broadcasting now Media Rights Technology) for two years. The RIAA nor any other legitimate music industry entity is behind bluebeat's ridiculous claims. The fact is Hank Risan is a rich attention-starved snake-oil peddling loose-cannon with a team of lawyers under his belt who treats bluebeat as some kind of hobby or toy, a vanity website with no direction. He is full of shit and his "psycho-accoustic stimulation" is pure rubbish and everybody who works for him thinks he's nuts. He is simply a rich con man so don't read too much into this situation
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