Bluebeat Opposition To Preliminary Injunction

Case 2:09-cv-08030-JFW-JC Document 15 Filed 11/10/2009 Page 1 of 12
1 ARCHIE S. ROBINSON [SBN. 34789]

asr@robinsonwood.com
2 JOSHUA J. BORGER [SBN. 231951]
jjb@robinsonwood.com
3 ROBINSON & WOOD, INC.
227 N 1st Street
4 San Jose, California 95113
Telephone: (408) 298-7120
5 Facsimile: (408) 298-0477
6 Attorneys for Defendants
BLUEBEAT, INC., MEDIA RIGHTS
7 TECHNOLOGIES, INC., BASEBEAT,
INC. and HANK RISAN
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
11
ROBINSON & WOOD, INC.
12 CAPITOL RECORDS, LLC, a Case No. CV 09 08030 JFW (JCx)

ATTORNEYS AT LAW
Delaware limited liability company;

13 CAROLINE RECORDS, INC., a New MEMORANDUM OF POINTS AND
York Corporation; EMI CHRISTIAN AUTHORITIES IN OPPOSITION
14 MUSIC GROUP, INC., a California TO ORDER TO SHOW CAUSE RE
Corporation, PRIORITY RECORDS, PRELIMINARY INJUNCTION
15 LLC, a Delaware limited liability
company; VIRGIN RECORDS Date: November 20, 2009
16 AMERICA, INC., a California Time: 11:00 a.m.
Corporation; and NARADA Judge: Hon. John F. Walter
17 PRODUCTIONS, INC., a Wisconsin Dept.: 16
corporation,
18
Plaintiffs,
19
vs.
20
BLUEBEAT, INC., a Delaware
21 corporation, doing business as
www.bluebeat.com, MEDIA RIGHTS
22 TECHNOLOGIES, INC., a California
corporation; BASEBEAT, INC., a
23 Delaware corporation, doing business as
www.basebeat.com and HANK RISAN,
24 an individual; and Does 1 through 10,
25 Defendant.
26
27
28
539429 CV 09 08030 JFW (JCx)
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO ORDER TO SHOW CAUSE RE
PRELIMINARY INJUNCTION
1 I.
INTRODUCTION
2
Hank Risan, chief executive of Bluebeat, at incalculable expense and effort,
3
spent nine years researching and developing a breakthrough psychoacoustic process
4
that creates original sounds which simulate - - but are different from - - those in
5
copyrighted sound recordings. The result is a musical performance digitally
6
produced within a virtual three dimensional stage environment that provides an
7
impressionistic listening experience closely approximating that of a live musical
8
performance.
9
The sounds created are not mere copies of original sound recordings. Nor are
10
they re-mastered, re-mixed, or re-formatted sounds from other sound recordings.
11
They are independent, original sounds created by an artistic author.
12
ATTORNEYS AT LAW
Mr. Risan's work was not done in a vacuum. Indeed, plaintiffs themselves
13
were participants in the evaluation of Mr. Risan's simulations. Since 2001, Mr.
14
Risan's development has been done under the watchful eye and approval of
15
plaintiffs and their trade association, the Recording Industry Association of America
16
("RIAA"). Mr. Risan's work has been done under statutory licenses authorizing the
17
making of ephemeral copies of sound recordings and the broadcast of sound
18
recordings over the internet.
19
Contemporaneously with work on the simulations, Mr. Risan designed, built
20
and ultimately patented the first Secure Copy Management System ("SCMS") that
21
protects internet transmissions from being copied without consent while at the same
22
time insuring royalty payments. Until taken down recently as a result of this
23
litigation, Bluebeat's website had been in operation since 2004. During that time,
24
accurate and complete royalty reports and payments were made to the Sound
25
26
27
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1 CV 09 08030 JFW (JCx)
1 Exchange, agent for royalty collection on behalf of the record labels, and to music
2 publishers.1
3 Plaintiffs' request for preliminary injunction should be denied because they
4 are not likely to succeed in establishing infringement on the merits. None of the
5 three exclusive rights claimed by plaintiffs has been infringed by defendants.
6 First, plaintiffs' exclusive right of reproduction is expressly limited by 17
7 U.S.C. §112. That section permits a statutory licensee, such as Bluebeat, to make
8 one (ephemeral) copy of a copyrighted sound recording in aid of a licensed
9 webcaster's authorized digital transmission of the sound recording under section
10 114. As a statutory licensee, Bluebeat was authorized to make ephemeral copies of
11 plaintiffs' sound recordings and did so, as prescribed by the Copyright Act. As will
12 be discussed in detail later, simulations were created from those ephemeral copies,
ATTORNEYS AT LAW
13 consisting of the independent fixation of other sounds. Those simulations are

14 protected from infringement liability by section 114(b).
15 Second, plaintiff s exclusive right to distribute has not been infringed by
16 reason of the difference in the sounds between the digital performance delivery of
17 the simulations as compared to the sounds in plaintiffs' copyrighted works.
18 Third, the exclusive right to publicly perform has not been infringed by
19 Bluebeat's transmission of plaintiffs' copyrighted sound recordings over the internet
20 because such transmissions are authorized by Bluebeat's statutory license.
21 Moreover, the simulations do not infringe plaintiffs' performance right because of
22 the difference between the sounds in the simulations and those in the copyrighted
23 sound recordings.
24
25
1
26 Attached hereto and marked as Exhibit 1 are exemplar royalty reports,
showing payment of royalties for transmissions of Beatles sound recordings. A
27 complete computer printout can be produced upon request.
28
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2 CV 09 08030 JFW (JCx)
1 Finally, Plaintiffs' pre-1972 sound recordings fare no better under state law,
2 since simulations containing sounds other than those in plaintiffs' recordings are
3 exempt from liability under California Civil Code §980(a)(2),
4 Plaintiffs' request for preliminary injunction should be denied.
5 II.
BLUEBEAT'S SIMULATIONS ARE ORIGINAL WORKS OF
6 AUTHORSHIP AND CONTAIN DIFFERENT SOUNDS THAN
THOSE IN PLAINTIFFS' COPYRIGHTED WORKS
7
Mr. Risan began working in psychoacoustics back in the late 1970's while
8
pursuing a Ph.D. in mathematics and neurobiology at the University of California.
9
Later, in 2001, Mr. Risan formed Museum of Musical Instruments ("MOMI") and
10
obtained a statutory license under section 112 and 114 to make ephemeral copies of
11
sound recordings for the purpose of broadcasting them on the internet. Because the
12
ATTORNEYS AT LAW
quality of sound in commercially sold CD's was of inferior quality at that time, Mr.
13
Risan began experimenting with methods to create new synthetic sounds that
14
simulated original recordings, but contained none of the masking or distortion of the
15
CD's.
16
From his research and experience, Mr. Risan knew that musical tones
17
produced by instruments or the voice consist of a sequence of time-dependent,
18
pressurized spherical waves that originate from a source point and propagate
19
through the air to the human ear. When received by the ear, these sound waves are
20
converted into electrical action potentials for the brain to process. As a result of the
21
brain's processing, the sounds of a recording are perceived to have certain artistic
22
characteristics. Five of these parameters are pitch, 2 loudness,3 rhythm, 4 timbre, 5 and
23
space. 6
24
25
26 2
"Pitch" is perhaps the most significant information in music. This complex
27 parameter is responsible for communicating the artistic message of a musical work.
Its components consist of the melodic lines of the work, its chords, its register, and
28
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3 CV 09 08030 JFW (JCx)
1 Every musical sound in a sound recording has a point of origin, called the
2 source point, as well as a capture point, where the sound is affixed.
3 To create "pure sound" simulations, Mr. Risan purchased CD's of sound
4 recordings over the counter. Ephemeral copies were made, as authorized by the
5 section 112 license, and destroyed shortly thereafter. The original sound recordings
6 were partitioned into segments for observation. The segments were analyzed by an
7 artistic operator who, employing principles of psychoacoustics and advanced
8 harmonic analysis, synthesized an independent parametric model of the sounds. A
9 firewall was utilized to preserve independence between the sounds of the model and
10 those of the original recordings.
11 Positing assumptions as to the location of the microphone and spatial
12 relationship to the voice and instruments involved in a given recorded performance,

ATTORNEYS AT LAW
13 the artistic operator then generated and fixed new sounds by selecting new capture
14 points and new source points in a new virtual three-dimensional computer-staged
15 environment . The simulation, thus created, contained new and original spherical
16 source point waves. To determine whether the simulations contained sounds
17 different from those in the original sound recordings, a one second clip of the
18 Beatles song, "Revolution" was played, the output from which was captured and
19 expressed in binary format. The comparable one second clip from Bluebeat's
20 simulation of the same Beatles' song was similarly captured and expressed in binary
21
(cont.)
22 its range, and in short, its overall tonal organization. The physical dimension of
23 pitch is expressed in terms of "frequency."
3
24 "Loudness" is the amplitude of the sound.
4
25 "Rhythm" is the length of time the sound is perceived.
5
"Timbre" is the brain's perception of the overall quality of the sound.
26
6
"Space" is the brain's perception of the sound at its source point, e.g., the
27 sound stage.
28
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4 CV 09 08030 JFW (JCx)
1 format. A comparison of the two binary expressions irrefutably shows that they are
2 of different lengths and contain markedly different data sequences. The simulation,
3 therefore, is shown to contain sounds different from the copyrighted recording.
4 (Risan Declaration, pages 4 and 5.)
5 When propagated to the human ear and processed by the brain, the new
6 sounds contain some parameters, such as loudness and rhythm, that may be
7 perceived to resemble those in the original recordings, while others, like pitch,
8 timbre and space, may be perceived as markedly different. During the process of
9 creating the simulations, all five artistic parameters of sound are adjusted by the
10 human operator. The adjustment is not a mechanical process, but a subjective,
11 interpretive one. The result is an original sound recording that embodies the artistic
12 opinion of the operator: a live, original performance within a specially created

ATTORNEYS AT LAW
13 virtual three-D staging environment. (Risan Declaration, Page 5)

14 The artistic expression of the simulations contains substantial, not trivial,
15 originality. Chamberlain v. Uris Sales Corp., 150 F.2d at 513 (Second Circuit
16 1945). The simulations are clearly not copies of original recordings, and owe their
17 creation to their author, Bluebeat, not the owners of copyright on the original
18 recordings. Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d at 102-103 (Second
19 Circuit 1951); Sheldon v. Metro Golden Pictures, 81 F.2d 49, 54 (Second Circuit
20 1936). That the simulations contain appreciable authorship beyond slavish or
21 "sweat of the brow" mechanical reproduction cannot, under the Supreme Court's
22 long-established teachings, be seriously disputed. See Feist Publications Inc. v.
23 Rural Telephone Service Company, Inc., 49 U.S. 340 (1991), Burrow-Giles Lith.
24 Printing Co. v. Sarony, 111 U.S. 53 (1884).
25 The test of originality has a low threshold. "[A]ll that is needed . . . is that the
26 "author" contributed something more than a "merely trivial" variation, something
27 recognizably "his own"." Alfred Bell, supra, at 103. (Although "no large measure
28 of novelty needed".)
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5 CV 09 08030 JFW (JCx)
1 III.
DEVELOPMENT OF SECURE XI AND EVALUATION BY
2 PLAINTIFFS
3 Mr. Risan designed and built a Secure Copy Management System ("SCMS"),
4 described in Chapter 10 of Title 17 of the United States Code. The purpose of the
5 SCMS, called "Secure XI Recording Control," is to protect digital audio
6 transmissions and audio-visual displays on the internet from being copied without
7 consent. The SCMS also ensures royalty payments by accurately accounting for
8 each transmission of a copyrighted sound recording.
9 Nondisclosure agreements were entered into by MRT and the major recording
10 labels, including plaintiffs, and the RIAA, as early as 2001, for the purpose of
11 demonstrating the effectiveness of Secure XI. (Risan Declaration, page 6), In
12 January, Mr. Risan personally demonstrated the Bluebeat audio visual display site
ATTORNEYS AT LAW
13 and delivery methods to the RIAA in Washington, D.C. During this demonstration,
14 Mr. Risan discussed the simulations with the RIAA. (Risan Declaration, page 6)
15 In March 2002, MRT entered into a software evaluation license with the
16 RIAA and its U.K. parent, IFDI, for the purpose of testing MRT's SCMS. The tests
17 confirmed that he Secure XI was 100% effective. (Risan Declaration, page 6)
18 In 2004, when the Bluebeat website was ready for launch to the public, but
19 prior to that launch, MRT entered into confidential agreements with major recording
20 labels, including plaintiffs, permitting them to evaluate whether any non-licensed or
21 infringing material was on the site. The labels, including plaintiffs, were given
22 password protected accounts offering private access to Bluebeat's entire site.
23 During this period of evaluation, Mr. Risan disclosed to plaintiffs that the sound
24 recordings Bluebeat intended to transmit were independently created simulations
25 and would be delivered by direct download, limited to a single play as per the
26 encoded management control.
27 Also, during this evaluation process, plaintiffs, among other labels, requested
28 display of certain background information for each sound recording transmitted by
539429
6 CV 09 08030 JFW (JCx)
1 Bluebeat. The labels requested that the titles of the works and tracks, names of the
2 labels, dates of CDs' first issue and names of composers be displayed in order to
3 promote the works and to insure accurate royalty payment. Further, plaintiffs and
4 the other labels requested that Bluebeat incorporate back – end server meta-data for
5 broadcast transmission verification. This was accomplished at substantial expense
6 to Bluebeat. (Risan Declaration, pages 9-10). The entire Beatles catalog was
7 included in Bluebeat's website during the evaluation by plaintiffs and the other
8 labels. Plaintiffs made no objection to its inclusion.
9 Since the Bluebeat site has been in operation, all performance royalties
10 payable under Bluebeat's section 112 and 114 licenses as well as all publishing
11 royalties have been paid for each and every digital transmission of sound recording
12 made by Bluebeat.
ATTORNEYS AT LAW
13 IV.
PLAINTIFFS' EXCUSIVE RIGHTS HAVE NOT BEEN
14 VIOLATED
15 A. Plaintiff's Right of Reproduction is Limited by Section
112
16
Section 112 of Title 17 provides that "it is not an infringement of copyright
17
for a transmitting organization entitled to transmit to the public a performance or
18
display of a work, under a license, including a statutory license under section 114(f)
19
… to make no more than one copy or phono record of a particular transmission
20
program embodying the performance or display, if – (A) the copy or phonorecord is
21
retained and used solely by the transmitting organization that made it, and no further
22
copies or phonorecords are reproduced from it; and … (C) … the copy or phono
23
record is destroyed within six months from the date the transmission program first
24
transmitted to the public." BlueBeat was authorized to make an ephemeral copy.
25
Mr. Risan limited the ephermal copies to one per sound recording and destroyed
26
them within six months of the initial transmission. Risan Decl., ¶ 4. Moreover, as
27
has been explained above, the simulations created from the ephermal copies
28
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7 CV 09 08030 JFW (JCx)
1 consisted of the independent fixation of sounds other than those contained in the
2 copyrighted materials. Section 114(b) provides that the exclusive rights to
3 reproduce "do not extend to the making or duplication of another sound recording
4 that consists entirely of an independent fixation of other sounds, even though such
5 sounds imitate or simulate those in the copyrighted sound recording." As
6 established above, the simulations are independent fixations of different sounds than
7 those in the copyrighted materials.
8 B. The Right to Distribute Has Not Been Infringed
9 By virtue of the difference in sounds between the simulations and the
10 copyrighted sound recordings, Plaintiff's right to distribute has not been infringed.
11 C. The Exclusive Right to Publicly Perform Has Not Been
Infringed
12
ATTORNEYS AT LAW
Section 114(d) of Title 17 exempts statutory licensees from a finding of

13
infringement of the right of public performance set forth in Section 106(6), provided
14
the transmission is not part of an interactive service. BlueBeat operates as a non-
15
interactive service with respect to digital audio transmissions. See Risan Decl., ¶
16
__. In the case of BlueBeat's audio visual displays, Section 114(j)(5) places audio
17
visual work outside of the definition of "digital audio transmission."
18
D. Defendants Are Not Liable for Infringement Under
19 State Law
20 Defendants cannot be liable for duplicating or distributing pre-1972
21 recordings because Civil Code section 980(a)(2) expressly exempts from liability
22 one who "independently makes or duplicates another sound recording that does not
23 directly or indirectly recaptures the actual sounds fixed in such prior sound
24 recording, but consists entirely of an independent fixation of other sounds, even
25 though such sounds imitate or simulate the sounds contained in the prior sound
26 recording."
27
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8 CV 09 08030 JFW (JCx)
1 V.
CONCLUSION
2
For the reasons expressed herein, Defendants have created in their simulations
3
sounds other than those contained in the Plaintiffs' copyrighted sound recordings.
4
Defendants possess a statutory license under section 114 which permits the making
5
of ephermal copies from and the transmission of Plaintiffs' copyright sound
6
recordings. The simulations which have been created by Defendants have been
7
proven to contain sounds different than those contained in Plaintiffs' copyrighted
8
recordings.
9
Plaintiffs are not entitled to injunction relief. The temporary restraining order
10
should be dissolved.
11
Dated: November 10, 2009 ROBINSON & WOOD, INC.
12
ATTORNEYS AT LAW
13
14 By: /s/
15 ARCHIE S. ROBINSON
JOSHUA J. BORGER
16 Attorneys for Defendants
17 BLUEBEAT, INC., MEDIA RIGHTS
TECHNOLOGIES, INC., BASEBEAT,
18 INC. and HANK RISAN
19
20
21
22
23
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9 CV 09 08030 JFW (JCx)
1 TABLE OF CONTENTS
2 Page
3
4 I. INTRODUCTION ............................................................................................. 1
5 II. BLUEBEAT'S SIMULATIONS ARE ORIGINAL WORKS OF
AUTHORSHIP AND CONTAIN DIFFERENT SOUNDS THAN
6 THOSE IN PLAINTIFFS' COPYRIGHTED WORKS .................................... 3
7 III. DEVELOPMENT OF SECURE XI AND EVALUATION BY
PLAINTIFFS ..................................................................................................... 6
8
IV. PLAINTIFFS' EXCUSIVE RIGHTS HAVE NOT BEEN VIOLATED ......... 7
9
A. Plaintiff's Right of Reproduction is Limited by Section 112.................. 7
10
B. The Right to Distribute Has Not Been Infringed .................................... 8
11
C. The Exclusive Right to Publicly Perform Has Not Been Infringed........ 8
12
ATTORNEYS AT LAW
D. Defendants Are Not Liable for Infringement Under State Law ............. 8
13
V. CONCLUSION ................................................................................................. 9
14
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25
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27
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539429
i CV 09 08030 JFW (JCx)
1 TABLE OF AUTHORITIES
2 Page
3
4 FEDERAL CASES
5 Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d at 102-103 (Second Circuit
1951) .................................................................................................................. 5
6
Burrow-Giles Lith. Printing Co. v. Sarony, 111 U.S. 53 (1884)................................. 5
7
Chamberlain v. Uris Sales Corp., 150 F.2d at 513 (Second Circuit 1945)................. 5
8
Feist Publications Inc. v. Rural Telephone Service Company, Inc., 49 U.S.
9 340 (1991), ........................................................................................................ 5
10 Sheldon v. Metro Golden Pictures, 81 F.2d 49, 54 (Second Circuit 1936)................. 5
11
12 STATE STATUTES
ATTORNEYS AT LAW
13 California Civil Code §980(a)(2) ................................................................................ 3

14
15 OTHER AUTHORITIES
16 17 U.S.C. §112............................................................................................................. 2
17
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21
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24
25
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Bluebeat Opposition To Preliminary Injunction

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Case 2:09-cv-08030-JFW-JC Document 15 Filed 11/10/2009 Page 1 of 12

1 ARCHIE S. ROBINSON [SBN. 34789]

12 CAPITOL RECORDS, LLC, a Case No. CV 09 08030 JFW (JCx)

Delaware limited liability company;

13 consisting of the independent fixation of other sounds. Those simulations are

12 relationship to the voice and instruments involved in a given recorded performance,

12 opinion of the operator: a live, original performance within a specially created

13 virtual three-D staging environment. (Risan Declaration, Page 5)

Section 114(d) of Title 17 exempts statutory licensees from a finding of

13 California Civil Code §980(a)(2) ................................................................................ 3

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