We now have the full legal theory behind BlueBeat.com's attempt to sell remastered Beatles tracks online for a quarter each. It's so odd that the federal judge overseeing a music industry lawsuit against the site decided he didn't even need to hold the hearing scheduled for tomorrow. Instead, he blasted BlueBeat's "psycho-acoustic modeling" defense and extended his temporary injunction into something more permanent.

In a strange declaration that covers all sorts of ground completely unrelated to the lawsuit (and is littered with typos), BlueBeat founder Hank Risan told the court last week that the songs for sale on his site are totally new recordings that he created and that he in fact owns the copyrights on. This is possible thanks to the wonder of psycho-acoustic simulation.

Risan essentially admits to re-recording the material in question and passing it through some sort of filtering software. He claims that this is totally legal under a US provision which says that new, independent recordings of the same song count as separate copyrightable entities. The provision exists to make clear that recording a cover version of a song, or a live version from a band in concert, or even re-recording the same band in a studio later in its career produces a "new" work.

The labels argue that Risan is not actually herding The Beatles into a studio and recording "independent" performances of their songs (which would be legal), but using the original sound recordings to create a derivative work (the prerogative of the copyright holder).

Instead of addressing the central questions in the case, they say, "Defendants deliberately obfuscate them, relying on technobabble and doublespeak rather than evidence or legal authority... If there were any remaining doubt, it is put to rest by the testimony of Plaintiffs' head of technology, who confirmed that the digital files being distributed and publicly performed by Defendants are copies of Plaintiff's recordings, with only minor technical variations consistent with the process by which recordings are compressed into (ie, copied into) digital MP3 files."

Risan counterpointed by submitting to the court the binary printout of one-second clips from each song, showing that the data in the two was quite different - as of course it would be after compression and filtering.

In any event, the court didn't want to hear any more. The judge issued a decision from his chambers in which he said that "psychoacoustic simulation" had been "vaguely" described by Risan. "Specifically, 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."

The judge actually listened to BlueBeat tracks and original versions in chambers. "Indeed, after listening to the CD attached as Exhibit 1 to the Declaration of Thomas Schlum, the Court, albeit to its musically untrained ear, was unable to detect or discern any meaningful difference between Plaintiffs’ Recordings and Defendants’ recordings," he noted.

Even if he had been able to detect differences, it probably would not have mattered, since BlueBeat was not making an "independent" recording of the sounds (hauling The Beatles into the studio again), but a derivative one (based on the CDs). If Risan's theory here were allowed, anyone who re-recorded copyrighted recordings would suddenly control the copyright in these "new" recordings and could start selling them. The labels pointed out that this could clearly not be what was envisioned by US copyright law, and the judge agreed.

Unless Risan comes up with a better defense before the judge issues summary judgment (which looks likely), the BlueBeat site looks to be down for good.