“The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”

A piece of law designed to allow people to make different tracks using parts of the original piece – sampling the Amen break [1:45], or nicking a riff off Labi Siffre [2:10], but not intended to cover what Blue Beat have done, which is to re-record the song pretty much wholesale. Their defence [via Ben Sheffner's blog] is pinned on their hopes that their copyrighted PsychoAcoustic process creates a new piece of intellectual property, that they own… basically they contend that some hocus-pocus like changing the file from a WAV to an MP3, playing it on a My First Boombox and re-recording through a microphone in a glass of milk, or some other magical process of transformation that ends up with the same noise at the end, will be enough to transform their ‘version’ into a derivative work rather than just a rip off. Unlikely. If anyone out there was thinking of it, we’d ask you not to try and upload anything similar to our digital music distribution service. The precise details of why BlueBeat consider their process to constitute a method of creating a new artefact aren’t online yet, but I’m looking forward to seeing what they say in their next filing on the 10th of Nov.