• by Wendy Davis , Staff Writer @wendyndavis, November 19, 2009

If a judge was skeptical of BlueBeat's "pschoacoustic simulation" argument the first time the company raised it, the passage of time hasn't made the concept any more plausible.

U.S. District Court Judge John Walter in Los Angeles granted the EMI's request for a preliminary injunction banning the music site from continuing to sell Beatles tracks. Walter had earlier issued a temporary restraining order against the site.

The Beatles' catalog has never been available in digital downloads, so many observers, EMI included, were surprised when BlueBeat.com recently began selling the tracks for 25 cents apiece.

BlueBeat CEO Hank Risan insisted that he was entitled to offer the tracks because his company had created them via something called psychoacoustic simulation.

He attempted to define psychoacoustic simulation in his court papers, saying it involved buying Beatles CDs, making one copy each and then having them analyzed "by artistic operators who, employing principles of psychoacoustics and advanced harmonic analysis, synthesized an independent parametric model of the sounds."

The explanation continues: "Positing assumptions as to the location of the microphone and special relationship to the voice and instruments involved in a given recorded performance, the artistic operator then generated and fixed new sounds by selecting new capture points and new source points in a new virtual three dimensional computer-staged environment. The simulation, thus created, contained new and original spherical source point waves."

Walter was unpersuaded: "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," he wrote.

The judge also said that his "musically untrained ear" was "unable to detect or discern any meaningful difference between plaintiffs' recordings and defendants' recordings."