As the end use is the same, it makes no difference -- music is music as example; a live performance, vinyl, tape, CD or mp3 all make the sounds of music there is no difference in the basic end result.

To be more concise; all these forms are matter (or energy - electrons in motion) in transition -- a note is played live then it vanishes in the air if not recorded.

Lame argument in this case's pleadings IMHO ...