Advanced Copyright Issues on the Internet - Fenwick & West LLP

one hour of a request or at a time designated by the transmitting entity or theindividual making the request. 2243The <strong>Copyright</strong> Office denied the petition, ruling, among other things, that “[i]n light ofthe rapidly changing business models emerging in today’s digital marketplace, no rule canaccurately draw the line demarcating the limits between an interactive service and anoninteractive service. Nor can one readily classify an entity which makes transmissions asexclusively interactive or noninteractive.” 2244 The Office concluded that the determination ofwhether a particular activity is “interactive” must be determined on a case by case basis upon afull evidentiary record. 2245(a) Arista Records v. Launch MediaIn Arista Records, LLC v. Launch Media, Inc., 2246 the Second Circuit, affirming a jurydetermination, held that the LAUNCHcast webcasting service was not an “interactive” servicewithin the meaning of Section 114(j)(7) as a matter of law, 2247 and Launch Media could thereforerely on the statutory license for public performances via digital audio transmissions. TheLAUNCHcast service enabled a user to create “stations” that played songs within a particulargenre or similar to a particular artist or song the user selected. Specifically, upon registeringwith the service, the user would select artists whose music she preferred. The user would thenlist genres the user enjoyed and rate them on a scale. The user was also asked the percentage ofsongs the user had not previously rated the user would like to incorporate into the user’s station(the “unrated quota”). The minimum unrated quota was 20%. Once LAUNCHcast beganplaying music based on the user’s preferred artists and genres, the user would rate the songs,artists, and albums played between zero and 100. Below the rating field were hyperlinks termed“history,” “share,” and “buy.” The history hyperlink allowed the user to see a list of the songspreviously played, and the buy hyperlink facilitated the user’s purchase of the songs. The sharehyperlink allowed the user to share the station with other users. That feature facilitated thesubscription of one user to another user’s station. While a song played, the user had the abilityto pause the song, skip the song, or delete the song from the station by rating it zero. The userwas not able to go back to restart a song that was playing, or to repeat any of the previouslyplayed songs in the playlist. 2248Each time the user logged into the LAUNCHcast service and selected a station, theservice generated a playlist of 50 songs selected from a hashtable of potential songs that could beput into the playlist. The hashtable was generated using a very complicated algorithm that tookinto account numerous variables, only some of which included the user’s preferred artists and2243 65 Fed. Reg. 77330, 77331 (Dec. 11, 2000).2244 Id. at 77332-33.2245 Id. at 77332.2246 578 F.3d 148 (2d Cir. 2009), cert. denied, 2010 U.S. LEXIS 810 (Jan. 25, 2010).2247 The court ruled that the issue of interactivity presents an issue of law. Id. at 151-52.2248 Id. at 157-58.- 488 -