Arista Records, Inc. v. Launch Media, Inc., No. 07-2576 (2d Cir. 2009)

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07-2576-cv Arista Records, Inc. v. Launch Media, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2008 (Argued: March 17, 2009 Decided: August 21, 2009) Docket No. 07-2576-cv Arista Records, LLC, formerly known as Arista Records, Inc., Bad Boy Records, BMG Music, doing business as The RCA Record Label and Zomba Recording LLC, formerly known as Zomba Recording Corporation, Plaintiffs-Appellants, Capitol Records, Inc., Virgin Records America, Inc., Sony Music Entertainment, Inc., UMG Recordings Inc., Interscope Records and Motown Records Company L.P., Plaintiffs, v. Launch Media, Inc., Defendant-Appellee. Before: C ALABRESI, W ESLEY, Circuit Judges, and D RONEY, * District Judge. * The Honorable Christopher F. Droney, Judge of the United States District Court for the District of Connecticut, sitting by designation. Page 1 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Arista Records, LLC, Bad Boy Records, BMG Music, and Zomba Recording LLC (collectively, BMG ), appeal from the judgment of the United States District Court for the Southern District of New York (Owen, J.), and from interlocutory orders merged into the judgment, finding that the webcasting internet radio service LAUNCHcast provided by Defendant-Appellee Launch Media, Inc. ( Launch ) was not an interactive service within the meaning of 17 U.S.C. § 114(j)(7). We affirm because as a matter of law LAUNCHcast was not an interactive service. It does not provide copyrighted sound recordings on request, nor does it transmit a program specially created for the user within the meaning of § 114(j)(7). 31 We are the first federal appellate court called upon to A FFIRMED. H ADRIAN R. K ATZ (Sarah M. Brackney, on the brief), Arnold & Porter, LLP, Washington, DC (Robert A. Goodman, on the brief, New York, NY), for Plaintiffs-Appellants. M ICHAEL S. E LKIN, (Thomas P. Lane, Shari Markowitz Savitt, on the brief), Winston & Strawn LLP, New York, NY, for Defendant-Appellee. W ESLEY, Circuit Judge: 32 determine whether a webcasting service that provides users 33 with individualized internet radio stations the content of 34 which can be affected by users ratings of songs, artists, 35 and albums is an interactive service within the meaning of 36 17 U.S.C. § 114(j)(7). 37 webcasting service would be required to pay individual If it is an interactive service, the Page 2 of 42 1 licensing fees to those copyright holders of the sound 2 recordings of songs the webcasting service plays for its 3 users. 4 service must only pay a statutory licensing fee set by the 5 Copyright Royalty Board. 6 defendant does not provide an interactive service and 7 therefore is not liable for paying the copyright holders, a 8 group of recording companies, a licensing fee for each 9 individual song. If it is not an interactive service, the webcasting A jury determined that the The recording companies appeal claiming 10 that as a matter of law the webcasting service is an 11 interactive service, and alternatively, that the district 12 court s instruction to the jury, as well as its admission 13 and exclusion of certain evidence and testimony, was harmful 14 error. 1 15 interactive service as a matter of law. Background 2 16 17 We affirm; the webcasting service is not an On May 24, 2001 Arista Records, LLC, Bad Boy Records, 1 The recording companies also ask us to reach an issue of damages calculation and to reassign the case to another district court judge. Because we affirm on the issue of law we need not reach these issues. 2 Plaintiffs-Appellants appeal the judgment of the United States District Court for the Southern District of New York (Owen, J.), entered on May 16, 2007, and from interlocutory orders merged into the judgment, finding in favor of Defendant-Appellee Launch Media, Inc., now owned by Yahoo!, Inc. ( Yahoo ). Page 3 of 42 1 BMG Music, and Zomba Recording LLC (collectively, BMG ) 2 brought suit against Launch Media, Inc. ( Launch ) alleging 3 that Launch violated provisions of the Digital Millennium 4 Copyright Act of 1998, Pub. L. 105-304, 112 Stat. 2860 5 (1998) (the DMCA ), codified in relevant part in 17 U.S.C. 6 § 114, by willfully infringing sound recording copyrights of 7 BMG from 1999 to 2001. 8 the Southern District of New York (Owen, J.) denied the 9 parties cross-motions for dismissal under Federal Rule of The United States District Court for 10 Civil Procedure 12(b)(6) and summary judgment. The case was 11 tried before a jury, and after the district court denied 12 BMG s motion for judgment as a matter of law, the jury 13 returned a verdict for Launch. 14 Launch operates an internet radio website, or 15 webcasting service, called LAUNCHcast, which enables a 16 user to create stations that play songs that are within a 17 particular genre or similar to a particular artist or song 18 the user selects. 19 recordings of some of the songs LAUNCHcast plays for users. 20 BMG, as a sound recording copyright holder, has no BMG holds the copyrights in the sound 21 copyright in the general performance of a sound recording, 22 see 17 U.S.C. §§ 106(4), 114(a), but BMG does have the 23 exclusive right to perform the copyrighted [sound Page 4 of 42 1 recording] publicly by means of a digital audio 2 transmission, 17 U.S.C. § 106(6). 3 that LAUNCHcast provides a digital audio transmission within 4 the definition of § 106(6). 5 114(j)(5). 6 i.e., play or broadcast its copyrighted sound recording 7 pay an individual licensing fee to BMG if the performance of 8 the sound recording occurs through an interactive service. 9 See 17 U.S.C. § 114(d)(3)(C). 10 Launch does not dispute See 17 U.S.C. §§ 101, BMG has a right to demand that those who perform An interactive service is defined as a service that 11 enables a member of the public to receive a transmission of 12 a program specially created for the recipient, or on 13 request, a transmission of a particular sound recording . . 14 . , which is selected by or on behalf of the recipient. 15 Id. § 114(j)(7). 16 interactive service and its primary purpose . . . is to 17 provide to the public such audio or other entertainment 18 programming, id. § 114(j)(6), the transmitter need only pay 19 a compulsory or statutory licensing fee set by the Copyright 20 Royalty Board made up of Copyright Royalty Judges appointed 21 by the Library of Congress, 3 see id. § 114(f). If a digital audio transmission is not an 3 Prior to 2004, parties were required to submit their claims for statutory licensing fees to Copyright Arbitration Royalty Panels. This system was phased out by the Copyright Page 5 of 42 1 At trial, BMG claimed that between November 1999 and 2 May 2001 Launch through LAUNCHcast provided an 3 interactive service and therefore was required to obtain 4 individual licenses from BMG to play BMG s sound recordings. 5 To demonstrate how LAUNCHcast functioned, BMG submitted an 6 email from Jeff Boulter, Senior Director of Product 7 Development at Launch, in which Boulter described how 8 LAUNCHcast generated a list of songs using the user s 9 preferences. In turn, Launch submitted a report from 10 Margaret L. Johnson, a computer science professor at 11 Stanford University, which also detailed how LAUNCHcast 12 generated songs for a user. 4 13 between the parties with regard to how LAUNCHcast works. 14 The jury returned a verdict in favor of Launch. 15 There is no material dispute BMG appeals the district court s denial of BMG s 16 motions for dismissal under 12(b)(6), summary judgment after 17 discovery, and judgment as a matter of law before the jury 18 verdict, arguing that LAUNCHcast is an interactive service 19 as a matter of law because LAUNCHcast is designed and Royalty and Distribution Reform Act of 2004, Pub. L. 108419, 118 Stat. 2341 (2004), codified in relevant part at 17 U.S.C. § 114(f). 4 The substance of Boulter and Johnson s accounts of LAUNCHcast operation are provided in greater detail infra. Page 6 of 42 1 operated to enable members of the public to receive 2 transmissions of programs specially created for them. 3 claims that under the DMCA there is no tipping point for the 4 level of influence a user must assert before the program 5 becomes an interactive service all that matters is that 6 the alleged copyright infringer is transmi[tting] . . . a 7 program specially created for the user. 8 claims the district court s jury instruction was error in 9 several respects. Alternatively, BMG Discussion 10 11 BMG The district court charged the jury with determining 12 whether LAUNCHcast was an interactive service within the 13 meaning of § 114(j)(7). The district court indicated that it 14 was for the jury to decide how much influence a consumer or 15 a recipient can have on the programing offered by the 16 transmitting entity . . . the broadcaster before that 17 activity must be characterized as interactive, keeping in 18 mind the purpose of the statute. 19 the district court noted that there is no bright line 20 marking the limits between an interactive service and a 21 noninteractive service. 22 the jury into believing that it was the jury s 23 responsibility to determine the legal definition of On two separate occasions These instructions may have misled Page 7 of 42 1 interactive, a task far beyond the scope of its duty. 2 LNC Invs., Inc. v. First Fid. Bank, N.A. N.J., 173 F.3d 454, 3 467-68 (2d Cir. 1999). 4 See But we need not determine the propriety of the 5 instruction because we agree with BMG that the central issue 6 of this case interactivity presents an issue of law. 5 7 The parties do not materially disagree on how LAUNCHcast 8 works; their point of conflict centers on whether the 9 program is interactive as defined by the statute clearly 10 an issue of law and therefore strictly under the purview of 11 the courts. 12 (2d Cir. 1998). 13 See United States v. Nolan, 136 F.3d 265, 271 An interactive service according to the statute is 14 one that enables a member of the public to receive a 15 transmission of a program specially created for the 16 recipient, or on request, a transmission of a particular 17 sound recording, whether or not as part of a program, which 18 is selected by or on behalf of the recipient. 19 § 114(j)(7). 20 meaning of its operative term specially created. 17 U.S.C. The statute provides little guidance as to the 5 BMG has argued as much by moving for dismissal under 12(b)(6), summary judgment, and for judgment as a matter of law on the issue of interactivity and appealing the denial of these motions to this Court. Page 8 of 42 1 According to Merriam-Webster s Collegiate Dictionary, 2 specially means: (1) in a special manner ; (2) for a 3 special purpose ; (3) in particular or specifically ; or 4 (4) especially. 5 to bring into existence ; (2) to produce ; (3) to cause 6 or occasion ; or (4) to design. Create, the root of created, means: (1) 7 These definitions indicate that a specially created 8 program is a program produced or designed specifically for 9 the user not much help defining the terms of the statute 10 in this case. 11 argues that any service that reflects user input is 12 specially created for and by the user and therefore 13 qualifies as an interactive service. 14 the statute so broadly. 15 wrote that [a] word is not a crystal, transparent and 16 unchanged, it is the skin of a living thought and may vary 17 greatly in color and content according to the circumstances 18 and the time in which it is used. 19 U.S. 418, 425 (1918) (internal citation omitted). 20 observation seems pertinent here. 21 in question must significantly depend on the context in 22 which Congress chose to employ it. 23 BMG sees the issue as a simple one. BMG But we should not read Justice Oliver Wendell Holmes once Towne v. Eisner, 245 Holmes s The meaning of the phrase Congress extended the first copyright protection for Page 9 of 42 1 sound recordings in 1971 by creating a right [t]o reproduce 2 and distribute tangible copies of sound recordings. 3 Sound Recording Act of 1971 (the SRA ), Pub. L. 92-140, 85 4 Stat. 391; see also Bonneville Int l Corp. v. Peters, 347 5 F.3d 485, 487-89 (3d Cir. 2003) (detailing the history and 6 evolution of the sound recording copyright). 7 drafted the SRA to address its concern about preventing 8 phonorecord piracy due to advances in duplicating 9 technology. Congress H.R. Rep. No. 104-274, at 11 (1995) 10 (summarizing the history of sound recording copyright). 11 Notably, unlike the copyright of musical works, the sound 12 recording copyright created by the SRA did not include a 13 right of performance. 14 Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 15 336, codified as 17 U.S.C. § 106. 16 sound recording copyrights principally recording companies 17 such as BMG had no right to extract licensing fees from 18 radio stations and other broadcasters of recorded music. 19 The reason for this lack of copyright protection in sound 20 recordings, as the Third Circuit has put it, was that the 21 recording industry and [radio] broadcasters existed in a 22 sort of symbiotic relationship wherein the recording 23 industry recognized that radio airplay was free advertising See Digital Performance Right in Page 10 of Therefore, holders of 42 1 that lured consumers to retail stores where they would 2 purchase recordings. 3 487. 4 relationship has been, and continues to be, more nuanced 5 and occasionally antagonistic. 6 to continued lobbying by the recording industry, Congress 7 and the Copyright Office (the Office ) studied the need for 8 stronger copyright protection for sound recordings for two 9 decades after passage of the SRA. Bonneville Int l Corp., 347 F.3d at As the Bonneville court also noted, however, the Id. at 488 n.3. In response See 141 C ONG. R EC. 10 S11,945-04, 11,949 (daily ed. Aug. 8, 1995) (statement of 11 Sen. Hatch). 12 With the inception and public use of the internet in 13 the early 1990s, the recording industry became concerned 14 that existing copyright law was insufficient to protect the 15 industry from music piracy. 16 Register of Copyrights referred to the internet as the 17 world s biggest copying machine. 18 the Internet: Can the Present Laws and Treaties Protect 19 Music Copyright in Cyberspace?, 8 C URRENTS: I NT L T RADE L. J. 20 31, 32 (1999). 21 internet more dangerous to recording companies than 22 traditional analog copying with a tape recorder was the fact 23 that there is far less degradation of sound quality in a At the time, the United States Stephen Summer, Music on What made copying music transmitted over the Page 11 of 42 1 digital recording than an analog recording. See id. 2 Although data transmission over the internet was slow in 3 1994 it took on average twenty minutes to download one song 4 the recording industry foresaw the internet as a threat to 5 the industry s business model. 6 Industry is Encouraged, S TATES N EWS S ERV., Jul. 24, 1994. 7 an internet user could listen to music broadcast over, or 8 downloaded from, the internet for free, the recording 9 industry worried that the user would stop purchasing music. See Judy Holland, Music If 10 Jason Berman, president of the Recording Industry 11 Association of America (the RIAA ), the lobbying arm of the 12 recording industry, stated in 1994 that without a copyright 13 in a right of performance via internet technology, the 14 industry would be unable to compete in this emerging 15 digital era. 16 L.A. T IMES (Apr. 11, 1994). 17 delivery would siphon off and eventually eliminate the major 18 source of revenue for investing in future recordings and 19 that [o]ver time, this [would] lead to a vast reduction in 20 the production of recorded music. 21 Right in Sound Recording: Hearing on H.R. 1506 Before the H. 22 Comm. on the Judiciary, Subcomm. on Courts & Intellectual 23 Prop., 104th Cong. (1995) (statement of Jason Berman, Jube Shiver, Jr., Digital Double Trouble, Berman warned that digital Page 12 of Digital Performance 42 1 2 President, RIAA). The Commerce Department, which oversees the Copyright 3 Office, recognized that failing to provide more protections 4 to the recording industry would drive the music industry 5 away from using the internet as a medium for legitimate 6 music distribution. 7 Bruce Lehman said, If we don t make it clear you can t 8 transmit a work without the permission of the owner, 9 copyright owners aren t going to use the information highway As then-Assistant Secretary of Commerce 10 . . . . There won t be any cars on the highway if we don t 11 make certain the cars don t get hijacked at the entrance 12 ramp. 13 Information Age, N.Y. T IMES (Jul. 7, 1994) (internal 14 quotation marks omitted). 15 Clinton, an information infrastructure task force chaired by 16 Lehman recommended that Congress give sound recording 17 copyright holders a right of performance. 18 Intellectual Property and the National Information 19 Infrastructure: The Report of the Working Group on 20 Intellectual Property Rights, I NFORMATION I NFRASTRUCTURE T ASK 21 F ORCE 221-25 (1995). Teresa Riordan, Writing Copyright Law For an In a white paper to President Bruce A. Lehman, 22 In light of these concerns, and recognizing that 23 digital transmission of sound recordings [were] likely to Page 13 of 42 1 become a very important outlet for the performance of 2 recorded music, Congress enacted the Digital Performance 3 Right in Sound Recordings Act of 1995 (the DPSR ), giving 4 sound recording copyright holders an exclusive but narrow 5 right to perform play or broadcast sound recordings via 6 a digital audio transmission. 7 13-14. 8 digital audio transmissions through paid subscriptions 9 services and interactive services. H.R. Rep. No. 104-274, at 12, The right was limited to exclusive performance of See 17 U.S.C. § 114(d) 10 (1995). 11 qualified for statutory licensing, interactive services were 12 required to obtain individual licenses for each sound 13 recording those interactive services played via a digital 14 transmission. 15 Music Copyrights, 53 C ASE W. R ES. L. R EV. 673, 692 (2003). 16 Under the DPSR, interactive service was defined as 17 18 19 20 21 22 23 24 25 26 27 28 29 While non-interactive subscription services See Lydia Pallas Loren, Untangling the Web of one that enables a member of the public to receive, on request, a transmission of a particular sound recording chosen by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large does not make a service interactive. If an entity offers both interactive and non-interactive services (either concurrently or at different times), the non-interactive component shall not be treated as part of an interactive service. 17 U.S.C. § 114(j)(4) (1995). Page 14 of 42 1 The House report noted that the DPSR was enacted to 2 address two related concerns. First, without appropriate 3 copyright protection in the digital environment, the 4 creation of new sound recordings and musical works could be 5 discouraged, ultimately denying the public some of the 6 potential benefits of the new digital transmission 7 technologies. 8 certain types of subscription and interaction audio 9 services might adversely affect sales of sound recordings 10 and erode copyright owners ability to control and be paid 11 for use of their work. 12 concern, the House noted that interactive services are most 13 likely to have a significant impact on traditional record 14 sales, and therefore pose the greatest threat to the 15 livelihoods of those whose income depends upon revenues 16 derived from traditional record sales. 17 article has noted, these interactive services were likely to 18 have an impact on record sales because the more advance 19 information the user has about the digital transmission, the 20 more the transmission facilitate[d] a user s private copying 21 (in perfect digital copies) of the recorded performance, or, 22 at least, enable[d] the user to substitute listening to the 23 targeted performance for purchasing a copy of it. H.R. Rep. No. 104-274, at 13. Id. Second, With regard to the latter Page 15 of 42 Id. at 14. As one Jane C. 1 Ginsburg, Copyright Legislation for the Digital 2 Millennium, 23 C OLUM.-VLA J.L. & A RTS 137, 167 (1999) 3 (emphasis added). 4 The House also noted the importance of striking a 5 balance between, on one hand, protecting sound recording 6 copyright holders to promote sales, distribution, and 7 development of new music, and, on the other hand, making 8 development of new media and forms of distribution 9 economically []feasible. H.R. Rep. No. 104-274, at 14. 10 Congress attempted to address this concern by making the 11 right narrow limiting it to performance of digital audio 12 transmissions and exempting nonsubscriber services. 13 The Senate Report noted that it had similar concerns. 14 S. Rep. 104-128, at 13-17 (1995), reprinted in 1995 15 U.S.C.C.A.N. 356, 360-64. 16 See id. See Fairly soon after Congress enacted the DPSR, critics 17 began to call for further legislation, charging that the 18 DPSR was too narrowly drawn and did not sufficiently protect 19 sound recording copyright holders from further internet 20 piracy. 21 also Public Performance of Sound Recordings: Definition of 22 Service, 65 Fed. Reg. 77330, 77,331 (letter of the Copyright 23 Office noting that the digital transmission of sound See Summer, 8 C URRENTS: I NT L T RADE L. J. at 36; see Page 16 of 42 1 recording license was amended in 1998 in response to the 2 rapid growth of digital communications networks, e.g., the 3 Internet, and the confusion surrounding the question of how 4 the DP[S]R[] applied to certain nonsubscription digital 5 audio services ). 6 provide free i.e., nonsubscription services that do not 7 provide particular sound recording on request and are 8 therefore not interactive within the meaning of term under 9 the DPSR, at that time fell outside the sound recording For instance, webcasting services, which 10 copyright holder s right of control. See Ginsburg, 23 11 C OLUM.-VLA J.L. & A RTS at 167. 12 concerned that these webcasting services were allowing users 13 to copy music transmitted to their computer via webcast for 14 free, see Note, June Chung, The Digital Performance Right in 15 Sound Recording Act and Its Failure to Address the Issue of 16 Digital Music s New Form of Distribution, 39 A RIZ. L. R EV. 17 1361, 1367 (1997) (explaining how a webcasting user could 18 record and copy webcasted music onto the user s computer), 19 or to listen to these webcasting services in lieu of 20 purchasing music, see Comment, Kimberly L. Craft, The 21 Webcasting Music Revolution Is Ready to Begin, as Soon as We 22 Figure Out the Copyright Law: The Story of the Music 23 Industry at War with Itself, 24 H ASTINGS C OMM. & E NT. L.J. 1, Recording companies became Page 17 of 42 1 12-13 (2001). Record companies were concerned that these 2 webcasting services were causing a diminution in record 3 sales, which the companies feared would cut into profits and 4 stunt development of the recording industry. 5 H ASTINGS C OMM. & E NT. L.J. at 12-13. 6 Sherman, Senior Executive Vice President and General Counsel 7 of the RIAA, by 1997, the record industry was losing $1 8 million a day due to music piracy. 9 Internet: Hearing on H.R. 2265 Before H. Comm. on the See Craft, 24 According to Cary Copyright Piracy in the 10 Judiciary, Subcomm. on Courts & Intellectual Prop., 105th 11 Cong. (1997) (statement of Cary H. Sherman, Senior Executive 12 Vice President and General Counsel of the RIAA). 13 In light of these concerns, Congress enacted the 14 current version of § 114 under the DMCA in 1998. 15 interactive service was expanded to include those that 16 are specially created for a particular individual. 17 Rep. No. 105-796, at 87 (1998) (Conf. Rep.). 18 the definition of interactive service was now a service 19 that enables a member of the public to receive a 20 transmission of a program specially created for the 21 recipient, or on request, a transmission of a particular 22 sound recording, whether or not as part of a program, which 23 is selected by or on behalf of the recipient. Page 18 of 42 The term H.R. As enacted, 17 U.S.C. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 § 114(j)(7). According to the House conference report, The conferees intend that the phrase program specially created for the recipient be interpreted reasonably in light of the remainder of the definition of interactive service. For example, a service would be interactive if it allowed a small number of individuals to request that sound recordings be performed in a program specially created for that group and not available to any individuals outside of that group. In contrast, a service would not be interactive if it merely transmitted to a large number of recipients of the service s transmissions a program consisting of sound recordings requested by a small number of those listeners. H.R. Rep. No. 105-796, at 87-88 (Conf. Rep.). The House report continued that a transmission is 21 considered interactive if a transmission recipient is 22 permitted to select particular sound recordings in a 23 prerecorded or predetermined program. 24 example, if a transmission recipient has the ability to move 25 forward and backward between songs in a program, the 26 transmission is interactive. 27 transmission recipient be able to select the actual songs 28 that comprise the program. 29 Id. at 88. For It is not necessary that the Id. On April 17, 2000, the Digital Media Association 30 ( DiMA ), the lobbying arm of transmitters of digital media 31 such as Launch, filed a petition with the Copyright Office Page 19 of 42 1 requesting that the Office amend the definition of service 2 to state that a service is not interactive simply because 3 it offers the consumer some degree of influence over the 4 programming offered by the webcaster. 5 Copyright Office to adopt the following as a rule: DiMA asked the 6 7 8 9 10 11 12 13 14 15 The DiMA did not ask the Copyright Office to determine 16 whether any particular services was non-interactive. 17 A Service making transmissions that otherwise meet the requirements for the section 114(f) statutory license is not rendered interactive, and thus ineligible for the statutory license, simply because the consumer may express preferences to such Service as to the musical genres, artists and sound recordings that may be incorporated into the Service s music programming to the public. On November 21, 2000, the Copyright Office issued a 18 letter stating that because of the rapidly changing 19 business models emerging in today s digital marketplace, no 20 rule can accurately draw the line demarcating the limits 21 between an interactive service and a noninteractive service. 22 Nor can one readily classify an entity which makes 23 transmissions as exclusively interactive or noninteractive. 24 The Copyright Office stated that determinations of 25 interactivity must be made on a case-by-case basis after 26 the development of a full evidentiary record. 27 28 Despite refusing to make a broad rule governing interactivity, the Copyright Office did opine that in Page 20 of 42 1 enacting the § 114(j)(7), Congress sought to identify a 2 service as interactive according to the amount of influence 3 a member of the public would have on the selection and 4 performance of a particular sound recording. 5 Office stated that the fact that some degree of consumer 6 influence on a service s programming is permissible does not 7 mean that a regulation to clarify that fact is necessary or 8 even desirable. 9 because the law and the accompanying legislative history However, the The Copyright Office also noted that 10 make it clear that consumers can have some influence on the 11 offerings made by a service without making the service 12 interactive, there is no need to amend the regulations to 13 make this point. 14 In a footnote, the Copyright Office noted that the RIAA 15 and DiMA had discussed LAUNCHcast to illustrate the type of 16 offerings that are in dispute. 17 concluded that [f]rom these descriptions, there is 18 considerable doubt whether [LAUNCHcast] would qualify as an 19 interactive service. 20 Office posted a message on its website that there had been a 21 typographical error in its letter. 22 letter with identical substantive language, but altered the 23 footnote to read: From these descriptions, there is The Copyright Office On December 8, 2000, the Copyright Page 21 of It then reissued its 42 1 considerable doubt whether [LAUNCHcast] would qualify as a 2 noninteractive service. 3 letter, however, the Copyright Office again altered the 4 footnote to read as it had read in the November 21, 2000 5 letter noting that there was considerable doubt that 6 LAUNCHcast was interactive. 6 7 Recordings, 65 Fed. Reg. at 77332. In the published version of the Public Performance of Sound 8 In sum, from the SRA to the DMCA, Congress enacted 9 copyright legislation directed at preventing the diminution 10 in record sales through outright piracy of music or new 11 digital media that offered listeners the ability to select 12 music in such a way that they would forego purchasing 13 records. 14 15 Armed with the statute s text and context, we must examine the complex nature of the service LAUNCHcast 6 In a memorandum from Kenneth L. Steinthal, attorney for Launch, admitted into evidence at trial, Steinthal stated that he spoke with the individual in the Copyright Office who drafted the footnote. Steinthal stated that according to that individual, someone from the RIAA had called the Copyright Office and as a result, the substance of the footnote was changed. According to Steinthal, the individual told him that the footnote had been intended to send a message . . . that . . . it would be a long shot for a service such as Launchcast . . . to be considered noninteractive. Whatever the etiology of the Copyright Office s inability to make up its mind, we find the Copyright Office efforts here of little help. Page 22 of 42 1 provided. 7 2 have expressed little disagreement as to how LAUNCHcast 3 operates, however, the conclusions they reach as to whether 4 the statute applies to LAUNCHcast are, not surprisingly, 5 radically different. 8 6 Throughout the life of this case, the parties After creating a username and password, and entering 7 basic information and preferences unrelated to the music 8 LAUNCHcast provides, a LAUNCHcast user is able to create and 9 modify personalized radio stations. First, the user is 10 prompted to select artists whose music the user prefers. 11 The user is then asked which music genres the user enjoys 12 and asked to rate the genres on a scale. 13 asked the percentage of new music songs the user has not 14 previously rated the user would like to incorporate into 15 the user s station (the unrated quota ) 9 and whether the The user is also 7 For the following analysis of LAUNCHcast s service we rely on Plaintiffs Exhibits 260 and 262, in which Boulter describes how LAUNCHcast operated, as well as the report submitted by Johnson offering essentially the same analysis. 8 Federal judges are appointed for life. U.S. C ONST. art. III, § 1. Our familiarity with the ever-changing terms and technology of the digital age is, to say the least, varied. We have attempted to portray the processes and procedures of LAUNCHcast in lay terms, understandable to ourselves and the public. 9 LAUNCHcast disregards the unrated quota selected by the user if the number of rated songs LAUNCHcast uses to generate a playlist for the user is less than 100. This is Page 23 of 42 1 user permits playing songs with profane lyrics. 2 unrated quota is 20%, meaning no less than 20% of the songs 3 played can be unrated. 4 The minimum Once LAUNCHcast begins playing music based on the 5 user s preferred artists and genres, the user rates the 6 songs, artists, or albums LAUNCHcast plays between zero and 7 100, with 100 being the best rating. 8 are hyperlinks termed history, share, and buy. 9 history hyperlink allows the user to see a list of the songs Below the rating field The 10 previously played, and the buy hyperlink facilitates the 11 user s purchase of the songs. 12 the user to share the station with other users. 13 feature facilitates the subscription of one user to 14 another user s station. 15 station of user B, user B becomes a DJ for user A. 16 feature of LAUNCHcast does not allow a user to play 17 particular songs for other users, but instead gives users 18 access to each other s stations, which they can modify by 19 rating songs, artists, or albums. 20 affect what songs the user hears on the DJ s station and do 21 not affect the songs the DJ hears on the DJ s station, nor 22 do the modifications affect the DJ s personal modification The share hyperlink allows This When user A subscribes to the These modifications only detailed further infra. Page 24 of The DJ 42 1 of the DJ s station. 2 the ability to pause the song, skip the song, or delete the 3 song from the station by rating the song zero. 4 user may not go back to restart the song that is playing, or 5 repeat any of the previously played songs in the playlist. 6 While a song is playing, the user has Notably, the Whenever the user logs into LAUNCHcast and selects a 7 station, LAUNCHcast generates a playlist of fifty songs 8 based on several variables. 10 9 list of the pool of songs or of the songs in the generated 10 playlist, and therefore, the user does not know what songs 11 might be played. 12 looking to the unrated quota and whether to exclude songs 13 with profane lyrics or songs that cannot be transmitted over 14 the user s bandwidth. 15 the potential songs that can be put in the playlist (called 16 a hashtable ). 17 songs played for the user within the last thirty days, a 18 list of all DJs, genres, and radio stations to which the 19 user subscribes, and a list of all the ratings of all the LAUNCHcast does not provide a LAUNCHcast selects the songs by first Next LAUNCHcast creates a list of all LAUNCHcast then generates a list of all 10 If there are more than eight songs left unheard on the playlist previously begun by the user during the last session, the playlist is less than a week old, and fewer than fifteen songs of the playlist that have been played have been rated by the user for the first time, then LAUNCHcast will begin the old playlist from the first unheard song. Page 25 of 42 1 songs, artists, and albums rated by either the user or any 2 DJ to which the user subscribes. 11 3 rated are explicitly rated songs. 4 rates songs that appear in an album that the user or a 5 subscribed-to DJ has rated and songs that appear in the same 6 album as another song the user has already rated. 12 7 these songs are initially added to the hashtable. 8 LAUNCHcast then excludes: (1) all songs that the user, or a 9 DJ to which the user subscribes, requests be skipped Songs that the user has LAUNCHcast implicitly All of 10 permanently (rated as zero) and (2) songs played within the 11 last three hours for the user on any LAUNCHcast station. 12 This yields approximately 4,000 songs. 13 LAUNCHcast then adds to the hashtable the 1,000 most 14 popular songs songs most highly rated by all LAUNCHcast 15 users in the bandwidth specified by the user, provided 11 Ratings for individual songs are modified based on the ratings the user (or the DJ to which the user subscribes) has given the artist performing the song or the album on which the song appears. The scope of the modification is irrelevant for purposes of this opinion. 12 In other words, if the user rates the band U2 or U2 s album The Joshua Tree, then U2 s song With or Without You on the album will be implicitly rated. Likewise, if the user rates Gordon Lightfoot s song Rainy Day People but does not rate Lightfoot s iconic song Canadian Railroad Trilogy found on a different album Rainy Day People will be explicitly rated while Canadian Railroad Trilogy will be implicitly rated. Page 26 of 42 1 those songs are not already on the hashtable. LAUNCHcast 2 then adds another 5,000 songs. 3 songs, LAUNCHcast first counts the total number of songs 4 contained in each of all the genres the user has selected 5 and divides that number by the total number of songs in 6 LAUNCHcast s database. 7 than 5% of the number of songs in LAUNCHcast s database then 8 LAUNCHcast picks only songs listed as within the genres the 9 user has selected. 13 To generate this group of If the resulting quotient is less This calculation is performed in order 10 to ensure that of the 5,000 random songs added to the 11 hashtable, a sufficiently large number are of genres 12 eligible to be selected for inclusion on the final playlist. 13 That means that when a user has selected a very small number 14 of genres, the selection of songs of those genres from the 15 hashtable would return only a few songs allowable for play. 16 If the quotient of total songs in the user s selected 17 genres is greater than 5%, however, a sufficiently large 18 number of the 5,000 randomly chosen songs added to the 13 For example, if the user selects five genres and LAUNCHcast has 1,000 songs listed under each of those genres, with no songs being counted twice for being in multiple genres, and 150,000 songs in its database (the total number of songs in LAUNCHcast s database at that time according to Boulter), then the total number of songs in a selected genre is 5,000. Because 5,000 is 3.3% of 150,000, LAUNCHcast would choose the 5,000 songs from this pool. Page 27 of 42 1 hashtable will be eligible for inclusion on the final 2 playlist such that limiting the selection of playlist songs 3 by genre will not perceptively decrease the randomness of 4 the songs actually played; therefore, LAUNCHcast picks the 5 5,000 songs randomly from its entire database, rather than 6 solely from the user s selected genres. 7 At this point, the hashtable contains approximately 8 10,000 songs. All of the songs in the hashtable are then 9 sorted according to rating: (1) explicitly rated; (2) 10 implicitly rated; or (3) unrated. Based on these 11 categories, LAUNCHcast determines which songs will be played 12 from each category based on several criteria. 13 user s list of explicitly and implicitly rated songs is 14 smaller than 100, 90% of the songs LAUNCHcast selects for 15 the playlist are unrated. 16 and implicitly rated songs is greater than 100, LAUNCHcast 17 uses the unrated quota provided by the user the minimum 18 unrated quota the user can choose being 20%. 14 First, if the If the user s list of explicitly 14 Second, no The record is unclear whether the unrated quota if not selected by the user was fixed at 50% or 20%. See Plaintiffs Exhibits 260, 447. However, for our purposes the dispute is irrelevant because in determining whether LAUNCHcast is an interactive service we consider the particular aspect of LAUNCHcast that is the most interactive, or in other words, the aspect that provides the user with the greatest possible amount of influence on the outcome of the LAUNCHcast playlist. Therefore, we assume a Page 28 of 42 1 more than 20% of all explicitly rated songs are selected 2 from the hashtable for the playlist. 3 user has only rated ten songs, no more than two of those 4 songs can be selected for the playlist. 5 selects no more than three times the quotient of the total 6 number of explicitly rated songs divided by the sum of 7 implicitly and explicitly rated songs. 8 user rates five songs and ten others are implicitly rated 9 making a total of fifteen songs then no more than one In other words, if a Third, LAUNCHcast In other words, if a 10 explicitly rated song can be selected (3 x (5/[5+10]) = 3 x 11 1/3 = 1). 12 of a DJ and the total number of explicitly and implicitly 13 rated songs is greater than 200, then the total number of 14 explicit songs LAUNCHcast selects will be the lesser of 20% 15 of all explicit songs or half of the songs to be selected in 16 the playlist. 17 explicitly rated 150 songs and as a result has fifty-one 18 implicitly rated songs (totaling 201), selects the station 19 of a DJ, twenty-five explicitly rated songs will be selected 20 for the playlist from the DJ s station because half of the Fourth, if the user is listening to the station In other words, if the user, who has user has a 20% unrated quota. Page 29 of 42 1 songs in the playlist of fifty 15 (twenty-five) is less than 2 20% of the number of explicitly rated song (20% of 150 = 3 30). 4 Next, after determining what songs can be selected from 5 the hashtable, LAUNCHcast picks songs from the hashtable to 6 add to the playlist. 7 song at random from one of the three categories, explicitly 8 rated, implicitly rated, or unrated, but with some 9 restrictions. To do this, LAUNCHcast first selects a First, songs are excluded from the playlist 10 if including them would violate the criteria listed above. 11 Second, LAUNCHcast does not play the same song twice in a 12 playlist. 13 if three other songs by that artist have already been 14 selected for the playlist. 15 Here Comes the Sun, A Day in the Life, and Eleanor 16 Rigby have already been selected for the playlist, no other 17 Beatles song could be added to the playlist. 18 LAUNCHcast excludes a song from a playlist if two other 19 songs from the same album have already been selected for the Third, LAUNCHcast excludes a song from a playlist In other words, if the Beatles 15 Fourth, For purposes of describing how LAUNCHcast functions, Boulter [a]ssume[s] the size of a playlist is 50 songs. We also assume this. Page 30 of 42 1 playlist. 16 2 prevent songs by the same artist or from the same album from 3 playing on the playlist. 4 selection for the playlist is by an artist already included 5 in the playlist or from the same album as the previous song 6 selected for the playlist, that song is excluded from the 7 playlist unless at the end of the process a user has a 8 playlist with less than 50 songs. 9 random, according to Boulter the algorithm used to select Fifth, LAUNCHcast has an additional layer to If a song being reviewed for Although selection is 10 songs for the playlist [is] biased towards the top of the 11 list i.e., choosing more highly rated songs but would 12 pick randomly from there. 13 No. 2 and then it picked 37. Then maybe it picked one and 14 then it picked 300. 15 random song from that particular list of songs is chosen . . 16 . such that there is a high probability that the song is 17 picked from the higher scored songs in the list. 18 So maybe the first time it picked In her report, Johnson stated that a Finally, once all fifty songs are selected for the 19 playlist, LAUNCHcast orders the playlist. 20 the songs is random, provided LAUNCHcast does not play more 21 than two songs in the same album or three songs by the same 16 The ordering of This could occur independent of the second rule if the album is a compilation of multiple artists. Page 31 of 42 1 2 artist consecutively. 17 It is hard to think of a more complicated way to 3 select songs, but this is the nature of webcast music 4 broadcasting in the digital age. 5 we turn to the question of whether LAUNCHcast is an 6 interactive service as a matter of law. 18 7 noted, a webcasting service such as LAUNCHcast is 8 interactive under the statute if a user can either (1) 9 request and have played a particular sound recording, or 10 (2) receive a transmission of a program specially created 11 for the user. 12 cannot request and expect to hear a particular song on 13 demand; therefore, LAUNCHcast does not meet the first Given LAUNCHcast s format, 42 U.S.C. § 114(j)(7). As we have already A LAUNCHCAST user 17 This brings LAUNCHcast into compliance with the sound recording performance complement, which limits webcasters to playing no more than three selections from a given record in a three-hour period. 17 U.S.C. § 114(d)(2)(C)(i), (j)(13). 18 While we have on other occasions noted that administrative agencies have broad discretion to interpret the statutes they are charged with implementing, Khan v. U.S. Dep t of Justice, 494 F.3d 255, 258 (2d Cir. 2007), we will not give weight to the Copyright Office s footnote regarding LAUNCHcast in its December 2000 letter. Notwithstanding the fact that the footnote specifically discusses LAUNCHcast, the footnote is surplusage to the issue before the Office, and the history of its revisions complete reversals of opinion by the Copyright Office over a matter of days seriously call into question the thought process, if any, that went into drafting the footnote. Page 32 of 42 1 definition of interactive. 2 liable if it enables the user to receive a transmission of a 3 program specially created for the user. 4 surprise to us that the district court, the parties, and 5 others have struggled with what Congress meant by this term. 6 But LAUNCHcast may still be It comes as no The language and development of the DPSR and DMCA make 7 clear that Congress enacted both statutes to create a narrow 8 copyright in the performance of digital audio transmissions 9 to protect sound recording copyright holders principally 10 recording companies from the diminution in record sales. 11 Congress created this narrow right to ensure that the 12 creation of new sound recordings and musical works [would 13 not] be discouraged, and to prevent the threat to the 14 livelihoods of those whose income depends upon revenues 15 derived from traditional record sales. 16 274, at 13-14. H.R. Rep. No. 104- 17 Contrary to BMG s contentions, Congress was clear that 18 the statute sought to prevent further decreases in revenues 19 for sound recording copyright holders due to significant 20 reductions in record sales, perceived in turn to be a result 21 of the proliferation of interactive listening services. 19 19 If While file-sharing services like Napster initially caused a decline in records sales, see Anita Hamilton, The Pirates of Prime Time, T IME, Feb. 25, 2002, at 54 (noting Page 33 of 42 1 the user has sufficient control over the interactive service 2 such that she can predict the songs she will hear, much as 3 she would if she owned the music herself and could play each 4 song at will, she would have no need to purchase the music 5 she wishes to hear. 6 concern about a diminution in record sales is the concern 7 that an interactive service provides a degree of 8 predictability based on choices made by the user that 9 approximates the predictability the music listener seeks when 10 11 Therefore, part and parcel of the purchasing music. The current version § 114(j)(7) was enacted because 12 Congress determined that the DPSR was not up to the task of 13 protecting sound recording copyright holders from diminution that in 2001 CD sales declined for the first time in a decade), recently webcasting services have been credited with becom[ing] a massive driver in digital [music] sales by exposing users to new music and providing an easy link to sites where users can purchase this music. Jeb Gottlieb, Pandora Lifts Lid on Personalizing Online Radio, B OSTON H ERALD, Feb. 26, 2008, at 32; see also SoundExchange Open to Bill Targeting Small Webcasters, C OMMC NS D AILY, May 3, 2007 (noting that independent musician Mike Holden enjoyed a huge increase in iTunes downloads . . . when Pandora[, another webcasting service,] added his music ). The difference between the two types of services likely explains the different effect on record sales. File-sharing services allow users to copy music files to their computer, thereby enabling the user to listen to the music any time. Webcasting services, however, do not allow the user to download files of the music being webcast, and therefore, do not enable music piracy. Page 34 of 42 1 in record sales, presumably because programs not covered by 2 the DPSR s definition of interactive service provided a 3 degree of control predictability to internet music 4 listeners that dampened the music listeners need to purchase 5 music recordings. 6 holders the right to require individual licenses for 7 transmissions of programs specially created for users, 8 Congress hoped to plug the loophole the DPSR had left open 9 for webcasting services. By giving sound recording copyright 10 To determine what additional service or program Congress 11 intended to include as an interactive service under the DMCA, 12 we look to what language was added to the definition of 13 interactive service. 14 definition, which was later included under the DMCA, is 15 transmission of a program. 16 not semantically identical, Title 17 defines transmission 17 program as a body of material that, as an aggregate, has 18 been produced for the sole purpose of transmission to the 19 public in sequence and as a unit. 20 definition views a transmission program as a body of material 21 presented as a single unit, as opposed to a selection of 22 individual works. 23 interactive service to include the transmission of programs One term notably absent from the DPSR 17 U.S.C. § 114(j)(7). 17 U.S.C. § 101. While This Therefore, in expanding the definition of Page 35 of 42 1 specially created for the user, Congress intended to include 2 bodies of pre-packaged material, such as groups of songs or 3 playlists specially created for the user. 4 definition, we turn to the ultimate issue of whether the 5 LAUNCHcast playlists, uniquely generated for the user each 6 time the user selects a station, are specially created and 7 therefore interactive. 8 9 Given this Launch does not deny that each playlist generated when a LAUNCHcast user selects a radio station is unique to that 10 user at that particular time. However, this does not 11 necessarily make the LAUNCHcast playlist specially created 12 for the user. 20 13 functions, it is clear that LAUNCHcast does not provide a 14 specially created program within the meaning of § 114(j)(7) 15 because the webcasting service does not provide sufficient 16 control to users such that playlists are so predictable that 17 users will choose to listen to the webcast in lieu of 18 purchasing music, thereby in the aggregate diminishing Based on a review of how LAUNCHcast 20 While we decline to give weight to the Copyright Office s analysis in its November and December 2000 letters, it is worth noting that in these letters the Office found that the RIAA readily acknowledges that consumers may express preferences for certain music genres, artists, or even sound recordings without the service necessarily becoming interactive. Page 36 of 42 1 2 record sales. 21 First, the rules governing what songs are pooled in the 3 hashtable ensure that the user has almost no ability to 4 choose, let alone predict, which specific songs will be 5 pooled in anticipation for selection to the playlist. 6 least 60% of the songs in the hashtable are generated by 7 factors almost entirely beyond the user s control. 8 playlist a total of fifty songs is created from a pool of 9 approximately 10,000 songs, at least 6,000 of which (1,000 of At The 10 the most highly rated LAUNCHcast songs among all users and 11 5,000 randomly selected songs) are selected without any 12 consideration for the user s song, artist, or album 13 preferences. 22 The user has control over the genre of songs 21 In its brief, BMG offers evidence of Launch describing LAUNCHcast as interactive in its marketing literature. But our task is to determine whether LAUNCHcast was an interactive service as that term is defined in the statute and not how it was marketed to the public. 22 This assumes that the word specially implies that the program was made by taking some of the user s preferences into consideration. We cannot conclude that a specially created program could include a playlist of completely random songs selected without regard for the user s preferences. First, such a result would make no sense because a unique playlist of random songs would be little different from a radio station streamed over the internet which at least one Circuit has held only requires that a broadcaster pay a statutory and not an individual license. See Bonneville Int l Corp., 347 F.3d at 487. Second, such a random webcast should have no effect on record sales, and therefore imposing an individual licensing Page 37 of 42 1 to be played for 5,000 songs, but this degree of control is 2 no different from a traditional radio listener expressing a 3 preference for a country music station over a classic rock 4 station. 5 prevent the user from limiting the number of songs in the 6 list eligible for play by selecting a narrow genre. 7 more than 20% of the songs the user rates marked by 8 LAUNCHcast as explicitly rated can be pooled in the 9 hashtable, and no more than three times the number of LAUNCHcast generates this list with safeguards to Also, no 10 explicitly rated songs divided by the total number of rated 11 songs can be in the hashtable. 12 number of explicitly rated songs will eventually be selected 13 for the playlist. 14 the more songs the user explicitly rates, the less the user 15 can predict which explicitly rated songs will be pooled in 16 the hashtable and played on the playlist. This ensures that a limited Ironically, this effectively means that 17 Second, the selection of songs from the hashtable to be 18 included in the playlist is governed by rules preventing the requirement for songs played on a random playlist would be inconsistent with the congressional purpose of combating diminutions in records sales. In its letters of November and December 2000, the Copyright Office noted that the RIAA acknowledge[d] that all music programming services[, including webcasting services,] are likely to be influenced by their consumers tastes. Page 38 of 42 1 user s explicitly rated songs from being anywhere near a 2 majority of the songs on the playlist. 3 the songs played on the station are unrated meaning the 4 user has never expressed a preference for those songs. 5 the user attempts to increase her chances of hearing a 6 particular song by rating only a small number of songs 7 making the user s list of explicitly and implicitly rated 8 songs smaller than 100 90% of the songs LAUNCHcast selects 9 for the playlist will be unrated, flooding the playlist with 10 11 At minimum, 20% of If songs for which the user has never expressed a preference. Even the ways in which songs are rated include variables 12 beyond the user s control. For instance, the ratings by all 13 of the user s subscribed-to DJs are included in the playlist 14 selection process. 15 LAUNCHcast then implicitly rates all other songs by that 16 artist, subjecting the user to many songs the user may have 17 never heard or does not even like. 23 18 placed on the number of times songs by a particular artist or 19 from a particular album can be played, and there are 20 restrictions on consecutive play of the same artist or album. 21 Finally, because each playlist is unique to each user each When the user rates a particular song, There are restrictions 23 It would be wrong, for instance, to assume that because a user likes the Beatles album A Hard Day s Night the user would also like The White Album. Page 39 of 42 1 time the user logs in, a user cannot listen to the playlist 2 of another user and anticipate the songs to be played from 3 that playlist, even if the user has selected the same 4 preferences and rated all songs, artists, and albums 5 identically as the other user. 6 song she likes and wants to hear again cannot do so by 7 logging off and back on to reset her station to disable the 8 restriction against playing the same song twice on a 9 playlist. Relatedly, a user who hears a Even if a user logs off LAUNCHcast then logs back 10 on and selects the same station, the user will still hear the 11 remainder of the playlist to which she had previously been 12 listening with its restrictions still in operation, provided 13 there were at least eight songs left to be played on the 14 playlist or, in other words, until the user listens to at 15 least forty-two of the playlist s songs. 16 Finally, after navigating these criteria to pool a 17 hashtable and generate a playlist, LAUNCHcast randomly orders 18 the playlist. 19 on the consecutive play of artists or albums, which further 20 restricts the user s ability to choose the artists or albums 21 they wish to hear. 22 to view the unplayed songs in the playlist, ensuring that a 23 user cannot sift through a playlist to choose the songs the This randomization is limited by restrictions LAUNCHcast also does not enable the user Page 40 of 42 1 2 user wishes to hear. It appears the only thing a user can predict with 3 certainty the only thing the user can control is that by 4 rating a song at zero the user will not hear that song on 5 that station again. 6 particular song is certainly not a violation of a copyright 7 holder s right to be compensated when the sound recording is 8 played. 24 But the ability not to listen to a 9 In short, to the degree that LAUNCHcast s playlists are 10 uniquely created for each user, that feature does not ensure 11 predictability. 12 helps Launch ensure that it does not provide a service so 13 specially created for the user that the user ceases to 14 purchase music. 15 limited predictability that once graced the AM airwaves on 16 weekends in America when special requests represented love- 17 struck adolescents attempts to communicate their feelings to Indeed, the unique nature of the playlist LAUNCHcast listeners do not even enjoy the 24 The hyperlink in LAUNCHcast giving users the option to buy the music being played also cuts against the contention that LAUNCHcast s service diminishes record sales, as does the option to view a list of previously played songs, which would give the user a reference for selecting songs to purchase. See Music and Radio: Hearing before S. Jud. Comm., 110th Cong. (2008) (statement of Joe Kennedy, President and Chief Executive Officer Pandora Media, Inc.) (claiming that Pandora [is] . . . among the top promotional partners of iTunes and Amazon.com for music). Page 41 of 42 1 that special friend. 2 falls within the scope of the DMCA s definition of an 3 interactive service created for individual users. 4 Therefore, we cannot say LAUNCHcast When Congress created the sound recording copyright, it 5 explicitly characterized it as narrow. There is no general 6 right of performance in the sound recording copyright. 7 is only a limited right to performance of digital audio 8 transmission with several exceptions to the copyright, 9 including the one at issue in this case. There We find that 10 LAUNCHcast is not an interactive service within the meaning 11 of 17 U.S.C. § 114(j)(7). 12 not reach the other issues raised by BMG on appeal. 13 14 15 Because we so conclude, we need Conclusion The district court s judgment of May 16, 2007 in favor of Appellee is hereby AFFIRMED with costs. Page 42 of 42

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