were included in the playlist selection process. When the user rated a particular song,
LAUNCHcast then implicitly rated all other songs by that artist, subjecting the user to many
songs the user may have never heard or did not even like. In addition, a user who heard a song
she liked and wanted to hear again could not do so by logging off and back on to reset the station
to disable the restriction against playing the same song twice on a playlist. Even if the user
logged off then back on and selected the same station, the user would still hear the remainder of
the playlist to which she had previously been listening with its restrictions still in operation, at
least until the user had listened to at least 42 of the playlist’s songs. LAUNCHcast also did not
enable the user to view the unplayed songs in the playlist, ensuring that a user could not sift
through a playlist to choose the songs the user wished to hear. In short, the only thing a user
could control was to ensure not hearing a particular song on a particular station again by rating it
zero. But the court noted that the ability not to listen to a particular song was not a violation of a
copyright holder’s right to be compensated when the sound recording was played.^3251
Accordingly, the court ruled that, as a matter of law, the LAUNCHcast service was not an
interactive service.^3252
- The Reproduction Right – Mechanical Licenses and
Streaming/Downloading
An area of great controversy has been whether streaming implicates the reproduction
right of the copyright holder at all and, if so, whether the compulsory mechanical license of
Section 115 of the copyright statute applies to streaming. As discussed in Sections I.A.1 and
I.A.2 above, the right of reproduction is potentially implicated when a work is streamed over the
Internet because interim whole or partial copies of the work are made in various RAM memories
in the course of transmission of the work. Entities that conduct streaming have sought to avoid
having to pay a separate royalty under the right of reproduction based on such interim copies, in
addition to a public performance royalty. In addition, controversy has arisen over what royalty
rates should apply to copies made in the course of limited downloads, as opposed to full
downloads.
Section 115(a) of the copyright statute provides for a compulsory license (referred to in
the industry as a “mechanical license”) to make copies of a nondramatic musical work as
embodied in phonorecords or digital phonorecord deliveries (“DPDs”), provided that
phonorecords of the musical work have been distributed to the public in the U.S. under authority
of the copyright owner. Section 115(d) defines a “digital phonorecord delivery” to mean
each individual delivery of a phonorecord by digital transmission of a sound recording
which results in a specifically identifiable reproduction by or for any transmission
recipient of a phonorecord of that sound recording, regardless of whether the digital
transmission is also a public performance of the sound recording or any nondramatic
musical work embodied therein. A digital phonorecord delivery does not result from a
real-time, non-interactive subscription transmission of a sound recording where no(^3251) Id. at 163-64.
(^3252) Id. at 150.