In a case before the United States District Court for the Southern District of New York, plaintiffs, major recording industry members including BMG Music, Virgin Records, Sony Music Entertainment, and UMG Recordings, among others, sued the Internet music company Launch Media, Inc. (“Launch Media”), alleging that Launch Media’s customized music services were not entitled to a license because they are "interactive" within the meaning of the Digital Millennium Copyright Act of 1998.The dispute concerned Launch Media’s “LAUNCHcast” music service, which enables users to listen to radio broadcasts and create customized music play lists using the service’s computer software.
The plaintiffs filed motions for summary judgment on the issues of interactivity and willful infringement, pursuant to language in the Copyright Act, which provides:
“An "interactive service" is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or, on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient.”
The Court explained that this was a case of first impression for the term “interactive,” noting that it has not been “definitively construed by the courts,” and considered arguments by the parties on a variety of “semantic and factual” issues, such as the statutory meaning of “specially created for the recipient,” the operations of the LAUNCHcast product, and the point at which the level of interaction between a user and an Internet service satisfies statutory “interactivity” criteria.
The Court found that the question of whether LAUNCHcast constituted “interactivity” under the DMCA was a genuine issue of material fact and denied summary judgment.
The Court also denied summary judgment as to the willful infringement claim, finding issues of material fact in Launch Media’s assertions “that it acted in good faith, on advice of counsel, and in a climate of unsettled law.”