Definition Edit

U.S. copyright law Edit

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 ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive, if the programming on each channel of the service does not substantially consist of sound recordings that are performed within 1 hour of the request or at a time designated by either the transmitting entity or the individual making such request. If an entity offers both interactive and noninteractive services (either concurrently or at different times), the noninteractive component shall not be treated as part of an interactive service."[1]

Overview Edit

As stated in Arista Records, LLC v. Launch Media, Inc.[2]

The statute provides little guidance as to the meaning of its operative term "specially created." According to Merriam-Webster's Collegiate Dictionary, "specially" means: (1) "in a special manner"; (2) "for a special purpose"; (3) "in particular" or "specifically"; or (4) "especially." Create, the root of "created," means: (1) "to bring into existence"; (2) "to produce"; (3) to "cause" or "occasion"; or (4) to "design."

These definitions indicate that a "specially created" program is a program produced or designed specifically for the user — not much help defining the terms of the statute in this case.[3]

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.[4]

The House report continued that a transmission is considered interactive "if a transmission recipient is permitted to select particular sound recordings in a prerecorded or predetermined program."[5] "For example, if a transmission recipient has the ability to move forward and backward between songs in a program, the transmission is interactive. It is not necessary that the transmission recipient be able to select the actual songs that comprise the program."[6]

U.S. Copyright Office interpretation Edit

On November 21, 2000, the Copyright Office issued a letter stating that because "of the rapidly changing business models emerging in today's digital marketplace, no rule can accurately draw the line demarcating the limits between an interactive service and a noninteractive service. Nor can one readily classify an entity which makes transmissions as exclusively interactive or noninteractive." The U.S. Copyright Office stated that determinations of interactivity "must be made on a case-by-case basis after the development of a full evidentiary record."

References Edit

  1. 17 U.S.C. §114(j)(7).
  2. 2009 WL 2568733 (2d Cir. Aug. 21, 2009).
  3. Id.
  4. H.R. Rep. No. 105-796, at 87-88 (Conf. Rep.).
  5. Id. at 88.
  6. Id.

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