[2] If the webcasting service is an interactive service, Launch would be required to pay individual licensing fees to BMG's sound recording copyright holders; otherwise, Launch only need to pay "a statutory licensing fee set by the Copyright Royalty Board."

The United States Court of Appeals for the Second Circuit affirmed the trial court's judgment and ruled in favor of Launch, finding that the webcasting service provided by Launch does not fall within the scope of the definition of an interactive service as a matter of law.

§ 114, by providing an interactive service and therefore willfully infringing sound recording copyrights of BMG from November 1999 to May 2001.

[1] "Based on a review of how LAUNCHcast functions, it is clear that LAUNCHcast does not provide a specially created program within the meaning of § 114(j)(7) because the webcasting service does not provide sufficient control to users such that playlists are so predictable that users will choose to listen to the webcast in lieu of purchasing music, thereby - in the aggregate - diminishing record sales.

[5][6] "In short, to the degree that LAUNCHcast's playlists are uniquely created for each user, that feature does not ensure predictability.

Therefore, "[the court] cannot say LAUNCHcast falls within the scope of the DMCA's definition of an interactive service created for individual users.