is the recently launched online music service that caught the attention of the
music industry, music-loving consumers and digital media commentators. The service enables users to become DJs in a
virtual music club divided into multiple rooms, each with enough space for five
DJs and an audience of listeners. The
DJs take turns playing songs to the entire room, pulling from a wide catalog
that Turntable.fm licenses through MediaNet.
Users then interact with each other, rating the last song played and
discussing the music in an in-room chat.
In theory, this interaction guides the flow of the other DJs and helps
to shape future music played in the room. As unique as the service is though,
it appears that many of its features were designed and implemented to enable
Turntable.fm to operate as a "non-interactive" service under the
Digital Millennium Copyright Act ("DMCA"), similar to an internet
radio station, thus avoiding the need for direct licenses from the music
labels. For Turntable.fm, the distinction
could mean the difference between sustaining a viable business or joining a
long line of digital music services that were unable to survive because of the
burden of paying license fees to the labels.
While it is too early to determine if this strategy will be challenged
and/or whether it will ultimately prevail, Turntable.fm's service clearly
raises some unique legal issues. To qualify as a "noninteractive"
service under the DMCA, a service's programming cannot be "specially created for the [user]" and cannot "substantially" consist ofuser-requested songs if those requests are filled within one hour of being made. On first blush, it would appear
that Turntable.fm would have a difficult time meeting these criteria. After all, one of the core features of the
service is the users' ability to select songs to be played in whatever room the
user is visiting, essentially enabling users to be DJs in a virtual music club.
However, Turntable.fm has devised various rules for the service that appear to
be tailored directly to address other provisions of the DMCA which determine
whether a service can be classified as "noninteractive". For example, if there is just one DJ in a
room, then the DJ can only hear 30-second previews of the songs selected. This means that Turntable.fm cannot be used
to provide interactive, on-demand programming solely for the user. In addition, listeners in a room cannot see
what song the next DJ plans to play, which satisfies the DMCA requirement that
a noninteractive service cannot reveal upcoming songs to be played and while a
song is being played, artist and album information is displayed. Turntable.fm also complies with the
requirement that a "noninteractive" service cannot, in any three hour period, play more than three songs from the same album (and no more than two consecutively) and no more than four songs from the same artist (and not more than three consecutively). Yet, notwithstanding the above restrictions, the DJs
have complete control over the music played and it could be argued that this
type of user control is unprecedented in a noninteractive service. The leading
case to address the issue of whether a streaming service should be deemed
"interactive" or "noninteractive" under the DMCA involved a
suit brought by Arista Records against Launch Media, which operates the
LAUNCHcast service. The Second Circuit
approached the issue by focusing on the potential impact that a service could
have on sales of recorded music. A
"noninteractive" service does not require mechanical and sound
recording licenses and thus the additional revenues that the record labels
would receive. Therefore, the court
reasoned, at the point that a streaming music service provides "sufficient
control to users such that playlists are so predictable that users will choose
to listen to the [service] in lieu of purchasing music, thereby—in the
aggregate—diminishing record sales," that service is no longer
"noninteractive." The court
went on to hold that the LAUNCHcast service is "noninteractive"
stating that, "to the degree that LAUNCHcast's playlists are uniquely
created for each user, that feature does not ensure predictability." In making this finding, the court pointed to
the fact that 60% of the songs programmed through the service are done so with
virtually no input. As the court said,
"the unique nature of the playlist helps Launch ensure that it does not
provide a service so specially created for the user that the user ceases to
purchase music." Whether Turntable.fm can meet the "predictability"
test established by the Launch Media decision or whether it would otherwise be
deemed to comply with the DMCA's requirements for a "noninteractive"
service is open for debate. A reasonable
argument could be made that users of the service have substantial control over
the songs being played, making the programming sufficiently predictable that
Turntable.fm could become a substitute for purchasing music. Beyond the Second
Circuit's analysis under the Launch Media decision, other features of the
Turntable.fm service do not appear to comply with certain provisions of the
DMCA's definition of a "noninteractive" service. The music is programmed entirely by the user
DJs and streamed within one hour of "selection" in violation §
114(j)(7) of the DMCA. More broadly, the DMCA defines an
"interactive" service as one that is "specially created"
for the user. It is unclear how the
"specially created" element might be interpreted for a service like Turntable.fm,
which has both DJ users and "audience" users. Depending on the vantage point (i.e. DJ user
or "audience member" user), the "specially created" factor
could come out on either side of the
"interactive"/"noninteractive" divide. Of course, unless
and until Turntable.fm is challenged in court, these questions may never be put
to the test. But regardless of whether
they are, we do not believe that the unanswered questions will slow the rapid
evolution of the digital music landscape and anticipate the continued launch of
new services in the coming months and years.