The authors write:
Yes, considerable mischief.In 1999, the same New York federal court now hearing the broadcasters’ and copyright owners’ lawsuit against ivi denied the “passive carrier” exemption to a company called Media Dial-Up. See Infinity Broadcasting Corporation v. Wayne Kirkwood d/b/a Media Dial-Up 63 F. Supp. 2d 420 (1999). Media Dial-Up retransmitted radio broadcasts in remote cities via telephone to its customers who paid a fee for access. Even though Media Dial-Up met all of the factors that would entitle it to be classified as a passive carrier and enjoy the safe harbor of 17 USC 111(a)(3) – no control over the selection of the primary transmission, no control over the recipients of the secondary transmission and the provision of wires, cables or communication channels for the use of others - the court refused to classify Media Dial-Up as a “carrier.” The court stated that to construe the word “carrier” in such a way “would do a violence to a fundamental premise of the [Copyright Act].” ”In an era of rapid technological change,“ the court wrote, “possibilities for the capture and retransmission of copyrighted material over the Internet . . . are enormous.” The court stated that classifying Media Dial-Up as a passive carrier “would threaten considerable mischief.” The court called this the “common sense” view of the statute. While this case undoubtedly weighs against ivi, we believe that the holding may suffer from flawed analysis. In our view, having met all of the elements of 17 USC 111(a)(3), Medial Dial-Up should have been classified as a passive carrier. In the court’s view, the “practical consequences” outweighed literal application of the law. Emphasis added.
Ironic that this case would be argued in the SDNY. Maybe judge Kaplan will hear it.