## Facts

- Eastern Microwave, Inc. (EMI) was an FCC-licensed communications common carrier that retransmitted television broadcast signals to cable systems outside the stations’ service areas.
- EMI converted broadcast signals (including WOR-TV New York) into microwave signals and relayed them via satellite or terrestrial microwave repeaters to cable systems, which then distributed the reconverted signals to subscribers.
- Since 1965, EMI retransmitted WOR-TV’s entire signal without selecting among programs and without modifying the signal.
- Doubleday Sports, Inc., owner of the New York Mets, held the copyright in the audiovisual works of Mets game telecasts and had contracted with WOR-TV to broadcast approximately 100 games per season.
- Doubleday notified EMI that EMI’s retransmission of WOR-TV broadcasts of Mets games infringed Doubleday’s copyright.
- EMI sued for a declaratory judgment that it was a “passive carrier” exempt from liability under 17 U.S.C. § 111(a)(3).

## Issues

1. Whether EMI’s retransmission of WOR-TV’s broadcast signal, including copyrighted Mets telecasts, subjected EMI to copyright infringement liability.
2. Whether EMI qualified for the 17 U.S.C. § 111(a)(3) “passive carrier” exemption because it lacked control over content/selection, lacked control over recipients, and merely provided communications channels.

## Decision

- The court reversed the district court’s partial summary judgment for Doubleday.
- EMI’s retransmissions fell within the § 111(a)(3) exemption because EMI operated as a passive common carrier.
- EMI did not control the content or selection of WOR-TV’s programming because it retransmitted the entire signal without alteration.
- EMI did not control the particular recipients of the secondary transmission in a manner inconsistent with common-carrier service; it delivered signals to cable systems on a nondiscriminatory basis.
- Even if EMI’s retransmission could be characterized as a “public performance,” § 111(a)(3) exempts qualifying carriers from liability.

## Legal Principles

- Under 17 U.S.C. § 111(a)(3), a carrier is exempt from copyright liability for a secondary transmission if it:
  - has no direct or indirect control over the content or selection of the primary transmission,
  - has no direct or indirect control over the particular recipients of the secondary transmission, and
  - does no more than provide wires, cables, or other communications channels for the use of others.
- A retransmitter’s status as a neutral communications conduit, including retransmission of a full broadcast signal without program selection or modification, supports treatment as an exempt passive carrier.
- The § 111(a)(3) exemption operates as a statutory carve-out even where the retransmission would otherwise fall within conduct covered by the Copyright Act.

## Conclusion

The Second Circuit held that an FCC-regulated common carrier that retransmits a broadcast station’s entire signal without selecting or altering programming, and without controlling the specific recipients, qualifies for the § 111(a)(3) passive-carrier exemption and is not liable for copyright infringement based on that retransmission.


E. Microwave, Inc. v. Doubleday Sports, Inc., 691 F.2d 125 (2d Cir. 1982)