Month: June 2014

Audio Casebook: ABC v. Aereo (S.Ct. 2014) (broadcast television DVR)

Listen to the Audio Casebook: ABC v. Aereo (S.Ct. 2014) (broadcast television DVR)



Aere-no! The broadcasters win. The new “commercial objective” standard of copyright analysis.

Following the live blog, the bullet points were posted as the decision was being handed down, and upon a quick reading of the case shortly thereafter.

  • The transmission from Aereo to its customer is an infringing public performance.
  • Crazy copyright lineup: Breyer writes for the majority, with Scalia, Thomas and Alito dissenting.Aereo basically set up a cable company, in spite of the “behind-the-scenes technological differences”
  •  The Supreme Court sides with the Ninth Circuit on a copyright case — fancy that!


Sendee Beware: Receiving DMCA Takedown Requests

Rosen v. Global Net (C.D.C.A. June 20, 2014)

Daisy Fuentes, photographed by Plaintiff Barry Rosen

A cautionary tale. DMCA takedown notices are complete when they are sent to the designated agent, not when (or if) they are received. Global Net listed contact information for DMCA takedowns, and Barry Rosen emailed and faxed one for unauthorized posting of his photographs of a few celebrities (Amy Weber, Daisy Fuentes, and Gena Lee Nolin). Global Net never took down the photos, and Rosen sued (more…)

Prediction on ABC v. Aereo

I figured I’d port over this conversation I had on Facebook with my friend Bradley offering half of a prediction on ABC v. Aereo:
Bradley Glenn
so Britton, in your opinion the broadcasters will win?

Britton Payne
I think Aereo is right on the law, but most people seem to think it will be a very limited ruling that smacks down Aereo while allowing cloud computing and storage to persist without upsetting copyright law. The three issues most likely to decide the case are 1. does the distribution from Aereo to its customer violate the “transmit clause,” 2. is Aereo or the customer the volitional actor, or 3. some public policy thing predicated on the deal broadcast networks have with the government to use the public airwaves. We’ll know soon enough!

The “Used” Digital Music Case

You can sell your used records, books, and other copies of creative works without needing permission from the copyright owner of those works. This is the “first sale” doctrine (17 U.S.C. §109), and has been the law of the land for over a century. In the Internet age, songs and other works are bought and distributed digitally, and may never exist in a traditional physical form like a CD or cassette tape. Does the first sale doctrine still exist for digital works? Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013) takes a look at the issue, and explores the cutting edge of the first sale doctrine.

The “Used” Digital Music Case

Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y. 2013)

The Facts

  • A New Kind of Used Record Store
    Music is now bought and sold digitally. ReDigi set up a marketplace for selling “used” digital songs. It removes the song from the seller’s iTunes account, “migrates” it to the ReDigi Cloud Locker, where it can be sold on the ReDigi marketplace.


The Cardinals Paintings Case

Franklin Mint Corp. v. Nat’l Wildlife Art Exch., 575 F.2d 62 (3d Cir. 1978)

CardinalsOnAppleBlossomThe Facts

  • Paint Me a Cardinal
    In 1972, Ralph H. Stewart wanted to start the National Wildlife Art Exchange, to commission and sell limited edition wildlife prints. Stewart hired the big deal wildlife artist Albert Earl Gilbert ( to paint a watercolor of cardinals, based on normal source materials like photos, sketches, and two stuffed cardinals to study for his cardinal painting. Gilbert made the painting “Cardinals on Apple Blossom.”
  • Falling Out
    Gilbert and National Wildlife had a falling out, leading to some question about the ownership of the rights in the painting. (more…)

The Case of the Public Doyle-main


The Trend of Enforcing of Copyright Term Limits

Understandably, intellectual property owners try to extend copyright protection for their successful works and characters beyond their term. Superman, Micky Mouse, Betty Boop, Amos and Andy, the song “Happy Birthday,” and any number of other characters and works have been involved in attempts to extend the creative monopoly of copyright. Sometimes owners simply ask Congress to extend the term, sometimes owners claim trademark protection when they’re really trying to protect the copyright, or offer creative copyright theories to skirt around the notion that copyright protection shall exist “for limited times” as mandated in the Constitution. However, a recent trend in courts has popped up, enforcing those copyright limits against intellectual property owners, and rejecting efforts to further extend protections of works that otherwise might have entered the public domain. See, e.g., Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958 (9th Cir. 2011). Today’s decision in Klinger v. Conan Doyle Estate, Ltd. (7th Cir.) continues the trend. (more…)

No Aereo decision yet…

We are waiting on the ABC v. Aereo (remote DVR service for broadcast television) decision from the Supreme Court. Decisions are generally issued at 10am on Mondays and Thursdays in May and June. The opinions trickle out at a pace of about 3-6 opinions per day, for a total of approximately 70 this term. You can find out more details and follow along at the fantastic live coverage of new decisions announced from the bench. Because Aereo was argued so late in the term (April 22) and involves a fairly complicated technical issue that the justices will want to handle thoughtfully, SCOTUSblog’s Amy Howe predicts that the decision will come towards the end of the term. The Supreme Court has three remaining days scheduled to issue opinions: Thursday June 19, Monday June 23, and Monday June 30. I wouldn’t be surprised if it Aereo was issued on the last day of the term, but I’ll be watching the live feed on each of those days.



June 23, 2014 update: Still no decision on ABC v. Aereo from the Supreme Court. The Court will be announcing decisions on Wednesday, June 25 and Thursday June 26, and possibly on the final day of the term, Monday June 30. Amy Howe from SCOTUSblog still predicts that ABC v. Aereo will be announced on the last day due to the complexity of the technology at issue, whichever day that happens to be.

3D Scanning and the Cardinals Paintings Case

The point of a 3D scan of an object (like a shoe or a banana) is to slavishly recreate that object in a new medium. What if there is a conflict over whether one scan of an object infringes another scan of that same object? There are very few decisions about 3D scanning, so we need to look at decisions in other media for guidance. Franklin Mint Corp. v. Nat’l Wildlife Art Exch., 575 F.2d 62 (3d Cir. 1978) addresses whether one naturalistic painting of a pair of cardinals in nature infringes another, and gives us insight into 3D scanning and copyright law.