Caselaw Chitchat: “Aereo and Arguendo with John Collins”

Listen to the Copyright On! Podcast Episode 3 — it’s a Caselaw Chitchat with John Collins of the theater company Elevator Repair Service! John is a self-described Supreme Court nerd who went so far as to create Arguendo, a surreal, verbatim reenactment of the oral arguments in Barnes v. Glen Theatre, a Supreme Court case about the free speech rights of erotic dancers.

You can listen to it here even before it appears on iTunes! Enjoy!


And for more about Arguendo, watch this trailer for their show:


Classroom Recap: Who Pressed the Button? Volition and Copyright Law

Listen to the Copyright On! Podcast Episode 2 — it’s a Classroom Recap on volition and copyright law called “Who Pressed the Button?”  You can listen to it here even before it appears on iTunes! Enjoy![audio ]

Why Bother with Canadian Copyright Registration?

A question from a friend about Canadian copyright registration:
Hey, Brit!I’ve got a question for you.

In Canada, the Canadian Intellectual Property Office is where people can register patents, trademarks, copyrights and industrial designs. I don’t know how good their non-‘copyright registration’ services are. This is a question about copyright registration.


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…)