Fair Use needs to be more predictable.

Here is a quick list of 5 items that should be considered “fair use” under the copyright laws. This should be codified as a “Fair Use Bill of Rights.” Let me know your thoughts, if you agree, disagree, or would add other things:

  1. Any third-party clip that is used for less than 5 seconds is fair game (ex. using a short 5-second audio or video clip, sound effect, music clip, etc.) regardless of the purpose.
  2. Any photo can be used if the content creator is either using it to (a) help tell the story or (b) commenting on the photo in some form or fashion.
  3. A content creator cannot use a third party’s content more than TWICE in any one film or creation. But if two or less, this is fair dealing.
  4. Both parody and satire should qualify for fair use protection
  5. Any content that is reasonably believed to be over 100 years old so be fair use, even if that belief is wrong.

Those in the business of tracking and monitoring illegal software usage with “phone home” technology should be held to a strict reading of the statute of limitations.

As a seasoned software copyright lawyer having handled hundreds of infringement defense matters with various companies such as Ansys, Siemens, Autodesk, Microsoft, Solidworks/Dassault, Vero/Hexgaon, Synopsis, and others, I have come to find a common trend that may need legislative addressing. This deals with companies that use “phone home” technology that notifies the software publisher whenever unlicensed software is being used.

The companies in this arena vary, and this monitoring of a company is typically justified by an alleged consent to the terms of the end-user license agreement (“EULA”) which sets forth that the company can do this to protect its intellectual property.

While this is understandable, the problem becomes that in many cases I am noticing “hits” or “usage” going back four, five, or even six years. This raises a potential statute of limitations issue (the SOL for copyright infringement is three years from the date of discovery).

In these cases where you have companies that are in the business of monitoring and tracking users, they should be required to act within three years to pursue a claim in federal court. Instead, we don’t see this and the typical response is “we just discovered the infringement.”

This is not really true because they have been tracking illegal use of say a pirated program from a torrent site like Pirate Bay, but trying to rack up the hits (failure to mitigate damages) by waiting around and seeing how many uses a company can rack up before the publisher does something about it five years later.

There should be a strict rule from the courts, or a statute, stating that these companies who routinely employ these monitoring measures must bring their action within three years of the first logged illegal use of the software.

Strike 3 Holdings has filed THOUSANDS of lawsuits across the United States in states like Illinois, Washington, California, Florida, New York, Pennsylvania and other states.

Typically, they are extracting settlements anywhere from $150 to $750 per movie allegedly infringed. This can add up. For example, if an adult downloads 100 movies and shares them via BitTorrent protocol via “the swarm” the so-called John Doe Defendant can be on the hook for a $20,000 to $50,000 settlement.

Many people who are sharing their movies online have no idea they are doing anything illegal. For example:

  1. Most do not see any copyright symbols on the movies;
  2. Most do not see any FBI WARNING SYMBOL as you see at the movies putting you on notice not to infringe copyrights
  3. Most have never had a business law class where POSSIBLY they would have been exposed to copyright law
  4. Most have never taken a copyright course in law school
  5. Most remember Napster, and many believe it is a legal technology

So, there are lots of reasons why people infringe on these movies, but most doing so have no idea they are doing anything wrong. However, under the copyright laws of the United States even “non-willful” infringement or “innocent infringement” is actionable.

I think its time for Congress to enact legislation requiring Strike 3 to put warning notices on their films and a copyright notice so that users will KNOW DEFINITIVELY that they are engaging in illegal conduct when they enter the BitTorrent realm and download, share, and distribute films.

Breaking Copyright News – Copyright Claims Board (CCB) is set to take its first infringement filing on June 16, 2022.

So, what will it be?  A photo infringement case by AP, Reuters, or Agence France Presse?  A fabric design infringement (Etsy dispute), infringement of a jewelry design or architectural plan, or good old-fashioned music or video piracy case.  It remains to be seen, but as we have mentioned, the cases can go up to $30,000 so this is not really a “small” claim anymore.

Listen here for more information


Steve Vondran in Washington D.C.

Steve Vondran, Founder of Copyright Policy Group

The library of congress provides exemptions for copyright law.  For example, the Digital Millennium Copyright Act (“DMCA”).  Many vehicles nowadays, including cars, trucks, tractors and even boats and yachts are run by software (ex. driving and braking assistance, power windows, seats and doors, navigation and media/entertainment systems.

Many times, when you “buy” a vehicle you may not be actually “buying” the software that runs the vehicle.  That may be subject to a copyright “license” meaning you cannot violate the copyright holder’s rights without legal rights to do so (for example, “fair use” rights).

Listen to our copyright law podcast

DMCA 1201 lawyer

Recently, the Library of Congress passed a guideline which allows people to “hack” their own vehicle for safety reasons.  Listen as Attorney Steve®, the copyright lawyer explains in this podcast.


Well, they finally passed the CASE ACT (slipped it into a Coronavirus spending bill), and now there will be a copyright small claims court handling cases up to $30,000.  I will be posting a video on this shortly.  From what I can tell, new cases can be filed as early as December 2021 if nothing halts implementation.  I am not sure how they will handle a slew of cases that I expect will be filed by photographers, software companies, authors, video production companies, and others.



Difficulties that immigrants face trying to make it in the U.S.A.  

Click here to view our copyright petition on Change.org.

So many people are being sued – and threatened to be sued – by “copyright trolls” which are holders of intellectual property rights (such as video, film, photos, software, boxing broadcasting rights and other creative content) who seek top profit in the Courts by pursuing copyright infringement cases.

Our country is a country of immigrants and very few people understand the intricacies of copyright law.  Nevertheless, “everyone is presumed to know the law” as the old saying goes.

In my IP law practice, I have seen many minorities and their companies, and others, bullied for various infringement claims and forced to pay large settlements for using a photo on their website, or downloading or sharing files through BitTorrent, or broadcasting a boxing match without commercial licensing rights at their {half-filled} restaurants, bars and taverns.

Most people are GOOD PEOPLE and don’t realize they are doing things wrong, and most have never received a CEASE and DESIST letter (which would naturally notify people they are violating the law and they should stop).  Most people would in fact stop.  Of course, this would dry up the “infringement market” for many companies who are profiting in this space.  While I understand the need to protect intellectual property, I see many small businesses getting smashed by large five figure settlements.

To me, I think a Cease and Desist letter should be required as the first contact with a individual or company violating copyright laws.  The recipient of the letter, if true, should pay a $250 penalty to cover the costs of the cease and desist letter or the rights holder could reserve their rights to go to Court.

This would both cut down on the large number of federal court lawsuits being filed each year (clogging the Courts with these cases), and for our new friends to this great country, (and perhaps not familiar with all the laws), this would allow them to avoid these types of “financial disasters” that can put them on the brink of fail, unwittingly in many cases.

Who will join me?

Using the “Heart of the Work” is something everyone should consider before relying on the fair use defense

Heart of the work

Plaintiff Los Angeles News Service (LANS) licensed its news stories, photographs, audiovisual works, and other services to other news media outlets. While covering the 1992 Los Angeles riots, LANS filmed several segments of nighttime rioting, including the iconic segment titled Beating of Reginald Denny. Although LANS refused to grant defendant Channel 9 television station a license, the station broadcast the footage a number of times on commercially sponsored news programs.

Plaintiff sued the defendant for using an excerpt of its copyrighted videotape of the Reginald Denny beating during the 1992 Los Angeles riot.

The TRIAL court, weighing the statutory factors of 17 U.S.C.S. § 107, found that summary judgment for the defendant under a “fair use” defense was proper.  On appeal, the APPEAL COURT held that summary judgment was improper:  defendant’s use of plaintiff’s copyrighted tape was arguably in the public interest, as a percipient recording of a newsworthy event, defendant’s use was commercial and came in the wake of plaintiff’s refusal to issue a license.

Although the defendant used the tape because it recorded news of considerable significance from the best perspective of any witness, there was no evidence that alternatives were not available.

There was no dispute that the defendant used the “heart” of the tape. Under such circumstances, the court could not say that “fair use” was the only reasonable conclusion a trier of fact could reach.  Summary judgment was thus improper.


Fair use is a mixed question of law and fact.’ If there are no genuine issues of material fact, or if, even after resolving all issues in favor of the opposing party, a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150 (9th Cir.1986) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985); other citations omitted).

Amount and substantiality of what was used. While a small amount of the entire Videotape was used, it was all that mattered. As we said of the defendant Audio Video Reporting Services in Los Angeles News Service v. Tullo, which provided a video “news clipping” service by monitoring television news programs, recording them on videotape and selling copies to interested individuals and businesses, “[a]lthough AVRS copied only a small part of the raw footage shot by LANS, it was the most valuable part of that footage. In preparing a newscast, a television station selects the most effective and illustrative shots from the raw footage available. Thus the news programs AVRS copied included what LANS’s customers thought was the best of the LANS footage — its `heart.'” Id. at 798. Here, as there, this factor weighs against KCAL, for “the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else’s copyrighted expression.” Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233.



Here are some recent cases that have come down dealing with Copyright Law.

  1. Virginia Fair Use Case:  (reversing a decision finding fair use in a photo copyright case involving a picture of Washington D.C.).  The Court noted:

“The fair use affirmative defense exists to advance copyright’s purpose of “promot[ing] the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8 ; see also Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

The defense does so by allowing “others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 350, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

But fair use “is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.” Kienitz v. Sconnie Nation LLC , 766 F.3d 756, 759 (7th Cir. 2014).”

The “ultimate test” of fair use is whether the progress of human thought “would be better served by allowing the use than by preventing it.” Cariou v. Prince , 714 F.3d 694, 705 (2d Cir. 2013) ” Brammer v. Violent Hues Prods., 922 F.3d 255, 262 (4th Cir. 2019).

Our law firm has handled many cases of photo infringement involving fair use.  While it is important to protect the intellectual property of artists including their photos, illustrations, art, music, software, film and video, many times an infringement letter is sent without first considering statutory fair use rights.

Indeed, fair use is a “defense” to copyright but it is also a LEGAL RIGHT built specifically into the United States Copyright law.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The case has a really good analysis of all factors, and we plan to post a video discussing the factors in greater detail.

CASE ACT – Does it make sense?

Congress considers copyright small claims court.

A new bill considers creating a small claims court where filmmakers, photographers, jewelry companies, software designers and other copyright holders can bring their small claims cases.  Will it pass?  Right now (as of January 2020), it appears to be held up by one vote.  CPi believes there is no need for a copyright court in Washington D.C. based out of the Copyright Office and with damages that can reach up to $30,000 for willful copyright infringement.  While artists do deserve to be compensated for their works, and infringement does need to be deterred, the CASE ACT will likely lead to “floodgate litigation” and will result in many people being sued by artists without much considering of fair use rights.

Moreover, musicians, artists, photographers, videographers, writers, and illustrators ALREADY HAVE LEGAL RECOURSE for infringement of their Works.  They can already sue in federal court in their jurisdictions assuming they have REGISTERED THEIR CREATIVE WORKS.  So, there is no need to create a whole new Court in D.C. where thousands of lawsuits can be filed.  For registered Works, there are already many copyright lawyers ready to handle your case on a “contingency fee basis” (as the United States Copyright laws allow for the recovery of attorney fees for the Plaintiff if successful).  So, the argument “we deserve to get paid” is not a legitimate argument as they already have access to federal courts and attorneys are already incentivized to take these cases.

Another reason is that Defendants have the legal right to “opt-out” of the Washington D.C. based copyright small claims case.  They do not have to consent to jurisdiction and one reason they may not is that there is no apparent right to appeal or have the case reviewed if the panel makes a bad decision.   Some have argued that only unsophisticated persons would consent to jurisdiction (not knowing any better), and many individuals accused of infringement may not have the resources to put up a legal battle, and thus, the copyright court could turn into a “default judgment mill.”  This argument has merit.

This would also create new expenses for taxpayers in building out the process that does not need to be created because federal courts already exists and are well equipped to deal with copyright infringement claims.

Many organizations oppose or have concerns over the proposed CASE Act including:

American Library Association

Association of Research Libraries

Association of College and Research Libraries

Public Knowledge

We will keep an eye and see if they can get the final vote needed to pass the Copyright Alternative in Small-Claims Enforcement Act (CASE Act).