Here’s the FBI Anti Piracy Warning, for your reading pleasure:

“The unauthorized reproduction or distribution of a copyrighted work is illegal (1). Criminal copyright infringement, including infringement without monetary gain (2), is investigated by the FBI (3) and is punishable by fines and federal imprisonment. (4)”

It shows up on every movie screen, and you’ve seen it a hundred times. But what does it really mean? This blog post breaks it down, step by step.

1. What is unauthorized reproduction/distribution?

Well, it’s actually a little easier to look at authorized reproduction/distribution, which is covered under Fair Use.

Fair Use is spelled out under Section 107 of the Copyright Act, and it’s a baseline for making sure copyrights do what they were intended to do–that they’re protecting and encouraging the imagination of individual creators, and not throttling the creative process altogether.

It’s a delicate line to walk; to make sure that creators get fairly compensated for their work, while also leaving the laws open enough so others can share the work and be inspired/delighted/educated.

And that’s where Fair Use comes in! Generally speaking, if you’re using a creative work for one of these purposes, you’re probably (but not definitely) in the clear:

• Criticism
• Comment
• News reporting
• Teaching
• Scholarship
• Research

On top of that, the US Copyright Office asks a few different questions to see if it really is “Fair Use”–because Fair Use claims are evaluated on a case-by-case basis. (So if you’ve heard any rumors about using 30 seconds of a song royalty-free, that’s not true.)

Here’s what the US Copyright Office looks into:

What’s the purpose and character of the use?

If you’re using a song to advertise your shoe business (for free), not cool. If you’re using it as a tool to teach your students about chemistry, that’s generally fine.

Also, if you’re using something in a “transformative” way–meaning that you’ve taken the original material and changed it in some key way, adding your own original material, that’s more likely to be seen as fair use.

If you haven’t seen “Everything Is A Remix,” part 1 is linked below:

Everything is a Remix Part 1 from Kirby Ferguson on Vimeo.

What’s the nature of the copyrighted work?

Again, copyright is supposed to encourage creative expression. So were you using a creative work–like a clip from a movie? Or were you using a software manual? If you’re redistributing factual work, that doesn’t further creative expression in any way–it’s just stealing someone else’s work.

How much of the copyrighted work did you use, and how substantial was that part?

Generally speaking–replaying an entire movie, scene-for-scene? Not allowed. Using a tiny sample of a song in your remix? Probably allowed.

However, the US Copyright Office notes that “some courts have found use of an entire work to be fair…in other context, using even a small amount of a copyrighted work was determined not to be fair because the selection was the ‘heart’ of the work.”

How will your use of the copyrighted work affect the potential market for or value of said work?

If you’re freely distributing a book, will it hurt the original author (because people will download it from you instead of buying from them)? On the contrary, if you run a popular blog and you post a clip of a new song from a new artist, will you encourage sales?

A good rule of thumb is this: if your use of the copyrighted material is somehow harming the original creator, it’s probably not fair use.

2. What is infringement without monetary gain?

“Infringement without monetary gain” was put in place because of the “LaMacchia Loophole,” in which a 21-year-old MIT student named David LaMacchia freely distributed “countless commercial software programs.” Since he didn’t sell them, he didn’t technically profit, so it wasn’t technically illegal…but the software companies still lost a ton of money.

After that, the NET Act closed that loophole, so we go back to the rule of thumb I just mentioned. If you’re using copyrighted material in a way that harms the original creator, it’s probably illegal.

3. What does an FBI investigation against piracy look like?

Not necessarily an FBI investigation, but Lauth Investigations International describes the process of a copyright infringement investigation as the following:

Step 1: Evaluate the situation.

First and foremost–did the actions in question actually violate copyright law?

Step 2: Figure out the scope of the copyright infringement.

To what degree or percentage was the copyrighted content infringed upon? This helps shape the action the business needs to take.

Step 3: Determine who the violator(s) are.

This can be difficult, depending on how long ago the violation took place, and the anonymity of the violator(s).

Step 4: Gather evidence and determine damages.

This step requires legal counsel–and it’s most helpful if you registered your copyright before the infringement took place.

Step 5: Notify the violators of the situation and the proposed remedies.

This can be done with a DMCA Takedown Letter from you or your attorney, but in some situations, you might need to bring the case before a judge.

4. What are the fines, and when does imprisonment come into play?

If someone willfully steals your content, and a court finds them guilty of willful infringement, those statutory damages awarded to you can range between $30,000 to $150,000 per registration, plus attorney’s fees.

As far as prison time goes, according to the U.S. Department of Justice, first-time copyright infringers could get up to five years in prison–repeat-offenders could be on the hook for up to ten.

Summary: FBI Anti Piracy Warning

The crux of the FBI Anti Piracy Warning is this–when you see it, you’re about to enjoy a creative work on which the creators worked tirelessly. Enjoy it, share it for educational purposes or in ways that help the creators (like in a review), but don’t share the content in a way that might discourage the original creators from making new work altogether.

Photo credit: Julien Andrieux//Jakob Owens