Are FBI Anti-Piracy Warnings More Bark Than Bite?

By: James DeSantis,

Thanks to its ubiquitous placement at the beginning and end of commercially released films, the criminality of copyright infringement is perhaps the most widely viewed criminal statute in the United States.[1] Despite its prominent place in the American psyche, the very existence of criminal liability for violating copyright laws is of relatively recent origin and one that has only ever been intermittently enforced.[2] It is important to distinguish between civil and criminal liability for copyright infringement. Civil action by one party against another is by far the most common way of protecting copyright infringement; whereas, criminal action for copyright infringement requires enforcement by government agencies and can lead to prison sentences.[3] Criminal liability for copyright abuse follows a consistent pattern of periodically raising fines and penalties while simultaneously lowering the legal thresholds for what types of activities constitute criminal infringement. Despite the increasingly stiffer penalties, expanded prosecutorial powers, and wide public awareness, criminal enforcement for copyright infringement is more honored in the breach than the observance− rarely does a breach result in serious liability.

Under the Constitution’s Copyright Clause, Congress has the power “to promote the Progress of Science and the useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries.[4]” The first criminal provision in U.S. copyright law was introduced 1897, which made it a misdemeanor for the “unlawful performances and representations of copyrighted dramatic and musical compositions” as long as the violation had been “willful and for profit.[5]” Until the implementation of criminal penalties for copyright infringement, copyright concerns were entirely a civil rather than a criminal matter.[6] The idea was that copyright violations were of private financial concerns rather then the purview of the criminal justice system, especially considering that many types of copyright infringement can be beneficial to the public.[7]

As the entertainment industry grew and the technology advanced, the financial gains for reproducing another’s successful work became an ever increasing concern and criminal penalties for copyright infringement were greatly expanded in 1909 with amendments to the Copyright Act.[8] The Act expanded the copyright law to include all copyrighted material and added penalties of up to one year in prison.[9] Over the years, Congress periodically raised the statutory punishment for criminal copyright violations. First, in 1948, fines were increased from $1,000 to $10,000 and again in 1976, fines were raised from $10,000 to $25,000.[10] However, it was not until 1982, coinciding with the advent of home video and compact cassettes, that congress made copyright infringement for audio and visual recordings a felony punishable by both a $250,000 fine and five years imprisonment.[11] While criminal punishments exist on paper, criminal charges for copyright infringement are rarely enforced.[12] Of the 3300 published copyright cases between 1948 and 1997, only sixty-eight (two percent) involved criminal charges.[13]

The first major court decision of the then nascent issue of mass online copyright infringement occurred in United States v. LaMacchia, which exposed the legal limitations the government faced in attempting to enforce criminal copyright laws in the digital age.[14] The 1994 ruling dismissed a criminal action against a 21-year-old MIT student who made copyrighted software freely available for download through his electronic bulletin board.[15] Despite causing over $1,000,000 in losses to the software companies, LaMacchia could not be prosecuted under the existing law because it could not be shown that he personally profited from the scheme.[16] In response to the Supreme Court’s ruling in LaMacchia, which became known as the “LaMacchia loophole,” Congress passed the No Electronic Theft Act (NET Act) in 1997, amending the language requiring “commercial gain” to any “receipt, or expectation of receipt, of anything of value.”[17]

Originally heralded as a major legislative victory for the software and entertainment industries, the NET Act has been so rarely enforced by the Department of Justice (DOJ) that is widely seen as a major disappointment.[18] Despite no shortage of potential prosecutions that could be pursued, the NET Act is emblematic of how the mere existence of a law on the books is of little value, if the law is never actually enforced.[19]

Out of frustration with the lack of governmental assistance in combating rampant online piracy, the entertainment and software industries have aggressively lobbied congress to expropriate federal funds to go after online pirates and to allow the DOJ file civil suits against suspected pirates.[20] These lobbying efforts have had limited legislative success, and the chance that an individual in the United States will be criminally accountable for engaging in online piracy is negligible.[21] For all the efforts lobbying the U.S. government to take a more aggressive role in prosecuting online copyright infringers under federal criminal statutes, the most noticeable effect is the use ever more intimidating anti-piracy banners shown before films and on the back of CDs.[22] While Hollywood and the music industry aggressively warn customers of the criminal repercussions for illegally sharing a copyrighted work, in reality, governmental enforcement against online copyright infringement is rare.[23] So rare that the next time you see the FBI’s intimidating warning label you should see it as a public service announcement on behalf of entertainment companies rather than a genuine threat of prosecution from the U.S.’s highest law enforcement agency.

[1]http://thefbiwarningscreens.wikia.com/wiki/The_FBI_Warning_Screens_Wiki. (Public interest in FBI Warning screens is so high that they have even developed their own cult following as evidenced by their own Wikia fan page.)

[2] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

[3] 18 U.S. Code § 2319.

[4] U.S. Const. Art. I, § 8, cl. 8.

[5] Act of Jan. 6, 1897, ch. 4, 29 Stat. 481-82.

[6] See 17 U.S.C. §§ 502-505.

[7] Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, 83 B.U. L. Rev. 731, 733 (2003). (Copyright laws have always been a balance between private interests and benefits that accrue to the public).

[8] The Criminalization of Copyright Infringement in the Digital Age, 112 Har. L. R. 7, 1705, 1707 (1999).

[9] The Copyright Act of 1909 § 28.

[11] Piracy and Counterfeiting Amendments Act of 1982, Pub. L. 97-180, 96 Stat. 91

[12] Lawrence M. Solan, Statutory Inflation and Institutional Choice, 44 Wm. & Mary L. Rev. 2209 (2003).

[13] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA 527, 529 (1999).

[14] United Sates v. LaMacchia, 871 F. Supp. 535 (D. Mass 1994).

[15] Benj Edwards, The Lost Civilization of Dial-Up Bulletin Board Systems, The Atlantic (Nov. 4, 2016) (Bulletin Board Systems (BBS) were a precursor to the modern Internet in which individuals had their own servers that could be accessed remotely. The advent of Internet service providers and dial up modems destroyed the market for BBS in matter of months).

[16] United States v. LaMacchia, 871 F. Supp. at 542.

[17] No Electronic Theft Act (NET Act) Pub. L. 105-147. 111 Stat. 2678 (1997). (Making it a crime to willfully upload copyrighted materials to the Internet regardless of presence or absence of a profit motive).

[18] See Virginia Man Sentenced for Violation of the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet (March 3, 2000); First Criminal Copyright Conviction Under the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet, https://www.justice.gov/archive/opa/pr/1999/August/371crm.htm.

[19] Stuart Biegel, Beyond our Control?: Confronting the Limits of our Legal System in the Age of the Internet, The MIT Press, (2013).

[20] See The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (Aptly titled the PIRATE Act, the bill would allow federal prosecutors to file civil lawsuits against suspected copyright infringers and would allocate federal funds specifically for combating online piracy.); see also, Internet Property Enforcement Act of 2007, S.2317; Contra, Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279)

[21] See Kevin Paulson, Guilty Verdict in First Criminal Trial for Online Music Piracy, WIRED, May 23, 2008 https://www.wired.com/2008/05/guilty-verdict/.

[22] https://www.iprcenter.gov/ip-theft/digital-ip-theft.

[23] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

Image Source: https://www.hollywoodreporter.com/thr-esq/fbi-anti-piracy-warnings-over-time-pictures-322495.