4/5/2017 UPDATE: Okay, this is another way to get caught.
Last month, I wrote an article entitled, “Whether internet porn viewers ‘should expect viewing histories to be made public.” The fear that prompted that article was that someone could hack into the logs of a porn-streaming website, and with that information, expose the porn viewing habits of millions of Americans. The conclusion of that article was that it would be difficult for a hacker to hack into a website which streams adult content, steal the website’s logs containing the IP addresses of those who have viewed the web pages which stream the videos, and then somehow correlate that IP address list with the actual identities of the internet users. Thus, I do not expect to see any Ashley Madison hacks for websites streaming copyrighted content anytime soon.
Can I be sued for viewing adult content on a YouTube-like website?
The next question people asked was, “can I be sued for viewing copyrighted content on a YouTube-like site?” In short, the answer is yes, you can be sued, but it will likely never happen. Here’s why:
POINT #1: A COPYRIGHT HOLDER WOULD LIKELY NOT BE ABLE TO OBTAIN THE IP ADDRESSES OF THOSE WHO VIEWED THE WEBSITE STREAMING THE CONTENT.
While a hacker would likely be able to obtain the IP address records from a pornography website’s analytics through theft, a copyright enforcement company such as CEG-TEK or RightsCorp would be unable to get this information without 1) a court order, or 2) the cooperation of the adult website itself. The reason for this is that 1) porn website owners are notoriously outside the U.S., and thus, they are outside the jurisdiction of the U.S. federal courts. The copyright holders could try suing the website owners, but this is often a difficult task (finding an elusive website owner outside the U.S. is a much more difficult task than suing internet users who participate in a bittorrent swarm to obtain files using BitTorrent).
While the analytics companies could be sued and forced to disclose the list of IP addresses for a particular website, this is also an unlikely scenario because complying with such a court order directing them to turn over records for one of their clients’ websites could be 1) illegal, and 2) it could put them in jeopardy of being sued by their customer. So this is not a likely outcome.
Couldn’t the copyright holders provide a financial incentive to the Tube website owners to reveal the IP addresses of their visitors?
Secondly, the copyright holders could “join forces” with the website owners to participate in the financial earnings of going after the downloaders (alternatively, they could be outright paid to disclose this information), but again, doing so would put the websites own visitors (their own customers) in financial jeopardy, and thus they would likely not participate in such a scheme.
In short, it is unlikely that a copyright holder would be able to obtain this needed list of IP addresses of those who viewed certain copyrighted content, and thus, with a streaming site, the copyright holders would likely not be able to learn who you are.
[4/5/2017 UPDATE: When I wrote this article, I never expected a federal judge to order a Tube-site to reveal the identity of its users. Today, a California federal judge judge did just that. So in the context of this article, the financial ‘incentive’ that I considered a few years ago ended up being the force of a court order signed by a federal judge.
As described in the TorrentFreak article, Pornhub has been forced to provide the names, e-mail addresses, IP addresses, and other data exposing the identity of uploaders of pirated videos. These are not downloaders and they likely have accounts, which violates the rule I mentioned in 2015: “Users who create accounts on Tube Pages are at high risk of being exposed.”]
Why you should use a VPN at all times.
NOTE: It is still advisable to use a VPN when accessing a site streaming content, because your own ISP could be monitoring your web viewing habits, and they ARE in the U.S., and they could be sued and/or pressured to hand over “evidence” that your account visited a particular web page at a certain date and time. It is unlikely this would ever happen, but it is best to err on the side of caution.
POINT #2: ALL LAWSUITS TO DATE HAVE BEEN FOR BITTORRENT ACTIVITY. I HAVE NEVER (YET) SEEN A LAWSUIT SUING SOMEONE WHO VIEWED A PARTICULAR VIDEO ON A PARTICULAR WEBSITE.
To date [and as far as I am aware], all of the copyright infringement lawsuits filed in the U.S. District Courts (the federal courts) across the U.S. have been for BITTORRENT ACTIVITY.
With very few exceptions where the copyright holder identified and sued the UPLOADER (the one who POSTED the video onto the website) based on a watermark or secret code embedded into the copyrighted video that identified the accused infringer as being the one who disseminated the copyrighted materials, there has never been a “John Doe” bittorrent lawsuit against a downloader who got caught by viewing content streamed on a YouTube-like website. This is not to say that there will not be one in the future based on future internet fingerprint IDs forced upon internet users by government entities, or the like.
There are too many steps to obtain visitor information by force from the website owners.
Copyright holders have not yet and likely will never go through the initial step of 1) suing the website owner to obtain the list of IP addresses, and for this reason, I have not seen and do not foresee seeing lawsuits filed against internet users who view copyrighted content using a YouTube-like streaming service.
Laws can change, Technology can make surveillance convenient.
This is not to suggest or encourage that someone use this medium of viewing copyrighted films as technology can change, laws can change, and as the courts loosen their long-arm jurisdiction against foreign corporations and entities (weakening the Asahi case), the United States might start asserting its jurisdictions over foreign countries or foreign entities or corporations, and they might start forcing an internet fingerprint ID on the citizenry to track each citizen’s internet usage. The takeaway, however, is that it is a lot harder to sue someone for viewing streamed content rather than suing someone for downloading content via bittorrent.
EXCEPTION: Users who create accounts on Tube Pages are at high risk of being exposed.
An obvious exception to this article are those who have created accounts using their real identity or contact information, either 1) to participate or comment on forums or in the comment sections of the websites, or 2) those who pay a monthly or annual membership to access the premium content (e.g., faster speeds, unlimited content, etc.). If you have an account on a website which streams content, then YES, your identity is at risk, and your viewing habits could be exposed for the world to see. Otherwise, likely not.
CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.