Pornhub Lawsuit. We CAN Get Caught Viewing Streamed Tube-like Videos

Pornhub lawsuit exposes the dangers of Google Analytics

Copyright trolls just convinced a California Federal Judge to force Pornhub to disclose the list of its users.

Last night, I coincidentally revisited the question of “Can I get caught viewing streamed Tube-like videos.”  I was concerned that with the advances in websites providing streamed content, that perhaps users who view copyrighted content without a license might be at risk of being sued for copyright infringement.

Now considering the Pornhub lawsuit, I realize that 1) any website owner with a Google Analytics account puts all of his users at risk for being sued, and 2) any internet user who does not block the Google Analytics trackers puts himself at risk of being sued.

Why it was time to revisit whether someone can get sued for viewing streamed movies.

The reason I was looking into it was because it has been a few years since I wrote that article, and streaming copyrighted content has become more prevalent now than it was a few years ago.

Most users use only one or two pieces of software, most notably, Kodi.

These days, there are software programs which are used to view copyrighted content, most notably, Kodi (a newer version of the XMBC software).  A few weeks ago, I was asked to review the risks of installing Kodi software on an Amazon TV Fire Stick device.

But with the bittorrent-based copyright infringement lawsuits being found out for what they are — a scheme where the copyright holder does not actually have evidence of infringement — I knew that copyright holders would seek other avenues and technologies to use as a data source to file copyright infringement lawsuits for streaming.

Discussing the likelihood of a user being sued for viewing streamed content.

In answering whether a user can get sued for viewing content streamed over the internet, I reviewed two articles:

  1. Can I get caught viewing streamed Tube-like videos, and
  2. Should porn viewers expect their histories to become public?

Here WERE my initial thoughts:

(NOTE: Based on the Pornhub lawsuit that I will discuss shortly, I believe that any internet user can get caught viewing copyrighted content.)

1. I initially thought that there was a low likelihood a copyright holder would be able to obtain the IP address of the infringer.

In the first article, I came to the conclusion that NO, AN INTERNET USER WOULD *NOT* BE ABLE TO BE CAUGHT VIEWING STREAMED CONTENT ON A YOUTUBE-LIKE WEBSITE because 1) the copyright holder would not be able to obtain the IP addresses of the viewers of the content (no longer true), and 2) all lawsuits to date against internet users have been for bittorrent activity (which technically is trackable).

2. “Tube” websites likely do not keep logs (I never considered something like a Pornhub lawsuit, or how Google Analytics exposes every visitor to a lawsuit).

I also assumed that a Tube-like website (such as we see in the Pornhub lawsuit) or any website that provides pirated content would not keep logs on their users — and if they did, they would never reveal them to a copyright troll.  Thus, I concluded that the copyright holder would not be able to learn which IP address visited which page on which Tube site.

However, in recent years, website owners use Google Analytics to track their users.  Each “tube” website is a business of their own, and I’m guessing they generate millions in ad revenue selling all sorts of products to their users.  Thus, it is a no-brainer that they would have a Google Analytics account.

Why Google Analytics can create a whole new class of copyright trolls.

Google Analytics can expose the IP addresses (and the browsing habits, and, and, and…) of the website visitors, and my guess is that Google would comply with a subpoena sent to it to unmask the IP addresses of the users who visited a particular website linked to a Google Analytics account.

Thus, there was no need to sue the Tube website holder like they did in the Pornhub lawsuit.  This was a misstep.

3. Copyright Trolls are generally lazy

Other factors which led to my initial opinion a few years back was that copyright trolls are generally lazy.  The entire business model of the copyright trolls is focused on leveraging the least amount of time to extract the largest amount of money from their victims.

Initially, I reasoned that filing a lawsuit against a website owner, and then correlating that list of IP addresses obtained from that website owner was already too much work for a troll.  Then, having to go through a second step of sending subpoenas to the ISPs to discover the identity of the account holder who was assigned that IP address on that particular date and time (and doing so before the IP address lease logs were purged according to the ISP’s IP retention policy), well, that would be too many steps for a troll.

However, with the introduction of Google Analytics, even this laziness is mitigated.  A troll wouldn’t need to fight the Tube website.  Rather, he would subpoena the logs from the Google Analytics account.  Then, he would obtain the identity of the account holder who had that IP address from the ISPs.  No Pornhub lawsuits would be needed.

In sum, this is no longer such a difficult thing to do. 

4. Most pirate website owners are outside the US

Initially, I thought that even if copyright holders were willing to file the lawsuit and overcome each of the other roadblocks, most pirate-content is hosted by companies which are outside of the US (and thus it would be difficult to pull them into a US court to comply with a US federal court order).

Again.  I am almost sad to say that the website owner is not needed in a lawsuit to unmask the identity of the internet users who visited a particular page.  Why?  That page is likely tracked by a Google Analytics account.

For these reasons, in 2015, I concluded that there was almost no way an internet user could get caught for viewing pirated content on a Tube-like site.

However, even so, I still recommended they use a VPN just in case I was wrong (and in hindsight, maybe I was wrong.  Maybe Google Analytics already was widespread back in 2015, but I simply did not know about it).

Pornhub lawsuit ordered Pornhub.com to expose copyright infringers

Fast forward to 2017 — Pornhub has just been forced by a judge to expose its users.

Okay, this was unexpected.  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 (that maybe a copyright holder could bribe a website owner to disclose its logs) 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.  

Pornhub Lawsuit Target: Uploaders and Users who create accounts on pirate websites.

There was one caveat that I mentioned in my “Can I get caught viewing streamed Tube-like videos?” article, and that caveat was that viewers and users who create an account on a pirate Tube site risk having that account information exposed at a later date. This has now been shown to be true in the Pornhub lawsuit, as it was exactly THIS USER INFORMATION which is sought by the copyright holders.

BACKGROUND: At the time that I wrote the articles, the Ashley Madison hack just happened, where millions of names of individuals who had a paid accounts on the Ashley Madison website (a website set up for the purpose of having an adulterous affair).  Also in the news were various reports of hackers who were claiming that they will soon expose the porn viewing habits of all users, and that was the subject of my October 18th, 2015 article.

It simply made sense that it was only a matter of time before a Tube website was hacked, or something was done (now we know – Pornhub lawsuit was filed) to unmask the records surrounding the registered users and uploaders to these sites.

WHAT AN INTERNET USER CAN DO TO PREVENT HAVING THEIR WEB BROWSING HISTORY EXPOSED

1. Use a VPN

Even last night, I came to the conclusion that ordinary users who protect and encrypt their internet connection by using a VPN would not be at risk if such a lawsuit or a hack actually happened.

I am still skeptical as to whether the California court will succeed in identifying anyone other than the users who uploaded content (or who created accounts on the Tube sites), however, I remain cautious about whether Pornhub had a Google Analytics account.

2. Block the Google Analytics tracker

The Pornhub Lawsuit teaches us to block Google Analytics

And now seeing the risk that Google Analytics creates for the internet user, I recommend every user install tracker blocker software on their browsers, specifically to block the Google Analytics tracker.  Tracker blockers include add-ons and extensions such as EFF’s Privacy Badger, or Ghostery.  

The Pornhub Lawsuit teaches us to block Google Analytics

Lastly, a word of warning as to advancing technology.

Last night, the “Google Analytics” piece of the puzzle did not even occur to me.  However, there was one big thing that did keep nagging at me, and it is worth mentioning:

BITTORRENT NOW OFFERS STREAMING

If I were to sound the warning call, it would be against using this feature.  Bittorrent is how 99.999% of the copyright infringement defendants across the US have been caught.

1. STREAMING VIA BITTORRENT IS STILL USING BITTORRENT

I cannot say this more simply.  Streaming content via bittorrent still requires a bittorrent swarm in order to obtain and play that content being acquired and streamed.  And if there is a bittorrent swarm, there is a copyright holder recording the IP addresses of the bittorrent users in that swarm who are sharing the streamed content to the other bittorrent users in that swarm.

2. POPCORN TIME IS STILL USING BITTORRENT

I have had it out with the Popcorn Time software developers so many times already, and the last I checked Popcorn Time still uses bittorrent to obtain and serve the movie content to its users.  Thus, Popcorn Time requires a bittorrent swarm and if there is a bittorrent swarm, there is a copyright holder monitoring that swarm.

SUMMARY

In sum, while it initially did not look like copyright holders would file a lawsuit to unmask the identity of internet users who visit a particular movie or streamed content, as I thought through the topic in writing this article, I see very clearly that IT IS NOW POSSIBLE.  

So far, I understand that the Pornhub lawsuit is only looking to unmask those who had accounts on Pornhub.  But who knows if Pornhub website owners used Google Analytics to track their users.  As I mentioned before, if Pornhub has a Google Analytics account, EVERY INTERNET USER WHO VISITED THEIR SITE (OR ANY TUBE SITE) IS NOW AT RISK.

So looking at this topic with fresh eyes (and knowing now a thing or two about analytics whereas in 2015 I didn’t even know such data existed), it only makes sense that internet users of porn SHOULD BE CONCERNED that their identities could get unmasked in a lawsuit such as this one.

 Discuss your Streaming Movie Case With a Cashman Law Firm Attorney


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.  Also, the contents of topics discussed on this site are not meant to be considered legal advice to act upon or not act upon.  Contact your attorney for answers specific to your particular circumstance.

    Can I get caught viewing streamed Tube-like videos?

    pcap-file-image

    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.

    4/5/2017 UPDATE: Okay, this is another way to get caught.

    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.

    Pornhub has been ordered to expose copyright infringers

    [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.

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