Can I get caught viewing streamed copyrighted videos?

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since my warnings in the article about CEG-TEK is just as relevant to RIGHTS ENFORCEMENT (if not moreso), please feel free to read on.]

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.

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.

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.

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.

Thus, 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.

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.

NOTE: 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.

CEG-TEK: Naughty or Nice?

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since their methodologies are nearly identical, this article is still very useful.]

Copyright Enforcement Group (CEG-TEK) has sent possibly hundreds of thousands of letters to internet users accused of downloading copyrighted content via bittorrent. In their letters, they invoke the Digital Millenium Copyright Act (DMCA) as the justification for their “intellectual property (IP) enforcement” activities. They claim to be the good guys, but are they?  Are they “naughty or nice”?

CEG-TEK claims to be the good guys — they stop piracy, and as a result of their efforts, fewer people download on the ISPs’s networks (a social “good” and a “win” for the copyright holders). They have stopped the copyright troll lawsuits, for the moment. And, although they are charging $300 per title for each downloaded movie (sometimes higher) for what is often an accidental “click of the mouse,” they claim that they are not “bad” or “vindictive” like their Rightscorp competitor, which charges only $20 per title, but then sues the accused downloaders in federal courts, and then even go so far as contacting the ISPs in order to attempt to shut down the internet accounts of those accused of downloading their clients’ copyrighted titles via bittorrent.

But then again, CEG-TEK is a business. While I have had success negotiating away cases against veterans, the elderly, and in many cases, college kids, CEG-TEK has taken a number of steps which at best would be questionable.

Most relevant is the “admission of guilt” clause in their settlement agreements, which at the time of writing this article has flipped back to the version which does not include this clause. Months ago, when CEG-TEK expanded into Canada and then Australia, the settlement agreements which released those who have settled from liability included the following clause:

111715 Admission of Guilt in CEG-TEK Settlement Agreement

[For those of you who cannot see the image, it says, “…in the event of a (i) failure to clear, (ii) chargeback, (iii) cancellation, (iv) failure to complete…this Release shall be considered admissible and conclusive evidence of RELEASEE’s infringement of the copyright in the Work and that RELEASEE will be liable to CONTENT COPYRIGHT OWNER for all damages, statutory and/or otherwise, for such infringement plus attorney fees plus costs as of the Settlement Date…” (emphasis added)]

[Now as a side note, for those who are particular about formatting and details, note that CEG-TEK placed that inflammatory clause at the bottom of Page 2, and they split it up where half of it is at the bottom of the page, and the other half is at the top of the next page, where even a careful individual might not read the clause in its entirety because the inflammatory clause is separated by being on different pages.]

The problem with such a clause admitting guilt is that it is binding on an unsuspecting individual who tries to settle the claims against him by paying with a credit card. How?  These contracts are available to the individual paying the settlement fee on the CopyrightSettlements.com website to review, and upon processing the credit card payment, they agree to the terms contained within the contract.

Then, when their credit card transaction fails (either because their card is not accepted by CEG-TEK’s website, or because the transaction is declined, or, if through no fault of their own, because of the website itself the bank flags the transaction as suspicious (fraud alert for a large online charge) and fails to approve the transaction), at that point, the individual has admitted guilt to copyright infringement, which carries a $150,000 statutory fine for each title downloaded. Assume for the moment that the individual has five (5) cases.  Multiply this $150,000 amount by five separate copyright holders, and the individual could be looking at 5 x $150,000 lawsuits (= $750,000 in statutory damages separated into multiple lawsuits filed by different copyright holders all of whom hired CEG-TEK as their agent to enforce their copyrights) where the internet user has already admitted guilt.

Then, when the confused internet user who tried to settle calls CEG-TEK on the phone already having admitted guilt, what sort of leverage does the individual have if they are asked for more than $300 per title? Legally, they likely have no defense because according to the terms of the agreement, they already admitted guilt — even if the credit card transaction failing was not their fault.

So… Copyright Enforcement Group may be the “good guys” because they let attorneys negotiate away cases for vets, old ladies, and elderly gentlemen who don’t realize that they should be using a VPN when they download adult content, and CEG-TEK may serve the public good by demonstrating that piracy has gone down because of their efforts. While this is all true, remember: watch their contract, because caveat emptor still applies.

I don’t want to make this into a “you should have hired an attorney for your $300 matter” blog entry, but really, this is but one example of how even the “good guys” need to be approached with caution, and better yet, through a proxy by using an attorney. [I won’t even go into the conspiracy theories about CEG-TEK trying to get more than the $300 per title that is listed on the website.] Let’s stick to the facts and look at their contract to judge them on whether they are truly “naughty or nice.”


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.