The news that tens of thousands of RedTube users have been warned by various law firms spread like wildfire on the net last week. The warnings show that the affected users have made themselves liable to prosecution because they used the pornographic streaming offer of RedTube.
As is well known, there have been file sharing warnings for some years now, but the fact that streaming users are now obviously also affected was previously considered impossible, as there are still no concrete laws that definitely prohibit streaming. Do the users of Xnxx and Co. now have to expect a warning as well?
Whoever plays streaming files is moving in a legal grey area
The question of whether playing a streaming file is illegal and thus actually prohibited cannot be answered unambiguously at present. Until now there is no valid judgement which clearly prohibits the viewing of a streamed porn video on Xnxx. Furthermore, the streaming user downloads the file only temporarily and does not offer it to any third party. However, the streamed porn is cached in the computer’s temporary system folder – and this is where the lawyers come in. Normally, the cache is automatically deleted after the computer is restarted. However, the user has the option of copying the cached file from the temporary folder beforehand.
This file is then considered a duplicate and thus falls under section 53 of the German Copyright Act. According to this, however, reproduction is only permitted with the express permission of the copyright holder. Otherwise, the copy may only be used for private use and may under no circumstances be passed on to third parties or offered publicly. The original streaming offer must be “obviously illegal” according to legislation. However, since many films on Xnxx are so-called private porn, the question arises as to how far they can be illegal at all.
Xnxx.com is a “user-generated streaming site”
Many of the porn movies offered on Xnxx are “user-generated”. This means that these films and clips were produced and uploaded by private users. The problem, however, is that it is not possible to see directly whether every porn movie is obviously illegal. For example, if a privately produced film is accompanied by copyright-protected music without the user having the rights to it, the film and the viewing of it is considered illegal. Furthermore, some of the films shown on Xnxx have been uploaded without the consent of the rights holder, which the user can only recognize in the rarest cases.
Can users be warned by Xnxx?
Many of the porn streaming websites have a relatively similar structure and are sometimes operated by the same providers. In the case of RedTube, the law firm responsible for the project had the IP addresses of the users given to it and issued a warning to them accordingly. How the lawyers got the user data is still unclear. In principle, the operators are not obliged to hand over the personal data of the users. However, if, for example, there is a strong suspicion of a crime, a court can force the operator to hand over the data. In the case of RedTube, however, there is no recognizable criminal offence, so it is questionable how the law firm got the IP addresses.
Since the law firm has already announced that other porn platforms will be investigated in the future, there is indeed the possibility that Xnxx users could also receive a warning. However, the same applies to other porn sites such as YouPorn. However, some industry experts consider this statement by lawyers to be pure scaremongering, which is intended to prevent users from watching porn via stream.
What do I have to do if I receive a warning?
First of all it should be said that a warning by e-mail is not legally binding and should best be deleted immediately. For some time now, such alleged warnings have been used to spread viruses and Trojans – so caution is advised here. However, if you receive the warning by mail, it is recommended that you at least keep it. At present, there are still many uncertainties regarding the determination of personal data and the IP address. In addition, it has so far only been possible to prove a copyright infringement in very rare cases.
For these reasons, one should not respond to the request for payment, nor is it advisable to make the so-called declaration of discontinuance with a penalty clause. Most law firms send out further reminders after a few months and again refer to the request for payment. In addition, the person concerned often receives mail from a debt collection agency afterwards. Anyone who is unsure about this should consult a lawyer and in the reply letter attack any accusations that cannot be clearly substantiated. These include the question of how the law firm obtained the data, the usually exaggerated amount in dispute, and the basic claims for damages.
Basically it remains to say that the users of Xnxx and Co. are in a kind of legal grey area. Due to the lack of legislation, however, it is questionable which contents of porn streaming websites are actually illegal and which are not. If you don’t want to expose yourself to the risk of being warned in the first place, you should think carefully about which porn sites you visit and what content you watch there. Otherwise, it remains to be seen whether or when actually valid laws will be enacted that clearly regulate the use of streaming.
Sources: gulli.com, Xnxx.com