Court Holds that VPPA Applies to Online Streaming Video : Inside ...

The federal Video Privacy Protection Act (?VPPA?), 18 U.S.C. ? 2710, prohibits a ?video tape service provider? from disclosing information about a ?consumer of such provider? that ?identifies a person as having requested or obtained specific video materials or services.?? The statute?s key terms reflect its age: the VPPA was enacted in 1988 after a newspaper obtained from a video store a list of the tapes that Supreme Court nominee Robert H. Bork had rented.?

According to a recent decision in In re Hulu Privacy Litigation, however, the VPPA was not just built for the age of brick-and-mortar video stores; it also applies to online streaming video.? Citing the statute?s definition of ?video tape service provider? ? ?any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials" ? Magistrate Judge Laurel Beeler of the Northern District of California held that Congress drafted the VPPA ?to ensure that [its] protections would retain their force even as technologies evolve.?? Judge Beeler allowed a VPPA claim to proceed against Hulu, which is alleged to have disclosed video viewing information to third parties that provided services on its website.?

Hulu had argued that the statute should not apply to online streaming video because the definition of ?video tape service provider? suggested the VPPA was drafted to cover only information about consumers? having obtained physical objects from physical stores.? Rejecting that argument, Judge Beeler stated that "a plain reading of the statute" suggests it is concerned primarily?with "video content, not about how that content [is] delivered."?

Hulu also invoked two of the VPPA?s exceptions to its anti-disclosure prohibition, though also without avail.? First, Hulu cited the provision of the statute permitting disclosures ?incident to the ordinary course of business.?? Noting that ?ordinary course of business? under the VPPA ?means only debt collection activities, order fulfillment, request processing, and the transfer of ownership?, the court held that, at this preliminary stage of the proceedings, it was too early to determine whether the third parties to which Hulu allegedly disclosed plaintiffs? information performed those enumerated functions.??

Hulu also argued that the plaintiffs were not ?consumer[s]? of Hulu?s services because they did not?meet the statute?s definition of that term.? Under the VPPA, a ?consumer? is a ?renter, purchaser, or subscriber of goods or services from a video tape service provider.?? Hulu contended that this definition limited potential plaintiffs to those who had paid a video tape service provider for goods or services ? something the plaintiffs in this case had not done.? The court stated that although the terms ?renter? and ?purchaser? necessarily implied payment of money, the plaintiffs nonetheless were ?subscribers? because they had registered for Hulu accounts, received Hulu IDs, established Hulu profiles, and used Hulu?s services.?

The In re Hulu decision is only the most recent in a flurry of developments around this once-obscure statute.? In late 2011, the House of Representatives approved an amendment to the VPPA that would clarify perceived ambiguities in the statute around the procedure for obtaining a consumer?s consent to disclose his or her video viewing data.? And in March of this year, the Seventh Circuit dismissed a VPPA claim against Redbox, holding that there is no private right of action for violations of a provision in the statute limiting companies? ability to retain consumer information for extended periods of time.? The case came down a little more than month after Netflix agreed to settle a similar suit for $9 million.

Source: http://www.insideprivacy.com/united-states/the-federal-video-privacy-protection/

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