Hulu’s attempt to dismiss a consolidated class action complaint alleging violations of the Video Privacy Protection Act (VPPA) failed when federal Magistrate Judge Laurel Beeler denied their motion on Friday.
The lawsuit (previous coverage) is one of a few that were filed over the use of re-spawning cookies (“supercookies”). In this case, the plaintiffs allege that their personally identifiable information was shared, without their knowledge or consent, with third parties that included online ad networks, metrics companies,and social networks such as Scorecard Research (“Scorecard”), Facebook, DoubleClick, GoogleAnalytics, and QuantCast.
Hulu’s arguments – all of which were rejected by the court – claimed that the plaintiffs did not have standing, a streaming service was not covered by the VPPA, and even if it was, the sharing of data was part of the firm’s “usual course of business,” and hence, did not violate the Act.
Their motion to dismiss also argued that the plaintiffs were not paid “subscribers” to their service. The VPPA talks about “consumers,” defined as renters, purchasers, or subscribers. Hulu argued – unsuccessfully – that the term “subscriber” should involve some payment, and since the plaintiffs hadn’t paid anything, they had no standing. The court disagreed.
In September 2011, Congressmen Markey and Barton asked the FTC to investigate the use of re-spawning cookies as a deceptive and unfair practice under the FTC Act. The FTC, however, has not taken any action that has been made public as of this date. .
In light of Hulu’s failure to get a dismissal of the lawsuit, can a settlement be far behind?
h/t, William McGeveran