1988 Video Privacy Protection Act rises up and bites Hulu

Credit: Source: Hulu

Way back in 2012 I wrote a post about why (at the time) you couldn't link your Netflix account to your Facebook account if you were in the US. It was due to a 1988 law, the Video Privacy Protection Act [VPPA], which prevented a company from sharing your video rental history.

The law was originally drafted in response to Supreme Court nominee Robert Bork’s video rental records were published in a news publication. From Wikipedia:

During debate over his nomination, Bork's video rental history was leaked to the press. His video rental history was unremarkable, and included such harmless titles as A Day at the Races, Ruthless People, and The Man Who Knew Too Much. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the Washington City Paper. Dolan justified accessing the list on the ground that Bork himself had stated that Americans only had such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988 Video Privacy Protection Act.

As originally written, a company such as Netflix couldn't even share your rental history with your approval. When I was writing about it back in 2012 it was being amended so that a consumer could 'opt-in' to sharing his or her history on social media (or elsewhere).

Now the VPPA is back and this time Hulu is in the line of fire. According to an article on GigaOm the company is being sued for violation of the VPPA by way of a Facebook "Like" button on its pages.

Seems odd doesn't it? If you click a Like button it seems to me you're opting-in to share your info, but U.S. Magistrate Judge Laurel Beeler disagrees with me. If I'm reading this correctly (disclaimer: I am not a lawyer) it all boils down to the fact that when you clicked that Like button it set a cookie that included the URL to your "Watch" page and the name of the video you were watching. (A "Watch" page seems to be any page on Hulu where a video plays.) That seems obvious, doesn't it? If I click the Like button on the page of a show or movie I'm saying I like that content; would you expect that info to be transmitted? I have to confess I'm confused by the case and by what the problem is with the way this all works.

Hulu tried to get this case dismissed last December, and now their request for summary judgement has been declined, meaning the case is set to go to trial, though GigaOm suggests the company will probably appeal or settle.

Am I the only one who gets steamed up about cases like this? The plaintiffs went to Hulu, decided to click a button that would tell their Facebook friends that they Liked a video, and now they're suing because, essentially, the button did exactly what they expected it to do.

If you're in favor of the plaintiffs and think Hulu should be made to pay for their transgressions (or even if you're seeing a nuance in the case that I'm overlooking), I'd love to hear your thoughts in the comments below. I openly admit a pro-Hulu bias in this particular instance; it seems like a bum deal to me.

Read more of Peter Smith's TechnoFile blog and follow the latest IT news at ITworld. Follow Peter on Twitter at @pasmith. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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