Hulu had claimed that the final complaint under the VPPA should also be dismissed, suggesting that since the plaintiffs had not explained which videos they watched nor how their information was disclosed to third parties, they could not prove injury and thus could not establish standing. It also claimed that VPPA does not apply to online video services, and that its users are not protected as consumers since they do not pay for the service. But now the court has denied Hulu’s motion for dismissal, confirming that the Video Privacy Protection Act does indeed protects users’ online viewing habits.
VPPA was passed in 1988 following the public disclosure of Supreme Court nominee Robert Bork’s video rental records. It requires the user’s consent before such requests or purchases can be disclosed. The current dispute centers around whether this law applies to online video as well as the original tape cassettes of 1988, and whether a user taking ‘free’ views is legally a ‘consumer’. Now Judge Laurel Beeler has confirmed that it does and they are. “If Congress wanted to limit the word ‘subscriber’ to ‘paid subcriber,’ it would have said so,” ruled the judge.
The Electronic Frontier Foundation is delighted with the current outcome. The court, it says, has “confirmed what EFF has been arguing for quite some time: that this law protects users' online watching habits.” It goes on to warn, however, that the privacy protections under VPPA are in danger of being curbed through an amendment currently pending in Congress. The amendment would allow users to provide an electronic consent once to automatically share everything they watch with social networks. “This would allow,” says EFF, “for the so-called ‘frictionless sharing’ of online videos. But users have already expressed frustration with ‘frictionless sharing’ of articles and music because of their inability to control the sharing of their information.”
Hulu's mission, claims the company, “is to help people find and enjoy the world's premium video content when, where and how they want it.” It’s a free service. “Hulu is free and legal through an advertising supported model.” Its privacy policy makes clear that it has a relationship with Facebook. “When you connect your accounts, you authorize Hulu and Facebook to share certain information about you with each other,” it says.