Hulu was dealt a legal defeat last week by a U.S. district court, which rejected the online video streaming provider’s motion for dismissal of a class action lawsuit that accuses Hulu of violations of the 1988 Video Privacy Protection Act (VPAA). Filed with the U.S. District Court in San Francisco, the class action complaint contends that Hulu violated the VPAA in sharing users’ viewer histories with third parties without user consent. In its motion for dismissal, Hulu argued that any disclosures of user viewing history “were incident to the ordinary course of Hulu’s business” and were not covered by the VPAA as Hulu does not qualify as a “video tape service provider” under the tenets of the VPAA. Hulu also advised the court that its users cannot be classified as “subscribers” under the VPAA because its users do not pay for the service. Noting that the VPAA defines a video tape service provider as “any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale or delivery of prerecorded video cassette tapes or similar audio visual materials,” U.S. Magistrate Judge Laurel Beeler emphasized that the VPAA’s applicability to Hulu “turns on the scope of the phrase, ‘similar audio visual materials.’” That phrase, observed Beeler, “is about the video content, not about how that content was delivered.” To buttress her argument, Beeler cited the 2001 Oxford English Dictionary definition of “material” that predates the foundation of Hulu’s service and that refers to “text or images in printed or electronic form.” As such, Beeler ruled against Hulu’s motion, declaring that the dictionary definition of material “comports with the court’s ordinary sense of the definition of ‘audio visual materials.’” Rejecting Hulu’s claims regarding subscribership, Beeler further decreed that the term “subscriber” does not “necessary imply payment of money” and that “Hulu cites no authority suggesting any different result.”
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Court dismisses Hulu challenge against VPAA class action suit
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