Hulu Reloads Against Privacy-Invasion Suit

(CN) - Hulu urged a federal judge to dismiss claims that it tells third parties what their subscribers watch without consent.

In their amended class action, six Hulu subscribers said the video site "repurposed" its browser cache so a marketing analyst service called KISSmetrics could store their private data.

The class also claims Hulu shared their private viewing choices with Facebook, Google Analytics, and other online market research and advertising companies.

Earlier this month, the class defended their claims against a motion to dismiss.

That brief, authored by attorney Scott Kamber, argued the lawsuit properly alleges an injury under the Video Privacy Protection Act (VPPA).

And even though the plaintiffs did not pay to use Hulu, Kamber says they qualify as "consumers" under the meaning of the statute because the dictionary defines a subscriber as someone who signs up using personal information.

"The issue in the VPPA is not the form or method of video delivery," the brief states. "Rather, the statute concerns the protection of records about the subscriber and what the subscriber viewed."

"Given its purpose, there is no basis to argue that the online transfer of video content falls outside the purview of the Act," he added.

The VPPA was passed in 1988 after a Washington, D.C., newspaper published the video-rental history of Supreme Court nominee Robert Bork.

In a new filing Thursday, Hulu argued that the class had abandoned six of its seven claims dealing with privacy, computer fraud and negligence, and that the San Francisco court should dismiss those claims with prejudice.

The other claim under the VPPA should also be dismissed for a number of reasons, O'Melveny & Myers attorney Randall Edwards argued.

Edwards says the plaintiffs cannot prove injury, and thus cannot establish standing, because they have not explained which videos they watched, or how their information was disclosed to third parties.

The VPPA also permits disclosure to third parties as an "ordinary course of business," the brief states.

"Plaintiffs admit that Scorecard Research, Google Analytics, Doubleclick, and Quantcast all provide analysis of hulu.com's website visitors or provide advertising to users on Hulu's behalf - the Internet equivalent of using computer services and similar companies for marketing to customers," Edwards wrote.

Hulu maintains that it is not a "video tape service provider" under the VPPA, and that the law "has consistently been applied to institutions that provide access to physical media."

Since people who access Hulu do not necessarily subscribe to the service, Edward also argued that the class could not qualify as consumers under the statute.

"Concluding, as plaintiffs suggest, that 'consumers' under the VPPA include those who merely visited hulu.com without the payment of any money would dramatically enlarge the category of 'consumers' regulated by the statute," Edwards wrote.

"This would be akin to saying that anybody who walked into a video rental store and watched a few minutes of video on an overhead television set, even if they didn't rent any videos or become a member, would be a 'consumer' of that video store."

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