<i>Online Extra:</i> Hulu Loses Bid to Short Circuit Privacy Case

Beeler has already ruled that Hulu meets the definition of a “video tape service provider.”

Class counsel led by Parisi & Havens, KamberLaw and Strange & Carpenter allege that Hulu disclosed its users' viewing selections to Facebook and to metrics company ComScore. Hulu says it transmits only anonymized information to ComScore, but plaintiffs say it would be easy enough for ComScore to reverse-engineer individual identities.

Even if that were true, Hulu's attorneys at O'Melveny & Myers argued in their'motion for summary judgment, Hulu users can't show they're “aggrieved” under the VPPA because they haven't shown any injury. When asked at deposition how they'd been harmed, class members responded simply that “my privacy has been violated.”

On Friday, Beeler ruled that is enough. Hulu had cited'Sterk v. Best Buy, a Northern District of Illinois decision that said consumers could not sue a Best Buy store for revealing video rental information to parent company Best Buy Co. Beeler ruled that'Sterk'is inconsistent with Ninth Circuit case law on injury-in-fact. In another case involving the same plaintiff,'Sterk v. Redbox Automated Retail,'Judge Richard Posner's reasoning for the Seventh Circuit supported the conclusion that disclosure is an injury, Beeler added.

“The issue in this motion is whether'assuming an unauthorized disclosure in violation of the VPPA'Plaintiffs must show “actual injury” evidence beyond the unauthorized disclosure as a prerequisite to obtaining any damages (actual or statutory),” Beeler wrote. “The court holds that they do not.”

A similar suit against Netflix settled last year for $9 million.

Scott Graham writes for The Recorder, the San Francisco-based ALM sibling of Internet Law & Strategy. He can be reached at'[email protected].

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Users of video streaming site Hulu do not have to prove they were actually injured by disclosure of their viewing habits to win statutory damages under a 1980s video privacy law, U.S. Magistrate Judge Laurel Beeler ruled on Dec. 20.

“The plain language of the statute shows that Congress considered a consumer to be an 'aggrieved person' under the [Video Privacy Protection Act] if a video tape service provider wrongfully discloses that consumer's personally identifiable information,” Beeler wrote,'denying summary judgment'in'In re Hulu Privacy Litigation.

It's the latest Northern District opinion on the issue of damages in a privacy case. But class counsel in'Hulu'are in a strong position because the video law ' enacted in 1988 after a Supreme Court nominee's Blockbuster video rentals were disclosed in a newspaper article ' specifically provides a minimum $2,500 in liquidated damages per violation.

Beeler has already ruled that Hulu meets the definition of a “video tape service provider.”

Class counsel led by Parisi & Havens, KamberLaw and Strange & Carpenter allege that Hulu disclosed its users' viewing selections to Facebook and to metrics company ComScore. Hulu says it transmits only anonymized information to ComScore, but plaintiffs say it would be easy enough for ComScore to reverse-engineer individual identities.

Even if that were true, Hulu's attorneys at O'Melveny & Myers argued in their'motion for summary judgment, Hulu users can't show they're “aggrieved” under the VPPA because they haven't shown any injury. When asked at deposition how they'd been harmed, class members responded simply that “my privacy has been violated.”

On Friday, Beeler ruled that is enough. Hulu had cited'Sterk v. Best Buy, a Northern District of Illinois decision that said consumers could not sue a Best Buy store for revealing video rental information to parent company Best Buy Co. Beeler ruled that'Sterk'is inconsistent with Ninth Circuit case law on injury-in-fact. In another case involving the same plaintiff,'Sterk v. Redbox Automated Retail,'Judge Richard Posner's reasoning for the Seventh Circuit supported the conclusion that disclosure is an injury, Beeler added.

“The issue in this motion is whether'assuming an unauthorized disclosure in violation of the VPPA'Plaintiffs must show “actual injury” evidence beyond the unauthorized disclosure as a prerequisite to obtaining any damages (actual or statutory),” Beeler wrote. “The court holds that they do not.”

A similar suit against Netflix settled last year for $9 million.

Scott Graham writes for The Recorder, the San Francisco-based ALM sibling of Internet Law & Strategy. He can be reached at'[email protected].

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