<b><i>Online Extra:</b></i> Hulu Lawyers Land Punch in Privacy Suit

The judge's 'wake' metaphor prompted a Monthy Python-inspired response of 'I'm not dead yet' from the plaintiffs' lawyer, Scott Kamber of KamberLaw.

But'arguments'from Hulu's lawyers at O'Melveny & Myers and Covington & Burling seemed to persuade Beeler.

O'Melveny & Myers partner Victor Jih argued Thursday that no evidence in the record suggests that Hulu knew that demographic information was being collected by Facebook regardless of whether users pressed the 'Like' button.

The Hulu case shows some of the difficulties plaintiffs have found applying the VPPA to modern streaming technology. The law, which was passed after a newspaper printed the rental history of Supreme Court nominee Robert Bork, made it illegal for a 'video tape service provider' to knowingly hand over a user's personally identifiable information. It carries statutory damages of $2,500 per violation.

Just what it means to 'knowingly' disclose user information was a point of contention between the parties that Beeler addressed early in Thursday's hearing. Hulu argued that it must have 'actual knowledge' of a disclosure to violate the VPPA. The plaintiffs claimed in their reply brief that they 'need only demonstrate that Hulu voluntarily provided user-specific information and videos watched.'

Beeler seemed ready to side with Hulu, over objections from plaintiffs lawyer Kamber that the company's argument amounted to a lawyer-driven abstraction of what was actually going on between Hulu and Facebook.

Hulu had to have knowledge that Facebook was getting its user IDs and viewing information broadcast back to it, he said, because the social network's entire business of placing targeted ads on Hulu's site relies on precisely that sort of data. 'For us to lose in this instance,' he said, would mean that Beeler wasn't 'making every reasonable inference in the plaintiffs favor.'

Had the plaintiffs brought their own affirmative motion for motion for summary judgment, he said, the burden of proof would have fallen on them. Here, the burden is on Hulu, he said.

As a final point, Kamber said Hulu had to have at some point become aware of its disclosures, possibly as a result of the lawsuit. He pointed in particular to the company's eventual move in the wake of the litigation to stop including the names of video titles in the URLs of viewing pages. Plaintiffs have argued that the adjustment, more than a year after the suit was filed, was made with an eye to compliance with the VPPA.

Beeler wasn't without sympathy to Kamber's argument. The information she's learned about web-tracking during the course of litigation, she said, has convinced her to use three separate browsers for different functions to shield her own privacy on the Internet.

Ross Todd'is a Senior Reporter with'The Recorder, the San-Francisco-based ALM sibling of'Internet Law & Strategy. He can be reached at'[email protected].

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U.S. Magistrate Judge Laurel Beeler said she didn't want February's hearing in a privacy suit against Hulu LLC to feel like 'a wake.' But the Northern District of California judge put the case on life support, at the very least, indicating that she's leaning toward knocking out the remaining claims in a 2011 suit under the Video Privacy Protection Act (VPPA).

Plaintiffs lawyers argue that Hulu broke the 1988 law, which bars the disclosure of users' viewing choices, by placing Facebook's 'Like' button on its video viewing pages. The placement resulted in users' viewing history and identities being transmitted to Facebook via browser cookies.

Beeler previously trimmed the lawsuit, knocking out claims last April related to Hulu's sharing of anonymized data with a metrics firm. In June she denied plaintiffs' first bid for class certification.

The judge's 'wake' metaphor prompted a Monthy Python-inspired response of 'I'm not dead yet' from the plaintiffs' lawyer, Scott Kamber of KamberLaw.

But'arguments'from Hulu's lawyers at O'Melveny & Myers and Covington & Burling seemed to persuade Beeler.

O'Melveny & Myers partner Victor Jih argued Thursday that no evidence in the record suggests that Hulu knew that demographic information was being collected by Facebook regardless of whether users pressed the 'Like' button.

The Hulu case shows some of the difficulties plaintiffs have found applying the VPPA to modern streaming technology. The law, which was passed after a newspaper printed the rental history of Supreme Court nominee Robert Bork, made it illegal for a 'video tape service provider' to knowingly hand over a user's personally identifiable information. It carries statutory damages of $2,500 per violation.

Just what it means to 'knowingly' disclose user information was a point of contention between the parties that Beeler addressed early in Thursday's hearing. Hulu argued that it must have 'actual knowledge' of a disclosure to violate the VPPA. The plaintiffs claimed in their reply brief that they 'need only demonstrate that Hulu voluntarily provided user-specific information and videos watched.'

Beeler seemed ready to side with Hulu, over objections from plaintiffs lawyer Kamber that the company's argument amounted to a lawyer-driven abstraction of what was actually going on between Hulu and Facebook.

Hulu had to have knowledge that Facebook was getting its user IDs and viewing information broadcast back to it, he said, because the social network's entire business of placing targeted ads on Hulu's site relies on precisely that sort of data. 'For us to lose in this instance,' he said, would mean that Beeler wasn't 'making every reasonable inference in the plaintiffs favor.'

Had the plaintiffs brought their own affirmative motion for motion for summary judgment, he said, the burden of proof would have fallen on them. Here, the burden is on Hulu, he said.

As a final point, Kamber said Hulu had to have at some point become aware of its disclosures, possibly as a result of the lawsuit. He pointed in particular to the company's eventual move in the wake of the litigation to stop including the names of video titles in the URLs of viewing pages. Plaintiffs have argued that the adjustment, more than a year after the suit was filed, was made with an eye to compliance with the VPPA.

Beeler wasn't without sympathy to Kamber's argument. The information she's learned about web-tracking during the course of litigation, she said, has convinced her to use three separate browsers for different functions to shield her own privacy on the Internet.

Ross Todd'is a Senior Reporter with'The Recorder, the San-Francisco-based ALM sibling of'Internet Law & Strategy. He can be reached at'[email protected].

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