Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Broadening the Scope of Privacy Under the Video Protection Statute

By Jeffrey D. Neuburger
August 02, 2015

A recent case from the District of Massachusetts, Yershov v. Gannett Satellite Information Network, No. CIV. A. 14-13112-FDS, 2015 WL 2340752 (D. Mass. May 15, 2015), suggests a broadening of the view of subscriber privacy in the context of the delivery of video content over online platforms. The Video Privacy Protection Act (VPPA), 18 U.S.C. '2710 (2013), is the federal statute that governs the sharing of personally identifiable information (PII) in this context. Providers of online video need to understand the implications of the VPPA, and the associated case law, in order to conduct their businesses in a compliant manner. Providers that may be impacted include not only businesses that deliver video as part of their core services (e.g., Hulu, Netflix, etc.), but also publishers, social media platforms, and blogs, to the extent that they provide video content as part of a broader array of media offerings.

Digital technologies have dramatically changed the way we consume video content. But while we watch, we are being watched. Data collection and analytics have become integral parts of online video delivery business models. Ironically, while the technology allowing digital access to video has developed rapidly over the past few years, the law addressing the privacy of the information collected through these new technologies ' the VPPA ' has not. It is, in most part, unchanged from its enactment in 1988, when we were still largely living in an analog world.

The VPPA prohibits a “video tape service provider” from knowingly disclosing a consumer's PII to third parties absent the consumer's permission. 18 U.S.C. '2710(b)(1). At this point, it is uncontested that the term “video tape service provider” includes providers of online video. What is still subject to debate, however, is what constitutes PII for purposes of the VPPA. The statute defines PII as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. '2710(a)(3). The dramatic changes in technology and analytics associated with video delivery have made it particularly difficult for courts to apply this “pre-digital” definition to new, technologically-innovative applications. As a result, the contour of the VPPA as applied to these new contexts is still being shaped. This is illustrated by the recent decision in Yershov and its marked divergence from the rationale of prior decisions.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

The Benefits of Blockchain for e-Discovery and Data Preservation Image

As businesses across various industries increasingly adopt blockchain, it will become a critical source of discoverable electronically stored information. The potential benefits of blockchain for e-discovery and data preservation are substantial, making it an area of growing interest and importance.