## Facts

- Hulu operated an online platform that streamed video content to users who could create free or paid accounts.
- Plaintiffs, Hulu account holders, alleged Hulu allowed third-party analytics, advertising, and social-media entities to track users’ activity on Hulu and through cookies.
- Plaintiffs alleged Hulu disclosed users’ video-viewing selections and identifying data to third parties without consent.
- Plaintiffs brought a consolidated putative class action asserting, among other claims, a violation of the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710.
- Hulu moved to dismiss the VPPA claim under Rule 12(b)(6), contending it was not covered by the VPPA, plaintiffs were not “consumers,” and any disclosure fell within the statute’s “ordinary course of business” exception.

## Issues

1. Whether an online streaming service plausibly qualifies as a “video tape service provider” under the VPPA.
2. Whether users of free, registered accounts plausibly qualify as VPPA “consumers” as “subscribers.”
3. Whether the alleged disclosures to third-party trackers are categorically exempt under the VPPA’s “ordinary course of business” definition at the pleading stage.
4. Whether the complaint plausibly alleges disclosure of VPPA “personally identifiable information.”

## Decision

- The court denied Hulu’s motion to dismiss the VPPA claim.
- The court held plaintiffs plausibly alleged Hulu was a “video tape service provider” because the VPPA covers delivery of “video cassette tapes or similar audio visual materials,” which can include modern digital delivery.
- The court held plaintiffs plausibly alleged “consumer” status because “subscriber” does not necessarily require payment and the complaint alleged users registered and maintained an ongoing account relationship for access to content and functions.
- The court declined to find the “ordinary course of business” exception applicable as a matter of law on the pleadings where the alleged disclosures involved tracking, marketing, and analytics, which do not obviously fit the statute’s limited definition.
- The court found the allegations sufficient at this stage that Hulu disclosed information linking users to specific videos along with identifying data, plausibly meeting the VPPA’s “personally identifiable information” requirement.

## Legal Principles

- VPPA coverage can extend beyond physical media to services plausibly delivering “similar audio visual materials,” including digital streaming, at least at the motion-to-dismiss stage.
- “Consumer” under the VPPA includes a “subscriber,” and an ongoing registered relationship for access to a service can satisfy “subscriber” status without payment.
- The VPPA “ordinary course of business” exception is narrowly defined (limited to debt collection, order fulfillment, request processing, and transfer of ownership) and may not be resolved against plaintiffs on the pleadings where alleged disclosures do not clearly fall within those categories.
- A VPPA complaint may proceed where it plausibly alleges disclosure of information that links an identified user to particular video-viewing choices, even if the precise boundaries of “personally identifiable information” remain for later stages.

## Conclusion

The court allowed the VPPA claim to proceed, finding plausible allegations that Hulu fell within the statute’s covered providers, that free account holders could be VPPA subscribers, and that the asserted third-party tracking disclosures were not categorically shielded by the VPPA’s narrow ordinary-course exception on a Rule 12(b)(6) record.


In re Hulu Privacy Litig., No. 11-03764, 2012 WL 3282960 (N.D. Cal. Aug. 10, 2012)