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In re Hulu Privacy Litigation

United States District Court, N.D. California, San Francisco Division

March 31, 2015

IN RE: HULU PRIVACY LITIGATION

For Joseph Garvey, Individually, on Behalf of Themselves and All Others Similarly Situated, Plaintiff: David Christopher Parisi, LEAD ATTORNEY, Suzanne L. Havens Beckman, Parisi & Havens LLP, Santa Monica, CA; Scott A Kamber, LEAD ATTORNEY, David A. Stampley, Grace E. Tersigni, Scott A Kamber, PRO HAC VICE, KamberLaw, LLC, New York, NY; Azita Moradmand, Woodland Hills, CA; Deborah Kravitz, KamberLaw, LLC, Healdsburg, CA; Gretchen Arlene Carpenter, Strange & Carpenter, Los Angeles, CA; Joseph H Malley, PRO HAC VICE, Law Office of Joseph H. Malley, PC, Dallas, TX.

For Stacey Tsan, Individually, on Behalf of Themselves and All Others Similarly Situated, Plaintiff: David Christopher Parisi, LEAD ATTORNEY, Suzanne L. Havens Beckman, Parisi & Havens LLP, Santa Monica, CA; David A. Stampley, Grace E. Tersigni, Scott A Kamber, PRO HAC VICE, KamberLaw, LLC, New York, NY; Deborah Kravitz, KamberLaw, LLC, Healdsburg, CA; Gretchen Arlene Carpenter, Strange & Carpenter, Los Angeles, CA; Joseph H Malley, PRO HAC VICE, Law Office of Joseph H. Malley, PC, Dallas, TX; Scott A Kamber, KamberLaw, LLC, New York, NY.

For Susan Couch, individually on behalf of themselves and others similarly situated, Cristina Garza, individually on behalf of themselves and others similarly situated, Concepcion Jauregui, individually on behalf of themselves and others similarly situated, Silviano Moncada, individually on behalf of themselves and others similarly situated, Plaintiffs: Brian Russell Strange, Gretchen Arlene Carpenter, Strange & Carpenter, Los Angeles, CA; David A. Stampley, KamberLaw, LLC, New York, NY; Joseph H Malley, PRO HAC VICE, Law Office of Joseph H. Malley, PC, Dallas, TX; Scott A Kamber, KamberLaw, LLC, New York, NY.

For Joshua Wymyczak, Paul Torres, Plaintiffs: Gretchen Arlene Carpenter, Strange & Carpenter, Los Angeles, CA; David A. Stampley, KamberLaw, LLC, New York, NY; Joseph H Malley, PRO HAC VICE, Law Office of Joseph H. Malley, PC, Dallas, TX; Scott A Kamber, KamberLaw, LLC, New York, NY.

For Sandra Peralta, Plaintiff: David A. Stampley, KamberLaw, LLC, New York, NY; Gretchen Arlene Carpenter, Strange & Carpenter, Los Angeles, CA; Joseph H Malley, PRO HAC VICE, Law Office of Joseph H. Malley, PC, Dallas, TX.

For Hulu, LLC, Defendant: Randall W. Edwards, LEAD ATTORNEY, Amy Lucas, Brian J Finkelstein, Matthew David Powers, O'Melveny & Myers LLP, Los Angeles, CA; Robert Michael Schwartz, LEAD ATTORNEY, Victor Jih, O'Melveny Myers, Los Angeles, CA; Simon J. Frankel, LEAD ATTORNEY, Emily Johnson Henn, Covington & Burling LLP, Redwood Shores, CA.

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ORDER GRANTING SUMMARY JUDGMENT

[Re: ECF No. 230]

LAUREL BEELER, United States Magistrate Judge.

INTRODUCTION

The plaintiffs are viewers of online video content through Hulu, LLC's Internet-based service. They allege that Hulu wrongfully disclosed their video viewing selections and personal-identification information to a third party: specifically, the social-networking website, Facebook. The plaintiffs claim that Hulu thereby violated the Video Privacy Protection Act of 1988 (" VPPA" ), 18 U.S.C. § 2710. ( See generally 2d Am. Compl. -- ECF No. 83.)[1] The VPPA prohibits a " video tape service provider" from " knowingly" disclosing a user's " personally identifiable information" to third parties (with certain exceptions that do not apply here). See 18 U.S.C. § 2710. " The term 'personally identifiable information' includes information that 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).

Hulu has moved for summary judgment. (ECF No. 230.) It argues, in sum, that it did not " knowingly" send Facebook information that could identify Hulu users, and it did not know that Facebook might read the information that Hulu sent so as to yield " personally identifiable information" under the VPPA.

For the reasons elaborated below, the court grants Hulu's motion for summary judgment. In particular, the court finds dispositive the absence of any issue of material fact that Hulu actually knew that Facebook might combine information that identified Hulu users with separate information specifying which video that user was watching, so as to " identify] a person as having requested or obtained specific video materials." The court therefore dismisses the Second Amended Complaint (ECF No. 83) with prejudice.

STATEMENT

The basic facts about the parties, and how Hulu's and Facebook's services and software work and interact, are undisputed. The parties' disagreement concerns what Hulu knew, or did not know, about information that passed between Hulu and Facebook.

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I. THE PARTIES

Hulu provides on-demand, online access to television shows, movies, and other pre-recorded video content from networks and studios through its website, www.hulu.com. ( See generally 2d Am. Compl. -- ECF No. 83, ¶ ¶ 1, 17.) It offers a free service at hulu.com that allows users to watch video content on their computers. ( See ECF No. 178 -- Joint Statement of Undisputed Facts (" JSUF" ) #1.)[2] It also offers a paid service called " Hulu Plus" that has more content and allows viewers to watch Hulu content on other devices such as tablets and smart phones. (Yang Decl. -- ECF No. 125-6, ¶ ¶ 2, 6.) Plaintiffs Joseph Garvey, Sandra Peralta, Paul Torre, Joshua Wymyczak, and Evan Zampella each are all registered Hulu users. ( See 2d Am. Compl. ¶ ¶ 1-6.)

II. HOW HULU WORKS

Hulu pays license fees to studios, networks, and other rights holders to obtain the video content that it offers to its users. ( See Yang Decl. -- (Yang Decl. -- ECF No. 125-6, ¶ 10.) Hulu allows users to register for a free Hulu account. ( See JSUF #1.) A Hulu user does not need to register for a Hulu account to watch videos on hulu.com using a personal computer. ( See id. ¶ 4.) To register for a Hulu account, the user enters a first and last name, birth date, gender, and an email address. (JSUF #1.) Users are not required to provide their legal first and last name during registration. (JSUF #2.) In fact, Plaintiff Joseph Garvey registered for his Hulu account in a name other than his legal name. ( See JSUF #3.) Hulu does not verify the accuracy of the identifying information but stores it in a secure location. (Yang Decl. -- ECF No. 125-6, ¶ 6.) To register for Hulu Plus, the user must provide the same information as a registered Hulu user, along with payment information and a billing address. ( Id., ¶ 7.) Hulu assigned each new registered Hulu user a " User ID," which is a unique numerical identifier ( e.g., 50253776). (JSUF #6; see Tom Dep. -- ECF No. 157-11 at 37:9-38:12.)

Videos on hulu.com are displayed on a video player that appears on a webpage. Hulu calls these webpages " watch pages." ( See Yang Decl. -- ECF No. 125-6, ¶ 3; JSUF #24.) Hulu wrote and deployed the code for its watch pages. (Tom Dep. -- ECF No. 157-11 at 108:23-109:8, 175:9-16; Wu Dep. -- ECF No. 157-6 at 80-84.) The code downloaded to registered Hulu users' browsers when they visited a watch page so that the browser could display the requested web page or video content. (Tom Dep. -- ECF No. 157-11 at 112:19-113:5.) As described in more detail below, the code also allowed information to be transmitted to Facebook. Until June 7, 2012, the URL (uniform resource locator, meaning, the web address) of Hulu's watch pages included the name of the video on that page. For example, a watch-page URL might look like this:

http://www.hulu.com/watch/426520/saturday-night-live-the-californians-thanksgiving

The number 426520 in this URL is the video ID. (JSUF #24.)

In March 2009, Hulu began providing each registered user with a profile web page. (JSUF #9.) The first and last name the user provided during registration appears on the page and in the page title. (JSUF #10.) Hulu did not allow registered users to decline to share their first and last names on their public profile

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pages. Until August 1, 2011, a user's profile-page URL included the user's unencrypted Hulu User ID. (JSUF #12.) An example is:

http://www.hulu.com/profiles/u/[User ID]

where " [User ID]" is the Hulu User ID. Id. After August 1, 2011, the Hulu User ID was encrypted. (JSUF #13.) An example is:

http://www.hulu.com/profiles/u/wxu2RqZLhrBtVjYKEC_R4

( Id. ) Hulu did not provide a separate search function (for example, through a search box) to allow a user to use a Hulu User ID to find the profile page of another user. (JSUF #11.) On May 30, 2013, Hulu discontinued the user profile pages. (JSUF #14.)

Hulu makes money from advertising revenue and from monthly premiums paid by Hulu Plus members. (Yang Decl. -- ECF No. 125-6, ¶ 11.) Its main source of income is advertising revenue. ( Id. ) Advertisers pay Hulu to run commercials at periodic breaks during video playback. ( Id. ¶ 12.) Advertisers pay Hulu based on how many times an ad is viewed. ( Id. ¶ 13.) Hulu must thus gather information about its " audience size." ( Id. )

III. HOW HULU INTERACTS WITH FACEBOOK

Facebook collects information and processes content " shared by its users," and it provides that information to marketers ( See generally ECF No. 157-12 at 4, 6-9.) Facebook shares its members' information with marketers so that they can target their ad campaigns. ( See id. ) Marketers can " specify the types of users they want to reach based on information that users choose to share." ( Id. ) Advertisement revenue is how Facebook makes money. ( See id. )

In April 2010, Facebook launched its " Like" button; that August, Hulu added a Facebook Like button to each hulu.com watch page. (JSUF #18-19.) Certain information was transmitted from hulu.com to Facebook via the " Like" button. (JSUF #18.) Hulu wrote code for its watch pages that specified where the " Like" button should be located on the page and where (from facebook.com) to obtain the code that loads and operates the button. (JSUF #20.) When the user's browser executed this code, the browser sent the request to Facebook to load the Like button on the watch page. (JSUF #21.) Hulu sent Facebook the watch page's address, so that Facebook knew where to send code for the Like button so that it could be downloaded, displayed on the watch page, and used. ( See Wu Decl. -- ECF No. 230-5, ¶ ¶ 16-20, 25.) From April 2010 to June 7, 2012, the address for each watch page included the title of the video displayed on that watch page. ( See JSUF #18.) An example is the address containing the Saturday Night Live episode that was mentioned in the preceding section.

If the Hulu user had logged into Facebook using certain settings within the previous four weeks, the Like button would cause a " c_user" cookie[3] to be sent to

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Facebook; c_user contains (among other things) the logged-in user's Facebook user ID expressed in a numeric format. (JSUF #22; Calandrino Decl. -- ECF No. 280-7, ¶ 71.) An example is " c_user=55431124" ; Facebook can identify this number as a particular Facebook user. (Richard Decl. -- ECF No. 287-3, ¶ 40.) Hulu did not send Facebook the Hulu User ID or the Hulu ...


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