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Boston Globe to judge: We're not in the video business and we're not sending personal data to Facebook, so throw this lawsuit out, please

A man who alleges bostonglobe.com is sending his personal data to Facebook via videos on the site is full of it, the Globe says, in more legalistic terms, in its response to his suit over the alleged practice.

David Ambrose of Irvine, CA filed what he hopes will become a class-action suit against the Globe in February, alleging that when he signed up for a bostonglobe.com subscription, he never consented to having a Facebook "tracking pixel" send information to the Facebook mothership whenever he played a video on the Globe site, and that this violates his privacy under the federal law passed after a reporter fished Robert Bork's video-rental records out of his trash.

For starters, the Globe's lawyers write in a rebuttal submitted last week, the Bork law was intended to protect the privacy of customers of companies that primarily distribute videos. And while the Globe runs videos with some of its stories, it is not in the video production business - it does not produce or sell anything remotely like the VCR tapes whose consumers the law was intended to protect.

This case is the latest in a flurry of similar lawsuits advancing a hyper-aggressive theory to contort the Video Privacy Protection Act ("VPPA")—a law designed to prevent prying into people’s video rental history—into something it never was intended to be: a stealthy catch-all federal privacy law that can ensnare any unsuspecting internet site that contains any form of video content. The same law firm that filed this case seeks to stretch the scope of the VPPA to cover live sports, gifs, online purchases of tickets to attend public movie screenings, snippets of online battles among video-game characters, and, in this case, short video clips in or near news articles. The goal is as clear as it is improper: to use the ubiquity of video on the internet and the VPPA’s high statutory damages to leverage hefty settlements from sites that offer any type of video, even where the videos are not available for individual purchase but are instead an incidental part of a newspaper subscription.

The rebuttal continues:

What makes these attempted extensions of the VPPA so inappropriate is these are not situations where new technology requires extending the reach of the VPPA beyond 1980s technology to cover advances in movie delivery, like DVDs (1997), or streaming video (2007). Such an extension to cover new methods of delivering movies like the ones Judge Bork rented in 1987, would be fair. But when Congress enacted the VPPA in 1988, it did so to address a narrow problem—the privacy of information about the selection and home viewing of movies. Congress did not include within the scope of the statute information about consumption of other types of media offerings, like books, magazines, records, newspapers, computer games, radio programming or television. Congress was certainly aware of these forms of content—and excluded all of them, including news reporting—from the VPPA's scope. Congress was also aware of such material when it amended the VPPA in 2013 and chose not to expand the scope of the statute's coverage. The idea that consumption of news is private information if delivered by internet videoclips, but not if delivered via newsprint, radio, live TV, or email is nonsensical and inconsistent with the VPPA's text and intent. For the same reason the VPPA covers movies, whether delivered on 1980s videotapes, laserdiscs, or streaming over the Internet, it does not cover newspapers in any form, whether delivered on printed paper, video clips, or podcasts.

And, in any case, the law applies specifically to companies in the business of video sales, and that's not the Globe:

The Globe is in the business of selling subscriptions that fund its journalism and provide access to news articles—delivered both digitally and in newsprint. That a small fraction of the articles on bostonglobe.com are accompanied by a video, often embedded from another website, does not change the nature of the Globe's business. By contrast, consumers joined video stores (and now sign up for Hulu or Netflix) to rent or buy videos. Plaintiff does not allege the Globe offers separate video subscriptions or pricing on its website, or that users register with the Globe specifically to receive video content. The relatively scarce video content intermittently present on its website does not transform the Globe from a print news organization into a business "significantly tailored" to providing video content.

Also, Ambrose pointed to just two specific examples on the Globe site: One was in an embedded tweet, which the Globe did not create or control, the other a thumbnail of a video in a promo box on the right side of a story, but not connected to the story, the answer continues.

And, the Globe continues, Ambrose shows no proof that the Globe was, in fact, sending any information to Facebook.

Here, the non-conclusory facts in the complaint, even if taken as true, do not plausibly allege the Globe disclosed users' identities to Facebook along with the news clips they watched. Second, the complaint fails to adequately allege that any such disclosure was knowing—i.e, the Globe knew Facebook was using information it received to re-identify users.

Therefore, the Globe concludes (after much more legal reasoning and citations): The judge should throw the case out.

Free tagging: 
PDF icon Complete Globe answer to lawsuit487.67 KB

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A media company in 2022 is saying out loud that they're *not* in the video business?

Voting closed 9

They are saying they don't sell the videos specifically like, oh, Blockbuster used to do or Netflix does today, that the videos they do produce are only part of their main business: Producing news.

Voting closed 17