A dismissal bid submitted by Apple Inc. last week said that a New York Video Consumer Privacy Act (NYVCPA) suit accusing it of data protection abuses is totally unfounded. According to Apple, even despite the complaint’s substantive flaws, the consumer does not even have a private right of action under the NYVCPA, which aims to keep peoples’ video rental records private.
The suit, which was originally filed in state court, alleges that Apple rents streaming videos to consumers through its iTunes platform, thereby collecting “confidential and sensitive consumer information with respect to personal viewing habits.” According to the filing, the NYVCPA requires such companies to “destroy personally identifiable information as soon as practicable,” yet, Apple allegedly harms users by maintaining and storing their names, credit card numbers, billing and contact information, and moreover, video rental histories indefinitely.
The complaint seeks redress on behalf of New York-based iTunes users whose video watching preferences Apple retained for more than 90 days as well as statutory damages.
In last week’s motion, Apple argued that there are multiple, independent reasons why the Northern District of California court should toss the lawsuit. First among them is that Apple’s retention of personally identifying information is expressly protected by the law as part of its ongoing business operation.
Too, it allegedly benefits consumers by offering features like customized watching suggestions. As proof, Apple points to disclosures made in its terms of service reportedly establishing that customers are expressly told of the purposes for information retention and use.
Additionally, Apple told the court no private right of action exists. In support, the company said that “no court has ever recognized such a claim, and courts have repeatedly rejected analogous claims under the [federal] Video Privacy Protection Act (VPPA).”
Lastly, the defendant claimed that it does not fit into the statutory definition of “video tape service provider.” Instead, the company said it offers streaming services, in contrast to distributing “prerecorded video cassette tapes or similar audio visual materials, which inherently should be understood to involve physical media.”
The New York plaintiff is represented by Bursor & Fisher P.A. and Apple by O’Melveny & Myers LLP.
In March, the same plaintiff’s counsel brought a similar action against content HGTV for VPPA violations.
