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The Video Privacy Act of 1988 as Applied to the Adult Film Industry

While the existence of tube sites has transformed the adult film industry, there are still DVD rental businesses that provide such content. The records of such rentals are governed by the Video Piracy Act (“Act”).  In 1988, the United States Congress passed the Act to prevent “wrongful disclosure of video tape rental or sale records”. 18 U.S.C.A. § 2710. This act was passed as a reaction to the newspaper disclosure of the video rental records of the Supreme Court nominee Robert Bork. The Act requires companies that sell or rent video tapes to obtain written consent from consumers to disclose the consumers personally identifiable information, i.e., information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider. Companies may disclose the lists of consumer names and addresses only if they first give consumers an opportunity to opt-out of such information disclosure. The Act provides for liquidated damages in the amount of $2500. Under the Act, the video tape service providers are required to destroy the personally identifiable information within a year from the date the information is no longer needed for the business purpose in which it was obtained.

In 2008, a Texas woman sued Blockbuster, Inc. over the video rental company’s participation in the Facebook’s Beacon program. The lawsuit alleged that Blockbuster violated the provisions of the Video Privacy Protection Act of 1988 by sharing her video rental and sales records with Facebook without her permission. Facebook ended up terminating the Beacon program, and created a $9.5 million fund for privacy and security.

In 2009, an anonymous plaintiff filed a lawsuit against Netflix alleging that Netflix violated the Video Privacy Protection Act by disclosing personally identifying information derived from online activity of Netflix subscribers. This was done as a part of a contest which Netflix created to improve its movie recommendations. Contestants were given training data set and a qualifying data set. The testing data set consisted of 100 million subscriber movie ratings with each entry including a numeric identifier unique to the subscriber, movie title, movie year of release, date of subscriber rating, and the rating of one to five stars assigned by the subscriber. Such movie and rating data contains information of a highly personal and sensitive nature. Therefore, plaintiff, a lesbian mom joined the lawsuit as Jane Doe because her sexual orientation was not a matter of public knowledge.

Thus, although rarely invoked, the Video Privacy Protection Act prohibits video rental companies from disclosing to other parties any personally identifiable rental records of their customers without written consent from the customers. It is a critical part of the business model for any adult film production and/or distribution business that utilizes DVD rentals as part of its revenue stream.

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