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Mollett v. Netflix, Inc.

United States Court of Appeals, Ninth Circuit

July 31, 2015

MEGHAN MOLLETT and TRACY HELLWIG, individually on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
NETFLIX, INC., a Delaware Corporation, Defendant-Appellee

Argued and Submitted, February 6, 2015, San Francisco, California

Appeal from the United States District Court for the Northern District of California. D.C. No. 11-cv-01629-EJD-PSG. Edward J. Davila, District Judge, Presiding.

SUMMARY [**]

Video Privacy Protection Act

The panel affirmed the dismissal of claims brought under the Video Privacy Protection Act and California Civil Code § 1799.3 against Netflix, Inc., a subscription videostreaming service.

The panel held that Netflix did not violate these statutes by permitting certain disclosures about subscribers' viewing history to third parties--specifically subscribers' family, friends, and guests. The panel concluded that the complained-of disclosures were lawfully made to Netflix's own subscribers and, therefore, were not actionable under the VPPA or the California Civil Code.

Rachele R. Rickert (argued), Francis M. Gregorek, Betsy C. Manifold, and Marisa C. Livesay, Wolf Haldenstein Adler Freeman & Herz LLC, San Diego, California; Mary Jane Fait and Theodore B. Bell, Wolf Haldenstein Adler Freeman & Herz LLC, Chicago, Illinois, for Plaintiffs-Appellants.

Keith E. Eggleton (argued), Rodney G. Strickland, Jr., Brian M. Willen, and Jessica L. Snorgrass, Wilson Sonsini Goodrich & Rosati, Palo Alto, California, for Defendant-Appellee.

Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Raymond J. Dearie, Senior District Judge.[*]

OPINION

DEARIE, Senior District Judge

Plaintiffs-Appellants Meghan Mollett and Tracy Hellwig appeal the district court's dismissal of their claims against Defendant-Appellee Netflix, Inc. (" Netflix" ), a subscription video streaming service, for violations of the Video Privacy Protection Act (" VPPA" ), 18 U.S.C. § 2710, and California Civil Code § 1799.3. On behalf of themselves and other similarly-situated Netflix subscribers, Plaintiffs allege that Netflix violated these statutes by permitting certain disclosures about their viewing history to third parties--specifically, subscribers' family, friends, and guests. We conclude, however, that the complained-of disclosures were lawfully made to Netflix's own subscribers and, therefore, are not actionable under the VPPA or the California Civil Code. We affirm the decision of the district court.

I.

Netflix is the world's largest subscription service for viewing movies, television programs, and other video content. The company launched in 1999 as an online DVD rental service that delivers DVDs to subscribers through the mail, and expanded in 2007 to allow subscribers to stream videos instantly online. As of the filing of Plaintiffs' complaint, Netflix had more than 20 million subscribers; approximately 48 percent use the service's instant streaming feature.

To become a Netflix subscriber, a consumer must create an account on Netflix's website. As part of the account setup, a consumer must create a password, which she must enter whenever logging into the account. Once a subscriber has an account, she can begin ordering videos. Depending on the type of account the subscriber purchased, she can either order DVDs for home delivery or stream videos instantly over the Internet, or both. To ease the ordering of DVDs for home delivery, a subscriber can create a list of DVDs that she wishes to view. That list is known as the " queue." Depending on the terms of subscription, Netflix mails one or more of the ...


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