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NYLJ “Is GameStop the New Blockbuster? Court Considers VPPA Application to Tracking Pixel Technology”

By Steve Kramarsky and John Milson

Do you accept cookies? Anyone who has been using the web for more than a few years has probably noticed the proliferation of “cookie consent” language on banners and pop-ups across almost all websites. This isn’t just a coincidence; it is a response to a change in European law. The European Union’s General Data Protection Regulation (or GDPR) and the related ePrivacy Directive (sometimes called the “Cookie Law”) require that websites obtain and record user consent before tracking activity using the small bits of embedded website data called “cookies.”

The GDPR certainly has flaws, and it is by no means a complete solution to issues of online consumer privacy, but it is a unified system of privacy regulation in the EU “purpose-built” for the Internet—something that does not exist in U.S. law.

In the United States, there is no general right to data privacy, nor even a universally accepted definition of what “data privacy” might be. Consumer privacy online is governed by a patchwork of laws and regulations, many dating from before the web, which the courts have sometimes struggled to interpret and apply in the online context. Technology moves fast, and the law generally has to play catch-up. In the privacy context, the creation of entirely new kinds of data, and the ability to collect and analyze that material on a massive scale, have created new issues for privacy regulation.

And the stakes are high. The collection, use and analysis of personal data is central to the business models of many services we rely on every day, including some of the most highly-valued companies in the world. Often, that collection is beneath the surface, undetectable to many users, but can lead to real-world impacts, including targeted advertising and price discrimination.

A recent case out of the U.S. District Court for the Southern District of New York involved the application of the Video Privacy Protection Act (VPPA)—a statute passed in 1988 to prohibit the disclosure of information about video cassette tapes—to a novel category of visual art (video games), and a method of data collection that would have been science fiction to the statute’s drafters (the “tracking pixel”). Judge Laura Taylor Swain’s careful analysis of these issues, including whether video games are “similar audio visual material” to “video cassettes” for purposes of the motion to dismiss, is worth a look. Aldana v. GameStop, 2024 WL 708589 (S.D.N.Y. Feb. 21, 2024).

This article first appeared in the New York Law Journal on March 18, 2024. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. John Millson is counsel at the firm.


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