• by Wendy Davis  @wendyndavis, April 19, 2012

Web video company Hulu is asking a court to dismiss a privacy lawsuit stemming from the company's involvement with analytics company KISSmetrics, which allegedly used "supercookies" to track people.

Hulu says that the consumers who filed suit can't show they were injured by the alleged tracking. "Courts repeatedly have held that the collection or sharing of an individual’s personal information does not constitute a loss to that individual," Hulu argues in a motion filed recently with the U.S. District Court in San Francisco.

Trial judges in other online privacy cases have reached different decisions about what type of harm consumers need to show to proceed with lawsuits. Several judges have dismissed privacy lawsuits against Web companies, including Facebook and Apple, on the ground that consumers had not demonstrated they suffered tangible harm.

Other judges have allowed privacy lawsuits to proceed in the absence of clear economy injury.

Most recently, U.S. District Court Judge Edward Davila in San Jose, Calif. allowed San Francisco resident Paloma Gaos to continue her lawsuit against Google for allegedly passing along her name in "referrer headers" -- the information that is automatically transmitted to sites that users click on when they leave Google.

The lawsuit against Hulu dates to last summer, when researchers reported that KISSmetrics was using ETag technology to track people even when they deleted their cookies. ETags store information in users' browser caches, so that even when users erase their cookies, the information contained in them can be recreated.

Until KISSmetrics revised its practices last year, the only way for users to avoid its ETag tracking was by clearing their browser caches between each Web site visit or installing the AdBlock Plus extension.

Hulu was among the companies that worked with KISSmetrics; dozens of others also face litigation stemming from their deals with the analytics company.

Among the claims against Hulu is an allegation that it violated the federal Video Privacy Protection Act, which prohibits "video tape service providers" from disclosing information about consumers' movie-viewing history without their written permission.

Hulu contends that it does not fall within the 24-year-old law's definition of a video tape service provider because it's not a brick-and-mortar rental store. "Had Congress intended to regulate businesses that dealt in digital content rather than just those that dealt in physical objects, it would have defined video tape service provider to include businesses that traffic in audio-visual information or data."

Congress passed the Video Privacy Protection Act in 1988, after a newspaper in Washington obtained and published the video rental records of Supreme Court nominee Robert Bork.

While the law predates the Internet era, Netflix and other online companies have been sued for allegedly disregarding the statute. Netflix recently agreed to pay $9 million to settle a lawsuit accusing it of violating the video privacy law.