• by Wendy Davis , Staff Writer @wendyndavis, May 14, 2013

In 2010, music service Pandora was one of the first companies to partner with Facebook for its earliest iteration of the “instant personalization” program -- which automatically shared logged-in Facebook users' names and photos with outside companies.

People could always opt out of instant personalization, but when Facebook launched the feature it operated by default -- which blindsided some users. One user, Michigan resident Peter Deacon, sued. He said Pandora wrongly disclosed his music-listening history to all of his Facebook contacts that also used Pandora.

Deacon argued in a potential class-action lawsuit that the integration violated Michigan's Video Rental Privacy Act. That law prohibits companies that rent, lend or sell music (as well as books and videos) from disclosing customers' identities without their consent.

But last year, U.S. District Court Judge Saundra Brown Armstrong in Oakland, Calif. ruled that Michigan's law -- which is more than 20 years old -- doesn't apply when companies stream tracks. She said the law only applies to companies that lend, rent or sell material.

Notably, at around the same time, a different judge recently ruled against Hulu in a privacy lawsuit accusing it of violating the federal law by sharing Web users' information with ad networks and analytics companies.

Hulu argued that it wasn't covered by the federal privacy law, which said it applied to "videocassettes" and "similar audiovisual materials." But U.S. Magistrate Judge Laurel Beeler in the Northern District of California ruled that the 24-year-old federal law was aimed at protecting the privacy of people who watch video -- regardless of technical format.

It's true that the federal law is worded differently from Michigan's state law, but the privacy principles underlying the two statutes are similar. A different court might well have looked more closely at the principles behind the Michigan law when deciding whether it should cover streaming music.

Deacon is now asking the 9th Circuit Court of Appeals to reverse Armstrong's decision. In appellate papers quietly filed late last month, Deacon says that Armstrong “ignored the commonly accepted, everyday meanings of the terms rent and lend,” when deciding that Pandora's streams weren't covered by the law.

“By refusing to grant Pandora’s customers the [Michigan law's] protections, the District Court failed to give effect to the Act’s broad remedial purpose of protecting individuals’ choices in movies, music, and reading material from unwanted public disclosure,” he argues.