• by Wendy Davis  @wendyndavis, February 23, 2024

Two GameStop users can proceed with claims that the company violated the federal video privacy law by allegedly disclosing personally identifiable information about their video game purchases to Meta Platforms, a federal judge ruled Wednesday.

The decision, issued by U.S. District Court Judge Laura Taylor Swain in Manhattan, stemmed from a class-action complaint brought in August 2022 by Alejandro Aldana and Scott Gallie.

Both said they purchased games from GameStop such as "The Quarry" and "Lost Judgment," which included “video cut scenes” -- meaning recorded videos that players can view while playing interactive games.

Aldana alleged that GameStop uploaded revealed identifiable information about the games he purchased by uploading a customer list that included data about him to Facebook, while Gallie alleged that GameStop sent identifiable information to Facebook about the games he played online via the Meta Pixel -- a tracking tool used for analytics.

The plaintiffs claimed GameStop violated the federal Video Privacy Protection Act -- a 1988 statute that prohibits video companies from disclosing consumers' personally identifiable video-viewing history without their consent.

GameStop urged Swain to dismiss the complaint at an early stage for several reasons. Among other arguments, GameStop said the Video Privacy Protection Act didn't apply to companies like itself that sell video games.

The 36-year-old statute's text says its provisions apply to “video tape service” providers, defined as companies that rent or sell “prerecorded video cassette tapes or similar audio visual materials.”

GameStop argued that the video games it sells aren't comparable to a video cassette tape, even if those games contain “video cut scenes.”

“That certain video games may contain brief video scenes inserted into the game to help develop backstory does not alter a game’s nature and transform it into a movie, any more than a board game’s use of illustrations would convert the board game into a comic book, or a video advertisement for drills on Home Depot’s webpage would make it a movie theater,” the company wrote in a motion filed in November.

GameStop also said the allegations, even if proven, wouldn't show that it disclosed specific video-viewing information because disclosing the name of a game didn't necessarily reveal what videos a consumer watched.

“Unlike with a video tape rental or purchase, it is not reasonable to infer that a person who purchased a video game to play also watched the accompanying cut scenes,” the company argued.

Swain rejected that argument and essentially held that the allegations, if proven true, could support the conclusion that GameStop is covered by the federal privacy law because the games it sells contain prerecorded videos.

“The court concludes that plaintiffs have plausibly pled that GameStop is a 'video tape service provider' ... by alleging GameStop sold video games that include cut scenes,” she wrote.

GameStop is one of numerous companies to recently face suit for allegedly violating the federal video privacy law. Other businesses hit with similar suits include streaming service Tubi, Dotdash Meredith's Allrecipes, WebMD and Gannett.