After years of lying dormant, the Video Privacy Protection Act (VPPA) has recently had quite a resurgence. Plaintiff’s lawyers have expanded the application of the 1988 statute, originally aimed at video rental stores, to many facets of modern technology. While they have been successful applying the VPPA to streaming and other online video platforms, it seems that movie theaters are a bridge too far.
Plaintiffs allege that movie theaters violate the VPPA by installing tracking pixels on their websites, such as Meta Tracking Pixel, TikTok Tracking Pixel, TradeDesk Tracking Pixel, AdRoll Tracking Pixel, and Google Ad Services and Analytics, to track user activity. Specifically, when purchasing a movie ticket or watching a movie trailer on a movie theater’s website, the individual’s web activity (i.e., the movie they purchased tickets for or trailer they watched) is captured by tracking technology and sent to a third party along with their personally identifiable information (“information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider,” 18 U.S.C. § 2710(a)(3). An example would be Facebook ID.). The plaintiffs claim that movie theaters use this information to prepare targeted advertising in violation of the VPPA.
Indeed, most movie theaters have collected this information and sold it to third parties, who use it to direct targeted advertising. So, if you have purchased a ticket online to see Barbie, you’ve probably seen ads for a variety of pink-themed merchandise or “I’m just Ken” T shirts show up on your Instagram feed. However, that does not mean the theaters have violated the VPPA. To the contrary, courts are consistently holding that the VPPA is not intended to apply to movie theaters selling tickets online.
In 1988, Congress enacted the VPPA in response to the Washington City Paper obtaining and publishing then Supreme Court nominee Robert Bork’s video rental history without his knowledge or consent. According to the Senate Report accompanying the law's passage, Congress passed the Act “to preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.” S. Rep. No. 100-599, at 1 (1988). As such, the VPPA creates a private right of action by prohibiting “video tape service providers” from disclosing a “consumer’s” video rental history without their express consent. 18 U.S.C. § 2710. It is a narrowly drawn law that applies discretely to “consumers” of a “video service provider”. 18 U.S.C. § 2710(a).
Whether the plaintiff is a “consumer” within the meaning of the VPPA is the threshold issue to any claim under the VPPA. However, it cannot be answered without determining whether the defendant movie theater is a “video tape service provider.” The VPPA narrowly defines a “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider,” 18 U.S.C. § 2710(a)(1), and a “video tape service provider” as “any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” Accordingly, if the defendant is not a “video tape service provider” then the plaintiff is not a “consumer.”
In two Ninth Circuit cases, Osheske v. Silver Cinemas Acquisition Co. and Garza v. Alamo Intermediate II Holdings, LLC, the plaintiffs asserted that the defendant movie theater operators violated the VPPA by disclosing their personally identifiable information collected when they purchased tickets to view movies at the defendants’ theaters on the theaters’ websites. (Editor’s note: The authors represent Alamo in the Garza case.) While their factual allegations were accurate, the problem with their cases is that movie theaters do not fit the VPPA’s definition of a video tape service provider. To get around this barrier, the plaintiffs argued that movie theaters “sell” movie tickets pursuant to which “consumers” “rent” access to a pre-recorded audio-visual material (a movie) “delivered” by the movie theater on the big screen. Notably, neither plaintiff alleges that they watched any video content on the movie theaters’ websites.
Both courts rejected the plaintiffs’ interpretation of the VPPA and held that movie theaters are not “video tape service providers” because “[m]ovie theaters do not rent movies, sell movies, or deliver movies; they ‘show’ movies." See Osheske v. Silver Cinemas Acquisition Co., No. 222CV09463HDVJCX, 2023 WL 8188464, at *3 (C.D. Cal. Oct. 31, 2023); see also Garza v. Alamo Intermediate II Holdings, LLC, Northern District of California, Case No. 23-cv-05849-VC, Doc. No. 31.
In Osheske v. Silver Cinemas Acquisition Co., the United States District Court for the Central District of California explained Osheske, 2023 WL 8188464, at *4 “[o]f course, movie theaters do sell; but, they do not sell (or even rent) audio visual materials. When consumers purchase a movie ticket, they are purchasing a license to enter the theater premises at a particular time and, in effect, attend a public event. . . Similarly, to say a movie theater “delivers” movies is to stretch the natural meaning of the verb beyond recognition.” Id. (internal citations omitted)(emphasis in original). Put simply, movie theaters are not “video tape service providers” within the meaning of the VPPA. Even if the court were to ignore the ordinary meaning of the words “rent,” “sell” and “deliver”, the VPPA’s legislative history reinforces the fact that the statute does not apply to movie theaters. “Congress was concerned with protecting privacy around what people chose to watch in the privacy of their own homes. . . There is nothing in the legislative record to indicate or even suggest that the VPPA was intended to cover public acts.” Id. (emphasis in original).
In Garza v. Alamo Intermediate II Holdings, LLC, the United States District Court for Northern District of California reached a similar conclusion and expanded on the plaintiff’s misuse of the term “deliver”. In Garza, the plaintiff offered two definitions for the term “delivery.” First, “the act of ‘sending something to an intended destination’ (the same way a pitcher might deliver a fast ball)” and, second, that “‘delivery’ is a catchall term that refers to the act of ‘producing a promised result’ (the same way a quarterback might ‘deliver’ in the clutch).” P. 2-3. Neither of these definitions comport with the VPPA. “[T]he [VPPA] refers to the delivery of a specific kind of good (‘audiovisual materials’), not the delivery of a result or outcome.” P. 2. “It would be quite a stretch to say that movie theaters ‘send’ movies by projecting them onto a screen.” Rather, “‘[d]elivery usually refers to the act of ‘bringing’ something to a particular person or place. . . [M]ovie theaters do not ‘bring’ movies to any person or place-people go to the movies, not the other way around.” P. 2. A movie theater is not a “video tape service provider” and a person purchasing a movie ticket on a movie theater’s website or watching a trailer is not a “consumer” as defined by the VPPA.
The United States District Court for the District of Minnesota came to a different result in a case involving a plaintiff who watched movie trailers and purchased movie tickets on the defendant’s website. Christopherson v. Cinema Ent. Corp., No. 23-CV-3614 (JWB/LIB), 2024 WL 1120925, at *1 (D. Minn. Mar. 6, 2024), Christopherson v. Cinema Ent. Corp., No. 23-CV-3614 (JWB/LIB), 2024 WL 1120925, at *2-3 (D. Minn. Mar. 6, 2024). Under the circumstances, the Christopherson court held that it cannot limit the applicable authority to Osheske, where the plaintiff only purchased movie tickets on the defendant movie theater’s website. Id., at 3. “Plaintiff's allegations regarding Defendant's purported violations of the VPPA relate to Defendant's website, including the allegation that Defendant provided personally identifiable information regarding consumers who viewed movie trailers on Defendant's website.” Id. In other words, the streaming element renders Christopherson distinct from Osheske and Garza, and therefore, authority from other courts where plaintiff’s streamed pre-recorded audio-visual materials on a defendant’s website are applicable. Id.
Streaming cases are often analyzed by applying what is referred to as the “Vizio line of cases.” In re Vizio, Inc., Consumer Priv. Litig. 238 F. Supp. 3d 1204, 1222 (C.D. Cal. 2017)is the seminal case in which the Central District of California held that Vizio, Inc., the manufacturer of smart televisions, is a video tape service provider within the meaning of the VPPA because consumers streamed video content through Vizio’s Internet Apps and Internet Apps Plus. In reaching this conclusion, court promulgated a two-part test to determine whether a defendant is a videotape service provider within the meaning of the VPPA as follows: (i) a defendant must be “engaged in the business … of … delivery of” video content and (ii) the defendant’s product must not only be substantially involved in the conveyance of video content to consumers but also significantly tailored to serve that purpose. Id., at 1221. The court reasoned that the VPPA is “medium neutral;” the medium at issue in Vizio was streaming. Accordingly, streaming providers are video tape service providers under the Vizio test. However, the Vizio line of cases does not apply to movie theaters where the element of streaming is absent.
Notices of appeal have been filed in Osheshke and Garza. The factual differences between the Ninth Circuit cases and Christopherson will likely guide the courts’ determinations.
