D.C. Circuit Weighs Whether Online Video Service Providers Fall Under VPPA

“You're very confident that your client is a consumer,” said Judge Arthur Randolph to Joshua Hammock, who argued on behalf of the plaintiff. “But one of the things you leave out in that equation … is whether the Washington Examiner is a videotape service.”

The case began in February 2023 when plaintiff Nicole Pileggi filed a class action complaint against the Washington Examiner, alleging that the newspaper shared users’ private video viewing information from its online site with Facebook without consent, in violation of the VPPA. In a motion to dismiss the case, the Examiner argued that Pileggi's claims didn't violate the VPPA because the newspaper is not a modern-day equivalent of a video service provider like Blockbuster.

In oral argument Thursday, the judges appeared to side with the Examiner. “Your argument, with respect to that question, stresses the ‘video’ part of that ‘videotape service provider,’” Randolph continued. “What happened to the word tape? It seems to me that that's just as important as, maybe even more important functionally, than the video part. It’s an object. It's a physical object.”

Hammock disagreed. “I don't think any court has held that it has to be similar in terms of physicality,” he said. “I think it has to be similar in terms of delivering video.”

Though Randolph expressed sympathy for the plaintiff’s attorney, he didn't appear convinced of the argument. “It does also seem to me that what we have here is a statute that technological developments has rendered obsolete, and Congress really hasn't attended to it,” he said. “I don't see why the statute ought to be a living statute for the judiciary to try to adjust it to technology that is rendered as obsolete.”

Judge Robert Wilkins questioned what the term subscriber meant and whether Pileggi counted as one, as she only subscribed to an Examiner newsletter. “You're saying that ‘subscriber’ is an unambiguous term?” he asked Hammock. “There are some definitions that say the subscriber has to be a purchaser, and then there are some definitions that don't mention purchase. So why doesn't that make it ambiguous?”

Randolph also weighed whether the original definition of the term could apply in today’s world. “Netflix completely changed the game, precisely because they created this whole subscription method of renting DVDs,” he said. “It didn't mean that subscribing was the same as renting, and that it was a particular type of renting ... It's just a different way of selling.”

Judge Patricia Millett also asked about the definition of the term subscriber, in a question to Grace Knofczynski, arguing for the Washington Examiner. “There's a dictionary definition that defined subscribe as ‘to receive a periodical or service regularly on order,’” which does not connote a payment, she said.

“It's not goods or services of a video service provider, it is goods or services from a video service provider,” Millett said. “And isn't the assumption that the good or service ... from a video service provider, [is] going to be video services?”