9th Circuit Takes Narrow View of 'Video Tape' Provider in Video Privacy Act Case
The 9th U.S. Circuit Court of Appeals took a narrow view of what it means to be a videotape service provider under the Video Privacy Protection Act (VPPA) in an opinion Thursday in a case where a cinema shared a customer's information with Facebook. In the case, 23-3832, plaintiff Paul Osheske claimed Landmark Theater violated the VPPA.
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Osheske purchased a movie ticket from Landmark's website, and the company shared the name of the film, theater location and Osheske’s unique Facebook identification number with Facebook without consent. Osheske claimed this use of a tracking pixel violated the VPPA.
"Taken together, the phrase “rental, sale, or delivery” characterizes the exchange of a video product," Judge Margaret McKeown, who authored the opinion in case 23-3832, said. "It does not encompass the provision of shared access to film screenings ... Simply put, there has not been a transaction involving an exchange of video materials that qualifies as a 'rental, sale, or delivery.'”
The VPPA, approved in 1988, defines a "videotape service provider" as “any person, engaged in the business ... of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” Though Osheske argued that Landmark "delivers" films to customers, the 9th Circuit judges held "a straightforward construction of the statutory text" describes the exhange of a video product, not an in-theater experience.
The original case, 22-09463, was on appeal from the U.S. District Court for Central California. The appeal was argued before the 9th Circuit on Oct. 7.
There has been a wave of cases in recent years under the VPPA, and privacy lawyers predict that will continue (see 2501100009).
The U.S. Court of Appeals for the D.C. Circuit, in a recent oral argument for case 23-00345, also seemed to take a more narrow view of definitions in the VPPA (see 2502280051). In another case, 23-1147, the NBA asked the U.S. Supreme Court to review a landmark decision from the 2nd U.S. Court of Appeals that the basketball league said unfairly expanded the act's scope (see 2503190047).