Recent Video Privacy Protection Act Cases Clarify Liability, Lawyers Say
As conflict over the scope of the Video Privacy Protection Act (VPPA) continues, some plaintiffs are becoming more creative in how they can apply the videotape-focused statute from 1988. Recently, that's centered on video games. But as Perkins Cole lawyers blogged about an Aug. 7 ruling of the U.S. District Court for Central California, “simply purchasing a game doesn’t unlock the door to a VPPA claim.”
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Lawyers Anna Thompson-Lanners and Nicole Menaldo said the court "held that plaintiffs must do more than just allege a game purchase -- they need to show the game actually contains ‘cut scenes’ or other prerecorded video content to even" make a VPPA claim.
A cut scene is a prerecorded video clip that advances the game's story, which, some argue, constitutes prerecorded video materials, thus making the game purchase subject to the VPPA (see 2501100009).
In the case, Garcia v. Bandai Namco Entertainment America Inc., the plaintiff alleged that a Meta tracking pixel was installed in the video games it purchased from Bandai's site, adding the pixel collected information for targeted advertising purposes.
In addition, the plaintiff claims his identity and the names of the video games he viewed and bought were shared via the tracking pixel without his consent.
“The plaintiff’s complaint -- asserting that selling games makes the defendant a video tape service provider because games are ‘video materials’ -- was not enough,” the Perkins Cole lawyers said. “The plaintiff here did not allege that the games included cut scenes, nor did they supply functional evidence to support such a claim,” so “on this basis, the court dismissed the VPPA claim, signaling that mere game purchase allegations do not satisfy the VPPA’s requirements.”
While the plaintiff subsequently filed an amended complaint in an attempt to cure these deficiencies, “this decision provides important clarity on VPPA liability for video game publishers,” the lawyers said. “At the same time, the court stopped short of deciding whether simply alleging the presence of cut scenes in purchased video games would meet the VPPA’s requirements in this jurisdiction, leaving that issue for another day.”
There is a circuit split over definitions outlined in the VPPA, particularly what it means to be a consumer under the statute (see 2508190026). As such, the U.S. Supreme Court may review VPPA cases, including NBA v. Salazar, where the 2nd U.S. Circuit Court of Appeals widened the scope of VPPA (see 2503190047). Other recent court decisions have invoked the 'ordinary person' standard, which limits what counts as 'personally identifiable information' as the basis for a VPPA claim (see 2508200050).