8th Circuit Affirms That Movie Theaters Not Video Tape Service Providers
The 8th U.S. Circuit Court of Appeals affirmed a lower court decision Monday when it ruled that movie theaters are not video tape service providers under the Video Privacy Protection Act (VPPA), negating VPPA litigation brought against them.
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The complaint in case 24-3042, Christopherson v. Cinema Entertainment Corporation, dealt with claims that a movie theater violated the 1988 federal statute through its use of the Meta Pixel without user consent.
Gina Christopherson watched free movie trailers on the Cinema Entertainment website, and afterward, movie ads appeared on her Facebook page. She alleged the pixel tracked her activity on the theater website and shared it with Meta, which used the data for targeted ads.
“It should come as no surprise that Cinema Entertainment is not in the business of renting, selling, or delivering VHS or Betamax tapes, which are largely relics of the past,” said Judge David Stras, who authored the opinion. He and Judges Duane Benton and Steven Grasz heard oral argument in May. The question then becomes whether “providing movie screenings or web trailers … counts as the ‘rental, sale, or delivery of ... similar audio visual materials.’”
The use of the word similar means “we must interpret ‘audio visual materials’ by reference to the item that precedes it, ‘prerecorded video cassette tapes,’” Stras said. The word materials also matters, as “’materials’ like prerecorded video cassette tapes have a physical existence,” meaning they can be “touched; played on a home recorder; watched, rewatched, paused, rewound, and fast forwarded; and shared with family and friends.”
On the other hand, “going to a theater provides only a ticket, a license to sit in a seat to watch a particular movie,” he continued. Therefore, “movie theaters may ‘deliver[]’ movies, but not the ‘materials’ necessary to watch them.” Stras added: “If Congress had something else in mind, it could have said so.”
Additionally, the 8th circuit took issue with the idea that the movie theater “engaged in the business” of posting free movie trailers on its websites, likening that practice to advertising, while its real business would be selling movie tickets or other concessions.
Their ruling affirmed a decision from the U.S. District Court for Minnesota (docket 0:23-cv-03614), which dropped the case in September 2024.