Another California Federal Court Rules Movie Theater Is Not “Video Tape Service Provider” Under the VPPA.

A Central District of California court recently dismissed a putative privacy class action after determining that the movie theater defendants were not Video Tape Service Providers as defined by the Video Privacy Protection Act ("VPPA"). See Walsh v. California Cinema Investments LLC, 2024 WL 3593569 (C.D. Cal. July 29, 2024). Two other California federal courts recently have reached similar conclusions, and appeals of those rulings are currently pending before the Ninth Circuit. See Garza v. Alamo Intermediate II Holdings, LLC, 2024 WL 1171737, at *1 (N.D. Cal. Mar. 19, 2024); Osheske v. Silver Cinemas Acquisition Co., 700 F. Supp. 3d 921 (C.D. Cal. 2023).

In Walsh, the Plaintiff contended that California Cinema and USA Cinema-two movie theater chains-violated the VPPA and California Code section 1799.3 by allegedly disclosing his personally identifiable information through a third-party pixel technology installed on their websites. 2024 WL 3593569, at *2. The VPPA applies to certain disclosures made by a "Video Tape Service Provider," which the statute defines as "any person engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials." 18 U.S.C. § 2710(a)(4). Plaintiff argued that the movie theater qualified as a Video Tape Service Provider because it purportedly "delivered" audio visual materials through physical movie theaters, "rented" audio visual materials through physical movie theaters, and "delivered" audio visual materials by posting movie trailers on its website. The court disagreed.

The court first ruled that cinemas do not "deliver" videos because they "do not give their customers a possessory interest in the movies they show." Id. at *3. And the court determined that, for this same reason, movie theaters do not "rent" videos by displaying them.

The court also rejected that the cinema "delivered" audio visual materials by displaying movie trailers on its website. It determined that the mere presence of trailers did not establish that the cinemas are "delivering audio visual materials to a degree that would be in the business of doing so," and the complaint alleged no other facts to support a different inference. Id. at *5. The court wrote that "it seems more likely that these trailers merely serve to promote Defendants' actual business as a movie theater." Id. The court also dismissed Plaintiff's Section 1799.3 claim after similarly concluding that the defendants did not "provid[e] video record sales or rental services."