A federal appeals panel has agreed movie theater owners aren’t subject to litigation under a Reagan-era federal law intended to protect the privacy of video viewing habits.
Paul Osheske sued Silver Cinemas Acquisition, known as Landmark Theaters, alleging a violation of the 1988 Video Privacy Protection Act. According to Osheske’s complaint, the offending incident was his online purchase of a ticket to a Landmark theater screening. Because he was logged in to his Facebook account on the device at the time of the purchase, Landmark was able to share the name of the movie and theater location with Facebook via an embedded tracking beacon without Osheske’s consent.
In asking U.S. District Judge Hernan Diego Vera to dismiss the complaint, Landmark argued it is not a “video tape service provider” as the VPPA defines. It further said it didn’t knowingly disclose any “personally identifiable information” and argued the federal law was unconstitutional, either as written or as applied to a theater’s sharing of data in connection with a public screening.
Vera agreed, finding movie theaters are not engaging in “rental, sale or delivery” of “audio visual materials” in the manner the VPPA defines video tape service providers.
Osheske challenged that ruling before the U.S. Ninth Circuit Court of Appeals.
Judge Margaret McKeown wrote the panel’s opinion, filed March 27; Judges Lucy Koh and Anthony Johnstone concurred.
“The original impetus for the VPPA arose during President Ronald Reagan’s contested nomination of Judge Robert Bork to the Supreme Court, when the Washington City Paper published a profile of Judge Bork based on a leaked list of 146 films that he and his family had rented from a local video store,” McKeown wrote. “In direct response, the VPPA imposed liability on any ‘video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider.’ Nearly 40 years later, we consider for the first time whether selling tickets to and providing an in-theater movie experience constitutes a business subject to the VPPA.”
Part of Osheske’s argument was Landmark advertising its “reputation for delivering the best in specialty, traditional and independent film,” but the theater argued that doesn’t place it in the same category as the type of provider that rents, sells or delivers “prerecorded video cassette tapes or similar audio visual materials.”
The appellate panel agreed, saying the VPPA language makes it clear the pertinent transaction involves a physical video product and not the in-auditorium transmission of light and sound.
“Landmark does not deliver any ‘audio visual materials’ to the customer in either its ticket sales or its in-theater experiences,” McKeown wrote. “As Landmark’s counsel laid out, ‘theater patrons do not obtain the control over audiovisual materials available to prerecorded video viewers. Someone late to a theater showing cannot rewind the movie, someone needing to use the facilities or desiring a soft drink cannot pause it, and someone falling asleep cannot stop it and start it again later.’ Simply put, there has not been a transaction involving an exchange of video materials that qualifies as a ‘rental, sale, or delivery.’ ”
Looking at the Bork incident, the panel noted “outraged” lawmakers made remarks about intellectual freedom and privacy in the context of a person’s home. Further, had Congress wanted to include movie theater tickets in the law, it omitted such venues, “perhaps because they are publicly accessible sites of shared synchronous viewing,” McKeown wrote.
The panel also said dismissal without leave to amend was proper, as it is clear the complaint can’t be saved.
Osheske is represented by Berger Montague, of La Mesa and San Francisco.
Silver Cinemas is represented by Baker & Hostetler, of Chicago, Los Angeles and Washington, D.C.
Attorneys for both sides did not respond to requests for comment from The Record.