A Blockbuster Week for the VPPA—New Releases from the Sixth and Seventh Circuits
Much like Blockbuster Video rental stores (of which you might be surprised to learn there is still one remaining), the Video Privacy Protection Act (VPPA) was quietly slipping into obsolescence with the advent of the Internet Age. Derided as a hastily (and poorly) crafted statute, the VPPA was originally enacted to prohibit video tape rental stores from disclosing their customers’ rental habits.
In a nutshell, the VPPA allows individual “consumers” to assert a claim against a “video tape service provider” for knowingly disclosing the consumer’s “personally identifiable information” to third parties without express consent. The VPPA limits its definition of “consumer” to a “renter, purchaser, or subscriber of goods or services” from a “video tape service provider,” that is, a person or entity “engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” The statute, originally passed in 1988 in response to a newspaper’s publishing of Supreme Court nominee Robert Bork’s video rental history, has seen a few revisions, but was by and large a dormant statute.
But in recent years, litigation over the VPPA has been resuscitated by a spate of putative class action lawsuits predicated on the use of advertising technology. Now, the statute has had one of its biggest weeks ever, with two conflicting circuit decisions issuing less than a week apart—one from the Sixth Circuit and the other from the Seventh, both turning on the definition of a “consumer” under the statute. The varying outcomes coming out days apart created a circuit split faster than you can say “Be kind, please rewind.”
Gardner v. Me-TV Nat’l Limited Partnership, Case No. 24-1290 (7th Cir. March 28, 2025)
On March 28, the Seventh Circuit sided with the Second Circuit’s interpretation of “consumer” in Salazar v. NBA, No. 23-1147 (2d Cir. Aug. 2023).
In Gardner v. Me-TV, the Seventh Circuit held that a person is considered a “consumer” any time they subscribe to goods or services generally—as long as those goods or services are coming from an entity that is also a video tape service provider.
Under this broad view, it is immaterial whether the goods or services bought by the complaining purchaser are actually videos. Instead, “a person becomes a ‘consumer’ as long as the entity on the other side of the transaction is a ‘video tape service provider.’”
Salazar v. Paramount Global, No. 23-5748 (6th Cir. April 3, 2025)
Days later, on April 3, the Sixth Circuit released its decision in Salazar v. Paramount Global, a nearly identical case from the same plaintiff that sued the NBA (and won).
In Paramount, the Sixth Circuit agreed with defendants that the VPPA’s definition of “consumer” is cabined by its definition of a “video tape service provider.” A “video tape service provider,” according to the VPPA, is any entity involved in the business of the “rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. § 2710(a)(4). A “consumer” under the statute is “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”18 U.S.C. § 2710(a)(1).
Reading the two definitions together, the court in Paramount held: “[T]he most natural reading . . . shows that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’”
Not Yet Rated (NR)–Your VPPA Liability Might Vary
These competing interpretations of the meaning of “consumer” under the VPPA have implications for providers and consumers of audio-visual media alike. Under the Sixth Circuit’s more narrow standard, a plaintiff only becomes a “consumer” under the VPPA when they subscribe to a good or service that can be said to be some sort of audio-visual material (for example, a consumer purchases online access to a home DIY project video series from a national hardware retailer). Under the broader standard embraced by the Second and Seventh Circuits, on the other hand, a plaintiff becomes a VPPA consumer as long as the other party to the transaction also sells audio-visual materials (for example, a consumer purchases a lawn mower from a national hardware retailer that also sells access to DIY home project videos).
The issuance of two conflicting circuit decisions in less than a week is sure to tee up a challenge before the Supreme Court in the coming years. But, before that happens, businesses will need to stay especially aware of the evolving nature of this litigation—as their exposure to VPPA liability may differ based on where a plaintiff brings claims for the alleged violation of the statute. Particularly because unlike the days of Blockbuster Video—when a person went to a physical store to rent an actual tape—now, a consumer can access visual media virtually anywhere from any device. Therefore, companies should consider risk mitigation measures that are right for their respective organizations.
In a nutshell, the VPPA allows individual “consumers” to assert a claim against a “video tape service provider” for knowingly disclosing the consumer’s “personally identifiable information” to third parties without express consent. The VPPA limits its definition of “consumer” to a “renter, purchaser, or subscriber of goods or services” from a “video tape service provider,” that is, a person or entity “engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” The statute, originally passed in 1988 in response to a newspaper’s publishing of Supreme Court nominee Robert Bork’s video rental history, has seen a few revisions, but was by and large a dormant statute.
But in recent years, litigation over the VPPA has been resuscitated by a spate of putative class action lawsuits predicated on the use of advertising technology. Now, the statute has had one of its biggest weeks ever, with two conflicting circuit decisions issuing less than a week apart—one from the Sixth Circuit and the other from the Seventh, both turning on the definition of a “consumer” under the statute. The varying outcomes coming out days apart created a circuit split faster than you can say “Be kind, please rewind.”
Gardner v. Me-TV Nat’l Limited Partnership, Case No. 24-1290 (7th Cir. March 28, 2025)
On March 28, the Seventh Circuit sided with the Second Circuit’s interpretation of “consumer” in Salazar v. NBA, No. 23-1147 (2d Cir. Aug. 2023).
In Gardner v. Me-TV, the Seventh Circuit held that a person is considered a “consumer” any time they subscribe to goods or services generally—as long as those goods or services are coming from an entity that is also a video tape service provider.
Under this broad view, it is immaterial whether the goods or services bought by the complaining purchaser are actually videos. Instead, “a person becomes a ‘consumer’ as long as the entity on the other side of the transaction is a ‘video tape service provider.’”
Salazar v. Paramount Global, No. 23-5748 (6th Cir. April 3, 2025)
Days later, on April 3, the Sixth Circuit released its decision in Salazar v. Paramount Global, a nearly identical case from the same plaintiff that sued the NBA (and won).
In Paramount, the Sixth Circuit agreed with defendants that the VPPA’s definition of “consumer” is cabined by its definition of a “video tape service provider.” A “video tape service provider,” according to the VPPA, is any entity involved in the business of the “rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. § 2710(a)(4). A “consumer” under the statute is “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”18 U.S.C. § 2710(a)(1).
Reading the two definitions together, the court in Paramount held: “[T]he most natural reading . . . shows that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’”
Not Yet Rated (NR)–Your VPPA Liability Might Vary
These competing interpretations of the meaning of “consumer” under the VPPA have implications for providers and consumers of audio-visual media alike. Under the Sixth Circuit’s more narrow standard, a plaintiff only becomes a “consumer” under the VPPA when they subscribe to a good or service that can be said to be some sort of audio-visual material (for example, a consumer purchases online access to a home DIY project video series from a national hardware retailer). Under the broader standard embraced by the Second and Seventh Circuits, on the other hand, a plaintiff becomes a VPPA consumer as long as the other party to the transaction also sells audio-visual materials (for example, a consumer purchases a lawn mower from a national hardware retailer that also sells access to DIY home project videos).
The issuance of two conflicting circuit decisions in less than a week is sure to tee up a challenge before the Supreme Court in the coming years. But, before that happens, businesses will need to stay especially aware of the evolving nature of this litigation—as their exposure to VPPA liability may differ based on where a plaintiff brings claims for the alleged violation of the statute. Particularly because unlike the days of Blockbuster Video—when a person went to a physical store to rent an actual tape—now, a consumer can access visual media virtually anywhere from any device. Therefore, companies should consider risk mitigation measures that are right for their respective organizations.
