A federal judge in the Western District of Texas recently sided with a growing trend of rulings adopting a narrow reading of the Video Privacy Protection Act (VPPA) in dismissing a putative class action against the operators of a Texas Longhorns email newsletter. The case involved tracking pixels embedded in videos that were linked in the newsletter but posted to public websites. The court held that because the plaintiffs had not made a durable commitment through signing up for the newsletter, and because videos were not embedded in the newsletter, plaintiffs failed to meet the definition of “consumer” as defined in the VPPA.
The plaintiffs in Brown v. The University of Texas at Austin et al., 1:23-cv-00374, alleged they provided their personally identifiable information (PII) to sign up for a newsletter operated by defendants Learfield Communications, LLC and Sidearm Sports, LLC, and that the newsletters included links to videos hosted on a public Texas Longhorns team website run by the same entities (the University of Texas was previously dismissed from the lawsuit). Those videos allegedly included embedded “Pixel” software that can collect and track certain viewer PII. The plaintiffs claim that the site did not disclose this data collection or the transfer of such data in violation of the VPPA.
The court began its analysis of the VPPA by noting it was the third court to address such claims against these defendants, following similar decisions in Florida and Nebraska in 2023 relating to their operation of other school sports websites. The court focused on the VPPA’s fourth element, that the PII is “concerning any consumer,” where a consumer is “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). Other circuits defined “subscriber” to include an exchange of consideration, that did not have to be monetary, but differed on what consideration was sufficient. After endorsing the view of the Eleventh Circuit in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) that factors showing a subscription included “payment, registration, commitment, delivery, expressed association, and access to restricted content,” the court agreed that signing up for the newsletter did not involve sufficient consideration where there was no durable commitment or account creation, no payment, and no penalty for opting out.
The court next turned to an alternate analysis of “consumer” for purposes of the VPPA, citing Carter v. Scripps Networks, LLC, 2023 WL 3061858, at *6 (S.D.N.Y. Apr. 24, 2023) to define consumer as one who “rents, purchases, or subscribes to audio visual materials, not just any products or services from a video tape services provider.” Here, the plaintiffs only signed up to a newsletter, and did not receive any greater access to the linked videos than the public, and therefore the plaintiffs did not subscribe to audio visual materials. Plaintiffs argued that this reading was overly narrow, and that the “goods and services from a video tape service provider” part of the consumer definition encompassed their claims; however, the court noted this position was “disfavored as of late” pointing to a range of district court cases from the past year from around the country, and held that it was “adopting a narrow definition of the VPPA,” explaining that “[i]t only makes sense that in the context of the law and its purpose that the alleged subscription be related to audio visual content.”