• by Wendy Davis  @wendyndavis, March 28, 2025

A Reagan-era privacy law prohibiting certain video providers from sharing information about consumers doesn't apply to movie theaters, a federal appellate panel ruled Thursday.

The ruling came in a class-action complaint brought in late 2022 by Boston resident Paul Osheske against Landmark Theaters. Osheske alleged that he purchased movie tickets through Landmark's website, which included Meta Platforms' “pixel” -- analytics code that can transmit information about website visitors to Meta.

Osheske claimed that Landmark violated the Video Privacy Protection Act (VPPA) by transmitting his personally identifiable information to Meta, along with information about the movie tickets he purchased.

That law, passed after a Maryland newspaper obtained Supreme Court nominee Robert Bork's video rental records from a local store, prohibits “video tape service providers” from disclosing personally identifiable information about people's video-viewing history, without their consent.

Landmark argued the case should be dismissed for several reasons, including that it isn't a “video tape service provider.”

U.S. District Court Judge Hernán Vera agreed with Landmark and dismissed the complaint in October 2023.

“Movie theaters sell tickets -- essentially licenses to enter and view a movie in a public theater at a certain place and time -- they do not rent or sell audio visual materials themselves,” Vera wrote.

“To expand the VPPA to cover the public act of attending a movie theater is a bridge too far and is patently inconsistent with both the plain language and legislative history of the VPPA itself,” the judge added.

Osheske appealed to the 9th Circuit, arguing that the statute defines “video tape service provider” as a company that rents, sells or delivers videos to consumers.

“Landmark 'delivers' movies to consumers by sending light and sound to them as they sit in theaters,” his lawyers argued to the appellate court.

A three-judge panel of the 9th Circuit rejected that argument, ruling in an opinion authored by Circuit Judge M. Margaret McKeown and joined by Judges Lucy Koh, and Anthony D. Johnstone that the video privacy law “does not encompass the provision of shared access to film screenings.”

They added that the VPPA itself doesn't include a reference to movie theaters.

“Though the market for theatrical releases was in full swing in the late 1980s, movie theaters were omitted from the Act and accompanying report, perhaps because they are publicly accessible sites of shared synchronous viewing,” McKeown wrote. “The plain language of the statute, buttressed by the privacy concerns animating the VPPA, confirms that Landmark was not engaged in business subject to the Act.”

The lawsuit is one of numerous recent cases alleging that website operators violate the video privacy law by embedding analytics tools from outside vendors.

So far, courts haven't definitively determined how the 1988 law applies to online videos.

But at least one appellate court says the law should be interpreted broadly. In that matter, a panel of the 2nd Circuit revived claims by California resident Michael Salazar, who alleged that the sports organization violated the video privacy by transmitting information about videos he viewed on NBA.com to Meta, via its analytics code.

The National Basketball Association recently asked the Supreme Court to hear an appeal of that ruling.