The Eighth Circuit Court of Appeals has ruled that a major movie theater chain, Cinema Entertainment Corporation, is not liable under the Video Privacy Protection Act (VPPA) for sharing customer data collected from its website, even when that data related to movie trailers viewed online. The court sided with the District of Minnesota, concluding that the theater corporation does not fit the specific definition of a “video tape service provider” as laid out in the federal statute.
The case, brought by Gina Christopherson on behalf of a proposed class of similarly situated individuals, centered on data sharing between Cinema Entertainment and Meta (Facebook). Christopherson alleged that after she viewed movie ads on the theater’s website, a tracking program called Meta Pixel shared her activity, leading to targeted advertising on her Facebook feed. She sought statutory damages of $2,500 for each affected person, arguing the theater violated the VPPA’s prohibition against knowingly disclosing personally identifiable information.
The Core Issue: Defining a “Video Tape Service Provider”
The VPPA imposes strict obligations on “video tape service providers” to protect the viewing history of their customers. The crucial question before the Eighth Circuit was whether Cinema Entertainment—a company whose primary business is selling tickets and concessions for in-theater movie screenings—qualifies under the statute.
The VPPA defines a provider as “any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. § 2710(a)(4).
Judge Stras, writing for the panel that also included Judges Benton and Grasz, noted that the theater company clearly does not rent, sell, or deliver old-fashioned VHS or Betamax tapes. The court had to determine if showing movies on the big screen or offering free web trailers qualified as the “rental, sale, or delivery of . . . similar audio visual materials.”
Theater Screenings Don’t Qualify
Christopherson argued that running a theater involves the “delivery” of movies that result in an “audio visual” experience, making them analogous to the materials covered by the statute.
However, the Eighth Circuit applied the interpretive rule of *ejusdem generis*, which dictates that general words following a list should be interpreted as being similar in nature to the specific items listed. In this case, “similar audio visual materials” must resemble “prerecorded video cassette tapes.”
The court emphasized the physical nature of video cassettes. They can be touched, paused, rewound, and shared repeatedly by the consumer. In contrast, a movie theater ticket grants only a temporary license to view a film from start to finish, offering no consumer control over playback or rewatchability without purchasing a new ticket.
The court reasoned that while theaters “deliver” movies, they do not deliver the *materials* in the sense Congress intended—a physical, tangible item capable of being controlled by the consumer at home. Furthermore, the court pointed out that when Congress passed the VPPA in 1988, movie theaters were widespread, and if the intent was to regulate them, Congress could have easily included specific language referencing “motion picture exhibition facilities,” as it has done in other statutes.
Free Web Trailers Are Advertising, Not a Business
The second part of Christopherson’s claim involved the free movie trailers made available on Cinema Entertainment’s website. Even if providing these trailers could be deemed the “delivery of… similar audio visual materials,” the court found that the theater was not “engaged in the business” of providing them.
The court turned to the plain, ordinary meaning of being “engaged in the business of” something, which generally means regularly engaging in an activity for livelihood or gain. Cinema Entertainment’s business is ticket and concession sales.
The web trailers, the court concluded, function as advertisements—a way to generate interest to drive ticket sales. The court analogized this to McDonald’s spending millions on commercials; while advertising is essential, no one would claim McDonald’s is “in the business of advertising.”
The judges noted that if providing free web trailers qualified a company as a VPPA provider, then any business posting video advertisements online, like McDonald’s, would be swept into the law’s reach. The court stressed that Congress does not typically hide major regulatory expansions, like including all online advertisers, in vague or ancillary provisions—a concept known as not hiding “elephants in mouseholes.”
Ultimately, the Eighth Circuit affirmed the lower court’s decision, finding the plain language of the VPPA did not extend its protections to cover data sharing related to movie theater attendance or the viewing of free promotional trailers online.