Summary
The Ninth Circuit affirmed the dismissal of Paul Osheske’s putative class action against Silver Cinemas Acquisition Company under the Video Privacy Protection Act. The court held that selling tickets to and providing access to in-theater movie screenings does not constitute the rental, sale, or delivery of prerecorded audiovisual materials by a covered video tape service provider, and that amendment would be futile.
Topics
Practice areas
Questions Presented
- Whether a movie theater that sells tickets to and provides in-theater film screenings is a "video tape service provider" engaged in the rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials under the Video Privacy Protection Act.
- Whether the district court properly dismissed the complaint without leave to amend.
Holdings
- A movie theater that sells tickets to and provides access to in-theater film screenings is not engaged in the rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials and therefore is not a video tape service provider subject to the VPPA.
- Dismissal without leave to amend was proper because Osheske did not request leave to amend and the complaint could not be saved by any amendment.
Key quotations
“Taken together, the phrase “rental, sale, or delivery” characterizes the exchange of a video product. It does not encompass the provision of shared access to film screenings.” (132 F.4th at 1115)
“Landmark does not deliver any “audio visual materials” to the customer in either its ticket sales or its in-theater experiences.” (132 F.4th at 1116)
Factual background
Landmark operates movie theaters and a website through which users can view trailers, browse showtimes, and purchase movie tickets. Landmark used a Facebook pixel that transmitted information when a user purchased a ticket while logged into Facebook. After Osheske purchased a ticket, Landmark transmitted the film name, showing location, and Osheske's unique Facebook identification number to Facebook without his consent.
Procedural history
Osheske filed a putative class action alleging that Landmark disclosed movie-ticket purchase information and his Facebook identification number to Facebook. The district court granted Landmark's motion to dismiss for failure to state a claim and dismissed the complaint without leave to amend. The Ninth Circuit affirmed.