In recent years, some plaintiffs’ lawyers have sought to transform the Video Privacy Protection Act (VPPA) — a Blockbuster-era statute enacted in 1988 in response to the publication of Judge Bork’s video rental history — into an omnibus internet privacy statute.
The specific issue before the U.S. Supreme Court in Salazar v. Paramount Global, dba 247Sports, No. 25-459, exemplifies how the statute has been misused. The plaintiff argues that a person qualifies as a “consumer” under the VPPA if he or she buys or rents any product — even something unrelated to video content, such as a T-shirt, a box of cereal or a tube of toothpaste. The text, context, structure and purpose of the VPPA all point to a more narrow definition of a “consumer” tied to the statute’s origins: people who rent, buy or subscribe to videotapes or similar audiovisual content.
Our amicus curiae brief for the Retail Litigation Center (a leading retail industry organization that represents the retail industry through strategic advocacy in the courts) lays out the explosion of VPPA litigation over the past four years against both businesses in general and retailers in particular. Beginning in 2022, plaintiffs’ lawyers (often using the same repeat plaintiffs) began filing hundreds of similar VPPA lawsuits challenging the use of commonplace website technologies. In our brief, we discuss why the Court should reject these efforts to jam the square peg of modern website technology into the round hole of a statute adopted in the era of VHS and Betamax tapes.