Cybersecurity Policy Report, 8th Cir.: Consumer’s putative VPPA class action against movie theater operator flickers-out on appeal, (Dec 10, 2025)

By Justin Marcus Smith, J.D.

The court could not read the Video Privacy Protection Act to deem the movie theater operator a “video tape service provider.”

The Video Privacy Protection Act (VPPA) did not make a movie theater operator facially liable for having allegedly shared a website visitor’s personally identifiable information with Facebook parent Meta, affirmed the United States Court of Appeals for the Eighth Circuit. The business of renting, selling, or delivering video tapes was too different from that of operating movie theaters to extend the VPPA to movie theaters. Congress could have made the VPPA applicable to movie theaters, but it did not do so, and the court could not re-write the statute. As written, the VPPA could not be stretched so far as to make any kind of business potentially liable for alleged Meta Pixel consumer data disclosures in connection with the online display of video advertisements. The Eighth Circuit affirmed dismissal of the consumer’s putative class action complaint for failure to state a claim (Christopherson v. Cinema Entertainment Corp., No. 24-3042 (8th Cir. Dec. 8, 2025)).

Background. A Minnesota consumer brought a putative class action against movie theater operator Cinema Entertainment Corp. (Cinema Entertainment). The consumer alleged she began seeing movie ads on her Facebook page after she viewed the Cinema Entertainment website to watch movie trailers and obtain movie tickets. She claimed Cinema Entertainment was liable as a “video tape service provider” under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, for having used the Meta Pixel website code to disclose her personally identifiable information to Facebook. The consumer sought liquidated damages of $2,500 for each class member for unlawful data disclosure under the VPPA.

The federal district court in Minneapolis, Minnesota dismissed the complaint for failure to state a claim because it found Cinema Entertainment was not engaged in the business of renting selling or delivering prerecorded video cassette tapes or similar audio-visual materials under the VPPA.

The consumer appealed, but on de novo review, the United States Court of Appeals for the Eighth Circuit affirmed. The issue on appeal was whether screening movies and providing free trailers made Cinema Entertainment a VPPA “video tape service provider.”

Discussion. The Eighth Circuit said it should “come as no surprise” that Cinema Entertainment was not in the business of renting, selling, or delivering video tapes. Its business was filling movie theaters with moviegoers. It gets its revenue by selling tickets and movie snacks, albeit showing movies drives that business.

The Eighth Circuit analyzed, after consulting Webster’s dictionary, that running a movie theater involves the “delivery” of movies to create “audio visual” experiences. In the consumer’s view, it made no difference that movie theaters do not use prerecorded video cassette tapes to screen movies, but the Eighth Circuit reasoned the words “similar” and “materials” in the definition of “audio visual” under 18 U.S.C. § 2710(b)(1) posed a “same kind” discrepancy: video cassettes have a physical form that consumers can directly manipulate, and although the movie theater experience also involves watching movies, “the similarities end there.” The customer buys a ticket, sits in the theater, and has no other control. Watching the movie again requires buying a new ticket for another showing.

Cinema Entertainment did use media that might be said to be similar to video tapes to screen or “deliver” the movies, but it was not in the business of renting, selling, or delivering the underlying media. There were 20,000 movie theaters in the country at the time Congress enacted the VPPA. Congress could have written the VPPA differently to expose movie theaters to liability if it had wanted to. It was not the business of the court to re-write the statute.

The Eighth Circuit continued that the display of online movie trailers posed a different problem because Cinema Entertainment was not “engaged in the business of” providing trailers, under the plain meaning of that phrase, where Congress did not provide a definition. Again, the main business of Cinema Entertainment was selling movie tickets and concessions, not showing movie trailers, a form of advertising. McDonald’s, by way of analogy, spends millions on advertising, but most people would say it is engaged in the business of selling fast food, not advertising. Conversely, extending VPPA liability to any business that posts video-based advertisements on its website would stretch the statute too far. The Eighth Circuit affirmed dismissal accordingly.

The Case is No. 24-3042.

Judge: Stras, D.

Attorneys: Scott Ferrier (Sadis & Goldberg LLP) for Gina Christopherson. Joel C. Griswold (Baker & Hostetler LLP) for Cinema Entertainment Corp.

Companies: Cinema Entertainment Corp.

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