VPPA Was Crafted for ‘Bygone Analog Era,’ Says Chive Motion to Transfer

Plaintiff Gregory Roland’s putative class action alleging Chive Media Group violated the Video Privacy Protection Act by knowingly sharing his viewing data with Meta (see 2301230018) asserts “a novel theory of relief unseen and untested” in the Northern District of Illinois, said Chive’s memorandum of law Thursday (docket 1:23-cv-00337) in support of its motion to transfer Roland’s case to the U.S. District Court for Western Texas in Austin.

Roland’s class action alleging VPPA claims invokes “a 35-year-old federal statute designed to prevent movie-rental stores from disclosing customers’ rental histories without authorization,” said the memorandum. Roland “seeks to capitalize on his voluntary use of Chive’s website to recover liquidated damages of $2,500 on behalf of himself and an unknown number of class members,” it said.

The “subtext” of Roland’s class action is “clear,” said the memorandum. The “brick-and-mortar rental stores of a bygone analog era” may have vanished, it said. But Roland’s lawsuit would have the VPPA “contorted beyond all legislative intent to apply in the digital age where millions of Americans watch streaming videos” on the internet instead of on “discarded VHS and DVD players,” it said.

Lawsuits that apply the VPPA to modern technologies like the Meta pixel tracking tool may still be novel, as Chive represents, but most court observers know they're increasingly common. Wiley webinar participants were told in November that the legal theories in the current wave of VPPA lawsuits -- more than 100 were filed in the year up to that point -- involve a “novel refocusing” of the statute, partly to encompass technologies that weren't even envisioned when the law was enacted more than three decades ago (see 2210280001).

Roland may allege Chive’s website contains tracking software that collects and reveals metadata about his video-viewing history to Facebook without his consent, said the memorandum. But he doesn’t claim “any tangible harm or concrete injuries resulting from this innocuous conduct,” it said.

The Northern District of Illinois “need not trouble itself with the merits” of Roland’s “new-fangled attempt to apply the VPPA to technological settings that were unforeseen” in the 1980s when the statute was enacted, said the memorandum. Roland’s case doesn’t belong there, it said. The terms of service that Roland “affirmatively” agreed to “contain a valid forum-selection clause that requires all putative plaintiffs to file lawsuits arising out of their use of Chive’s website in Travis County, Texas,” home to Chive’s headquarters in Austin.

The court shouldn’t “countenance” Roland’s attempt “to litigate his nationwide class action in a forum of his choosing and in derogation of a valid forum-selection clause,” said the memorandum. “Transfer is the appropriate solution here.”