11th Circuit Analyzes VPPA's Definition of “Subscriber”

In 2012, Congress amended the VPPA to reflect the realities of the 21st century. The amendment reflected modern society’s shift from “corner video stores,” such as Blockbuster and Redbox, to streaming platforms and other forms of digital media. Crucially, for business owners, courts have held that websites qualify as a video tape service provider within the VPPA.

The Act provides a federal cause of action for aggrieved “consumers,” allowing them to recover actual or liquidated damages of at least $2,500, punitive damages, attorneys' fees and costs, and other appropriate preliminary and equitable relief. Under the VPPA, the term ‘consumer’ means any renter, purchaser, or subscriber of goods or services from a video tape service provider. 18 U.S.C. § 2710(a)(1).

I. How has the 11th Circuit defined “Subscriber?”

In Ellis v. Cartoon Network (“Ellis”), the Eleventh Circuit analyzed what constituted a “subscriber” under the VPPA. In Ellis, the plaintiff watched video clips on the Cartoon Network app, which he downloaded to his smartphone for free.

As a matter of first impression, the court considered persuasive authorities, leading to a multifactor test under which to analyze VPPA claims. The Eleventh Circuit, upon review of these authorities concluded that “a ‘subscription’ involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.” The court granted summary judgment for the defendant, Cartoon Network, finding that solely watching video clips on a free smartphone application did not confer “subscriber” status to Ellis.

In relevant part, the Eleventh Circuit identified several factors which indicated an absence of “commitment” or “relationship,” and thus supporting its finding that Ellis was not a “subscriber” under the VPPA. Specifically, that Mr. Ellis did not:

1. Sign up for or establish an account with Cartoon Network;

2. Provide any personal information to Cartoon Network;

3. Make any payments to Cartoon Network for use of the CN app;

4. Become a registered user of Cartoon Network or the CN app;

5. Receive a Cartoon Network ID;

6. Establish a Cartoon Network profile;

7. Sign up for any periodic services or transmissions; or

8. Make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content. 

In the Eleventh Circuit’s view, downloading an app for free and using it to view content at no cost is not enough to make a user of the app a “subscriber” under the VPPA, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app.

II. Recent Cases Further Elaborating on “Subscriber” Status.

While the Eleventh Circuit also noted factors which did not necessarily—in isolation—indicate that a plaintiff qualified as a “subscriber” under the VPPA. For example, it noted that neither (1) payment for the video content nor (2) the video tape service provider requiring a “log in” to access the video content were dispositive on this subscription issue. As the Northern District of Florida remarked in Edwards v. Learfield Comm’ns, LLC, simply signing up to receive access to video content does not denote the existence of a “durable commitment.”

For Florida businesses offering video content and utilizing pixel tracking, serious considerations should be had towards (1) the disclosure of personally identifiable information in conjunction with information relating to the video content accessed; and (2) the structure and terms of long-term customer relationships. Moving forward, businesses using pixel trackers must be conscious of which types—and combinations—of personal data they transmit to third-parties. VPPA non-compliance can be costly, with statutory damages reaching $2,500 per violation—particularly, when plead as a class action with numerous class members alleging one or more violations.