Supreme Court to Clarify the Definition of “Consumer” Under the VPPA

This morning, the U.S Supreme Court agreed to hear a petition that will determine the meaning of “consumer” under the Video Privacy Protection Act (“VPPA”). 

The VPPA defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). The petition for writ of certiorari granted today was filed by petitioner-plaintiff Michael Salazar, and it challenges a Sixth Circuit ruling in favor of Paramount, holding that Salazar couldn’t be considered a “consumer” under the VPPA because he subscribed to an online newsletter and not specifically to audiovisual materials. [1] The petition asks the Supreme Court to answer the following question: 

Whether the phrase “goods or services from a video tape service provider,” as used in the VPPA’s definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.

The Supreme Court's decision to hear the case follows a split among appellate courts, with the Second and Seventh Circuits taking a broader view of the term “consumer” than that adopted by the Sixth Circuit. [2] 

As the VPPA only protects the “consumers” of video tape service providers, the Salazar petition concerns a threshold issue for liability under the VPPA and will likely impact the landscape of VPPA litigation. In the short term, the Supreme Court’s decision to review Salazar will likely influence the Ninth Circuit’s review of Heather v. Healthline, which likewise asks the circuit court to consider the meaning of “consumer” under the VPPA. [3] In Heather v. Healthline, appellant-plaintiffs appeal a Northern District of California decision holding that plaintiffs’ subscriptions to Healthline’s newsletters did not make them consumers within the meaning of  VPPA because Healthline’s newsletters were not “video goods or services within the meaning of VPPA.” [4]  

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[1] Salazar v. Paramount Global, No. 23-5748, 133 F.4th 642 (April 3, 2025), reh’g denied, 2025 WL 1409343 (May 13, 2025).

[2] See Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 537 (2d Cir. 2024) (“The VPPA’s text, structure, and purpose compel the conclusion that [the phrase ‘goods or services from a video tape service provider] is not limited to audiovisual ‘goods or services.’”); Gardner v. Me-TV Nat’l Ltd. P’ship, 132 F.4th 1022, 1025 (7th Cir. 2025) (holding that “[a]ny purchase or subscription from a ‘video tape service provider’ satisfies the definition of ‘consumer,’ even if the thing purchased is clothing or the thing subscribed to is a newsletter.”).

[3] See Heather v. Healthline, No. 24-4168 (9th Cir. filed Oct. 2, 2024), Dkt. 10.

[4] Heather v. Healthline Media, Inc., No. 3:22-CV-05059-JD, 2024 WL 5401593, at *1 (N.D. Cal. June 7, 2024)