[00:00:00] Speaker 04: Good morning. [00:00:01] Speaker 03: Good morning, your honors. [00:00:04] Speaker 04: Please proceed, counsel. [00:00:07] Speaker 03: Good morning. [00:00:07] Speaker 03: May it please the court, my name is Simon Grill, and I represent plaintiffs and appellants Alexandria Heather and Kelsey Nelson. [00:00:14] Speaker 03: I'd like to reserve two minutes for rebuttal, please. [00:00:16] Speaker 04: All right, counsel, please be reminded that the time shown on the clock is your total time remaining. [00:00:21] Speaker 03: Thank you. [00:00:23] Speaker 03: As seven other circuit [00:00:25] Speaker 03: Excuse me, as seven other circuit judges have held, the plain meaning of the statutory text resolves this appeal. [00:00:31] Speaker 03: Plaintiffs are consumers under the act because they provided their personal information in exchange for a subscription to Healthline's newsletter or a Bezi account. [00:00:42] Speaker 03: The district court erred by construing goods or services to mean video related goods or services for three reasons. [00:00:50] Speaker 03: First, that interpretation ignores the plain meaning of the statute and impermissibly adds terms. [00:00:57] Speaker 03: Second, the district court's reading is inconsistent with core canons of statutory interpretation, including the meaningful variation canon and the surplusage canon. [00:01:08] Speaker 03: Third, the district court's interpretation is inconsistent with the purpose and legislative history of the VPPA. [00:01:16] Speaker 00: So, counsel, what is the limiting principle if a consumer includes someone who sells or purchases, rents, procures any goods or services, not just audiovisual goods and services? [00:01:34] Speaker 00: What's the limit of the defendant's liability? [00:01:40] Speaker 03: There are several limits, your honor, but the first and [00:01:44] Speaker 03: perhaps most important limit occurs in the definition of personally identifiable information. [00:01:50] Speaker 00: But there's an issue there, of course. [00:01:52] Speaker 00: That section says that personally identifying information includes, as opposed to saying means. [00:02:00] Speaker 00: So it could be read to mean that that is not really a limit. [00:02:04] Speaker 00: It is just part of what includes personally identifying information. [00:02:09] Speaker 00: So it could be something beyond audiovisual materials. [00:02:13] Speaker 03: It's true that the definition says that and the majority in the Sixth Circuit read that to mean that the definition may not be the limiting principle that I'm arguing that it is. [00:02:24] Speaker 03: But I would argue that that interpretation is wrong because we can look at the legislative history and the Senate report explains the definition of personally identifiable information and why Congress used the word includes. [00:02:37] Speaker 03: The Senate, in that report, the Senate report explains [00:02:41] Speaker 03: that includes is intended to be expansive, but it also specifically notes the presence of the term video as a limiting factor for liability. [00:02:51] Speaker 03: I think that's page eight of the Senate report. [00:02:54] Speaker 01: So you disagree with the Seventh Circuit and you disagree with the partial dissent in the Sixth Circuit, is that right? [00:03:02] Speaker 03: I disagree with the majority opinion in the Sixth Circuit. [00:03:05] Speaker 03: I agree with the Seventh Circuit [00:03:07] Speaker 01: which held that the plain meaning of the statutory text is that goods are... I agree, but it sounds like you're agreeing with the Second Circuit in saying that the personal identifying information, that's the limiting principle. [00:03:18] Speaker 01: That's where the video request for services or materials comes in. [00:03:24] Speaker 01: Is that right? [00:03:25] Speaker 03: I would agree with the Second Circuit that [00:03:27] Speaker 03: The personally identifiable information is a limiting factor in terms of liability under the statute. [00:03:32] Speaker 01: But Judge Easterbrook's decision in the Seventh Circuit didn't have that PII limitation and neither did Judge Blumkast's partial dissent in the Sixth Circuit. [00:03:45] Speaker 01: So you're disagreeing with Judge Easterbrook and Judge Blumkast, is that right? [00:03:49] Speaker 03: I don't disagree with Judge Easterbrook or Judge Blumkast because I don't think they needed to address that limiting point. [00:03:57] Speaker 03: reached their opinion. [00:03:58] Speaker 03: Well, let me start with Judge Easterbrook. [00:04:00] Speaker 01: But you agree they don't have that second circuit limitation in PII, correct? [00:04:07] Speaker 03: I agree that Judge Easterbrook doesn't discuss the limitation of the video qualifier and the definition of PII in his opinion. [00:04:18] Speaker 03: Judge Bloomkatz, in her dissent, I think, does discuss that limitation in response to the majority's opinion. [00:04:26] Speaker 03: I think for Judge Easterbrook, he reached his conclusion by simply reading the plain language, as it would have been interpreted in 1988. [00:04:35] Speaker 03: And the statute is defined to include goods or services from a videotaped service provider. [00:04:40] Speaker 01: But you agree that his opinion doesn't have a limiting principle. [00:04:45] Speaker 01: As Judge Beatty's asking you, what is the limiting principle? [00:04:47] Speaker 01: You would agree his does not contain one. [00:04:49] Speaker 01: Is that right? [00:04:50] Speaker 03: I would agree that his opinion doesn't discuss the limiting principles that are within the statute. [00:04:56] Speaker 03: But I think his opinion recognizes that besides the specific issue that he's analyzing, in his opinion, the consumer definition, there are other limiting principles in the statute. [00:05:06] Speaker 03: And those include not just the definition of personally identifiable information, but also the definition of videotaped service provider. [00:05:14] Speaker 03: So liability only attaches if a certain number of conditions are met. [00:05:19] Speaker 03: First, the person has to be a consumer. [00:05:22] Speaker 03: That's not a given. [00:05:23] Speaker 03: In the Eleventh Circuit, somebody who downloaded a free app was found not to be a consumer. [00:05:29] Speaker 03: That's step one. [00:05:30] Speaker 03: Second, the defendant has to be a videotape service provider. [00:05:33] Speaker 03: They have to be engaged in the business of providing pre-recorded videotapes or similar audiovisual materials. [00:05:40] Speaker 03: That's not a given either. [00:05:41] Speaker 03: The Ninth Circuit [00:05:42] Speaker 03: hosts video content on its website, but arguably would not be a video tape service provider. [00:05:47] Speaker 00: But it's not just providing video tape services. [00:05:54] Speaker 00: The company could provide both. [00:05:59] Speaker 00: It could provide something else, right? [00:06:01] Speaker 03: I 100% agree. [00:06:03] Speaker 03: The company could provide more things than video materials. [00:06:06] Speaker 03: And I think that's also clear from the legislative history. [00:06:09] Speaker 03: The example that's cited [00:06:10] Speaker 03: Frequently and that is in the Senate report is that Congress envisioned a department store as Potentially qualifying as a videotape service provider even though the department source store sells items other than videos so [00:06:27] Speaker 00: Legislative history has fallen into some disfavor because it can be manufactured after the fact. [00:06:35] Speaker 00: And it doesn't really tell us why any particular person voted, member of Congress voted for the legislation or why the president signed it. [00:06:44] Speaker 00: So we're really looking for intent. [00:06:46] Speaker 00: And you are going to legislative history to suggest that the word including is meant in a limiting way instead of a broad way. [00:06:56] Speaker 00: What do you have besides legislative history? [00:06:58] Speaker 00: I think you need something more compelling than sort of questionable legislative history. [00:07:06] Speaker 03: Well, I would argue that this appeal can be resolved without reference to the legislative history at all, because the plain text is unambiguous and it doesn't lead to absurd results. [00:07:17] Speaker 03: And when that's the case, both this court and the Supreme Court have said the plain text controls. [00:07:23] Speaker 03: The first principle of statutory interpretation is that Congress said what it meant. [00:07:30] Speaker 03: And here we have a provision that unambiguously defines consumers without a video limitation. [00:07:37] Speaker 03: Congress knew how to insert a video limitation when it wanted to, and it did that in other [00:07:44] Speaker 03: subsections within the same Section 2710A, but it specifically chose not to include the video limitation in the definition of consumer. [00:07:55] Speaker 03: And that makes sense within the context of the VPPA, because the purpose of the VPPA is to protect a consumer's video privacy choices. [00:08:04] Speaker 03: And as in the example of the legislative history, whether [00:08:10] Speaker 03: Regardless of its weight in this appeal, we have the example of a department store. [00:08:15] Speaker 03: And so in that situation, you can have somebody who's a consumer of goods other than video goods from the consumer, from the department store, and would qualify as a videotape service provider. [00:08:27] Speaker 03: A different example might be helpful. [00:08:29] Speaker 03: In 1988, a lot of people, I think, shopped through mail order catalogs. [00:08:35] Speaker 03: So somebody could subscribe to a Sears catalog by going to Sears and providing Sears with their mailing address. [00:08:44] Speaker 03: They would then become a subscriber and Sears would periodically send them a catalog. [00:08:48] Speaker 03: Sears sells a variety of goods including videotapes. [00:08:52] Speaker 03: If the subscriber called Sears and says, do you have a video called living with diabetes, that subscriber has now requested [00:09:04] Speaker 03: specific video materials under the definition of personally identifiable information. [00:09:11] Speaker 03: But under the district court's interpretation and under Healthline's interpretation, Sears could freely disclose that person's video choices because that person didn't purchase, rent, or subscribe to a video-related good or service. [00:09:27] Speaker 03: That's an anomalous result. [00:09:29] Speaker 03: And that's inconsistent with Congress's intent [00:09:32] Speaker 03: in passing a statute that was designed to be protective of the privacy choices of American consumers. [00:09:41] Speaker 01: So let me understand. [00:09:41] Speaker 01: So you're saying the newsletter itself would not qualify as a good or service in the definition of consumer because it has to be a video item based on the definition of PII. [00:09:58] Speaker 01: Is that what you're saying for liability? [00:10:00] Speaker 01: It would be limited to only [00:10:02] Speaker 01: the acquisition of a video. [00:10:05] Speaker 03: Is that correct? [00:10:06] Speaker 03: If I understand your question correctly, my argument is that subscribing to the newsletter would qualify a person as a consumer, but that's not enough for that person. [00:10:16] Speaker 03: If the newsletter has no video related content, that's not enough for that person to then be within the potential of [00:10:25] Speaker 03: a plaintiff who has a case against Healthline. [00:10:28] Speaker 01: Because the ultimate good or service is not a video one. [00:10:30] Speaker 01: Is that correct? [00:10:31] Speaker 01: And you're getting that in through the PII. [00:10:33] Speaker 01: I'm just trying to understand your theory. [00:10:35] Speaker 01: Basically, it sounds like you're just following the Second Circuit. [00:10:38] Speaker 01: Is that right? [00:10:39] Speaker 03: I do follow the Second Circuit. [00:10:41] Speaker 03: I follow the Seventh as well. [00:10:43] Speaker 01: But you already conceded the Seventh doesn't have any explicit limitations. [00:10:51] Speaker 03: What my concession is, is that Judge Easterbrook doesn't specifically discuss in his opinion. [00:10:58] Speaker 03: PII is a limiting factor because he doesn't need to. [00:11:02] Speaker 03: But I am 100% in agreement with his interpretation of the statute, which is that- But that interpretation would be without limitation though, going back to the point Judge Beatty made. [00:11:15] Speaker 03: His interpretation of goods or services is without limitation, although as I noted, there's still some limitation because as the 11th Circuit held, downloading a free app would not qualify as subscribing to goods or services. [00:11:29] Speaker 03: But Judge Easterbrook's interpretation focused solely on the definition of consumer [00:11:34] Speaker 03: is without limitation as to those terms, goods or services. [00:11:39] Speaker 01: So does the consumer have to have a special relationship with the videotaped service provider, such as having exclusive access versus just access to something that's publicly available? [00:11:51] Speaker 03: I think the relationship is only special to the extent that the consumer purchases, rents, or subscribes to goods or services. [00:11:59] Speaker 03: I think exclusive access is [00:12:02] Speaker 03: not required and would be taking a step too far. [00:12:06] Speaker 03: It would be a bad policy to require exclusive access to video content because you can envision a provider like YouTube who provides free video content to the world and by doing that they would essentially evade liability in any circumstances because YouTube could say, [00:12:24] Speaker 03: Well, our content is available to everybody. [00:12:26] Speaker 03: Nobody gets exclusive access. [00:12:28] Speaker 03: So we would never be liable for violating the VPPA. [00:12:31] Speaker 00: So in response to Judge Koh's question about the newsletter, are you walking away from the argument in your brief that the newsletter and the Desi membership were sufficient to bring your client's claims within the statute? [00:12:45] Speaker 00: I thought your argument was that they were sufficiently similar to audiovisual materials because they included curated links to videos. [00:12:54] Speaker 03: I'm not walking away from that argument. [00:12:57] Speaker 03: In the alternative, if the court finds that the consumer definition, like the district court found, does require a video connection, then I am continuing to argue that our clients did subscribe to a video-related good or service. [00:13:12] Speaker 00: But what we would have is one of them receives a newsletter, and there are links. [00:13:19] Speaker 00: And they may or may not click on those links. [00:13:22] Speaker 00: So how does that become [00:13:25] Speaker 00: PII that is protected and that is improperly disclosed. [00:13:33] Speaker 03: The PII would be any video that the consumer interacts with. [00:13:38] Speaker 00: So they have to go beyond the newsletter. [00:13:40] Speaker 00: They have to click on the link. [00:13:41] Speaker 03: Well, the newsletter makes it very easy for them because it says click this link and you get directly to a video. [00:13:48] Speaker 03: logging onto your Netflix and you click a link in order to watch a video. [00:13:52] Speaker 03: So it's teed up, and that's the video-related benefit that we argue of the newsletter, which is that it provides these curated links for the consumer to easily ask video content that's tailored to their specific interests. [00:14:04] Speaker 00: So then your argument is that this newsletter [00:14:09] Speaker 00: If we were to adopt the limitation that consumer means a consumer of audio visual goods and services, you think this newsletter now qualifies as an audio visual good? [00:14:21] Speaker 03: We do. [00:14:21] Speaker 03: We argued that in the court below. [00:14:23] Speaker 03: And for the reasons I said, because the newsletter provides curated access to personalized links to video content [00:14:29] Speaker 03: we would argue that it's an audiovisual good or service. [00:14:32] Speaker 03: And I see I'm out of time. [00:14:33] Speaker 01: I have one more question. [00:14:35] Speaker 01: We've previously held that personal identifying information is only information that would allow an ordinary person to identify a particular individual as having watched a certain video. [00:14:47] Speaker 01: Would an ordinary person be able to make that identification based just on a Facebook ID? [00:14:53] Speaker 03: Yes, Your Honor, I think they would. [00:14:55] Speaker 03: And in the Eichenberger decision where this court held that, [00:14:58] Speaker 03: The court noted that a Facebook link very well could qualify as identifying information under the statute. [00:15:05] Speaker 03: And the Facebook ID that we've alleged here is essentially the same thing as a Facebook link. [00:15:11] Speaker 03: It directs somebody immediately to a person's Facebook profile, which includes an entire trove. [00:15:17] Speaker 01: But what's the mechanism for that to happen? [00:15:20] Speaker 03: The mechanism would be facebook.com slash the numbers that are included in the Facebook ID. [00:15:26] Speaker 04: All right. [00:15:27] Speaker 04: Thank you, counsel. [00:15:28] Speaker 04: We'll give you a couple of minutes for rebuttal. [00:15:30] Speaker 03: Thank you. [00:15:48] Speaker 04: Morning, counsel. [00:15:49] Speaker 02: Good morning, your honors. [00:15:51] Speaker 02: Ben Thomason here for Defendant Healthline Media Incorporated, and may it please the court. [00:15:56] Speaker 02: Your Honors, when this Court first encountered the Video Privacy Protection Act in 2015 in the Mollett v. Netflix Appeal, this Court recognized that Congress's stated purpose for the Act was to preserve the personal privacy with respect to the rental, sale, and delivery of videotapes and similar audiovisual materials. [00:16:15] Speaker 02: Your Honors, that recognition should drive the decision in this appeal today. [00:16:19] Speaker 02: Under the plain text of the VPPA, [00:16:21] Speaker 02: The same video transactions that qualify an individual as a statutory consumer are the same video transactions that generate the personally identifiable information that's protected by the Act, and are the same video transactions that qualify an entity as a regulated videotape service provider. [00:16:38] Speaker 02: In this case, because neither plaintiff alleges that she rented, bought, or subscribed to video materials from Healthline, they are not statutory consumers under the Act, [00:16:48] Speaker 02: and they cannot state a VPA claim as a matter of law. [00:16:51] Speaker 01: So it's your statutory purpose argument, your strongest argument? [00:16:57] Speaker 02: Not at all, Your Honor. [00:16:58] Speaker 01: I'm sorry, I'm trying to understand. [00:16:59] Speaker 01: Are you making a statutory purpose argument? [00:17:01] Speaker 01: Because that one seems like is not necessarily in your favor when it's exactly the ID of an individual and what videos that individual watched that's being conveyed by your client to Facebook. [00:17:16] Speaker 02: Yes, I understand that. [00:17:17] Speaker 01: Let me wind up to what... So how is that... How is... That seems almost completely on point with statutory purpose of what information was the statute was intended to protect. [00:17:29] Speaker 02: Right. [00:17:29] Speaker 02: So the purpose of the statute that was recognized in Mullet and recognized Judge Rawlinson in the Sony versus Rodriguez decision that you authored, it's to protect these video transactions. [00:17:39] Speaker 02: The transactions are what the heart [00:17:41] Speaker 02: of what is that issue in this case, as to each of the VPPA's core definitional terms, right? [00:17:47] Speaker 02: And so the ultimate support for our argument comes from the statutory text, as this court stated in, for example, the Rodriguez case, must be read to create a consistent regulatory regime in line with that congressional purpose. [00:18:02] Speaker 02: And it's only when we use canons of construction that bring us outside that framework do we start to run astray. [00:18:08] Speaker 02: And that's the main issue [00:18:09] Speaker 02: with the Second Circuit's interpretation of the VPPA today. [00:18:13] Speaker 02: So Healthline's argument in this case is based on a holistic reading of all the VPPA's key statutory terms, Section A1, Section A3, and Section A4 in light of the liability provision in Section B1. [00:18:27] Speaker 00: That's the... So the stat... the candidates of construction also require that we assume when Congress used different language, they meant different things. [00:18:36] Speaker 00: And in... [00:18:39] Speaker 00: the different sections, the word video or audiovisual is included or excluded, and it's excluded in the definition of the consumer. [00:18:49] Speaker 00: So why should we conclude that that was not deliberate, that it was an omission of Scrivener's error or something else as a way for us to write those words into the statute? [00:18:59] Speaker 02: Sure. [00:18:59] Speaker 02: Well, Judge Bay, the answer comes in the VPA's text. [00:19:02] Speaker 02: And again, this consistent focus on protecting these video transactions first and foremost. [00:19:07] Speaker 02: And this meaningful variation canon [00:19:09] Speaker 02: That's the one that really underlies the Second Circuit's decision in the, the Second Circuit's decision in Salazar versus NBA. [00:19:16] Speaker 02: And one thing counsel noted at the outset of his argument is that two circuit courts weighed in his favor and only one has gone the opposite direction. [00:19:25] Speaker 02: Well, just this morning, the DC Circuit issued its opinion in the Pelagi case, which addressed the same issue of statutory interpretation. [00:19:33] Speaker 02: And they addressed directly the question Your Honor is asking. [00:19:36] Speaker 02: Well, what about this meaningful variation canon? [00:19:39] Speaker 02: And in finding that the consumer in that case, which was also an individual that just received a written newsletter, the DC Circuit warned that these interpretive tools are just that. [00:19:51] Speaker 02: They're tools to aid in the court's interpretation of a statute's plain language. [00:19:55] Speaker 02: But when their application starts taking the statute in directions that Congress did not anticipate and are misaligned with congressional purpose, then the court shouldn't dogmatically rely on [00:20:08] Speaker 02: And again, to bring this back to this court's decisions, again, in the Sony versus Rodriguez case, this happened as well. [00:20:14] Speaker 02: It wasn't a meaningful variation canon. [00:20:16] Speaker 02: But it also dealt with the fact that the VPPA, as Judge Rollinson wrote, is an imperfectly drafted statute. [00:20:23] Speaker 02: And we have to rely on this holistic reading to understand what Congress meant. [00:20:27] Speaker 02: In that case, the plaintiffs argued that the civil action provision of the VPPA says literally that a consumer can sue [00:20:36] Speaker 02: if he or she has agreed, based on any violation of this section. [00:20:41] Speaker 02: And the argument went in that case, well, part of the section, section 2710 of the VPPA, includes the destruction of records provision. [00:20:48] Speaker 02: So I should be able to bring a lawsuit when someone holds my records for too long. [00:20:53] Speaker 02: This court rejected that articulation, even though it is supported by the literal text of the civil action provision when you look at that word in isolation, because what it looked to was the structure of the act and the fact [00:21:05] Speaker 02: that it maintains this focus on protecting against the disclosure of personally identifiable information rather than the other elements of the act that someone could conceivably bring a cause of action under. [00:21:17] Speaker 02: And so the court departed from the literal meaning of the text and in that case followed the Seventh Circuit in agreeing that a holistic reading of the statute is required when addressing the VPPA in particular. [00:21:29] Speaker 02: And the variations in the statute aren't just limited to this presence of video, [00:21:35] Speaker 02: in sections A3 and A4, but not A1. [00:21:38] Speaker 01: There's plenty of other... But you would agree in this case, the Facebook ID is allowing Metta to identify a particular individual as having watched a certain video, correct? [00:21:53] Speaker 02: That's generally what is alleged here, but that does not matter for the purposes of the VPPA because, again, the statute is focused on protecting the transactions that statutory consumers have [00:22:05] Speaker 02: with respect to the video products offered by videotaped service providers. [00:22:09] Speaker 02: It focuses... Well, wait. [00:22:12] Speaker 00: It's focused on protecting the transactions. [00:22:15] Speaker 00: So when this all started with Judge Bork's list of videos rented from Blockbuster, I don't think anybody was concerned whether he paid $5 or $7 to rent the video. [00:22:25] Speaker 00: It was the content. [00:22:27] Speaker 00: That was what was offensive. [00:22:29] Speaker 00: That was what led to the enactment of this legislation, was such a gross invasion of somebody's privacy. [00:22:35] Speaker 00: So I don't think that Congress cared about the transactions here. [00:22:38] Speaker 00: They cared about the information. [00:22:40] Speaker 00: And so what is monetized by your clients is the information. [00:22:43] Speaker 00: And so however they induce somebody to give them that information, [00:22:51] Speaker 00: doesn't seem to be relevant with respect to what Congress was trying to stop. [00:22:55] Speaker 00: So here you sign up for a newsletter, and then when you do that and watch videos, Healthline acquires information it can sell. [00:23:04] Speaker 00: So if it were something else, you purchase supplements, and because you purchase that, you get access to lists of videos that other people could access too, but now we're going to send you ones we think you're going to like. [00:23:17] Speaker 00: And once you do that, then we sell that information. [00:23:19] Speaker 00: Why doesn't that fall within the purpose of the statute in the plain language of the statute? [00:23:24] Speaker 02: Sure, and I understand your honor's point completely. [00:23:27] Speaker 02: And when I say transaction, I don't mean protecting the fact that someone paid $5 for a video rental. [00:23:33] Speaker 02: And this goes directly to your question, Judge Koh, about where the limitations of the statute come in. [00:23:38] Speaker 02: Congress wasn't interested in protecting the dollar value associated with a rental subscription or purchase. [00:23:45] Speaker 02: They were, as the statutory purpose says, [00:23:47] Speaker 02: as the title to the VPPA says, and the title of the liability provision, which Judge Koh came up in the argument in the Silver Cinema. [00:23:55] Speaker 01: Right. [00:23:55] Speaker 01: I mean, I guess this is the problem. [00:23:57] Speaker 01: If you look at A1, you're asking us to read in audiovisual before the phrase goods or services, and it's just not there. [00:24:06] Speaker 02: That is the argument. [00:24:09] Speaker 01: Right? [00:24:09] Speaker 01: You are asking us to read that in, that qualifier, but it's not in the text. [00:24:14] Speaker 02: Yeah. [00:24:15] Speaker 01: You agree it's not in the text, correct? [00:24:17] Speaker 02: Of course, I agree it's not your text. [00:24:19] Speaker 01: Right. [00:24:19] Speaker 01: So you're asking us to read in words that Congress chose not to include in A-1? [00:24:25] Speaker 02: Not at all, because the context of Section A-1 in the statute, the definition of consumer, has to be read within its place within the regulatory scheme that Congress envisioned here. [00:24:37] Speaker 02: And that is where, again, to go back to your questioning of counsel for plaintiff in this matter, Judge Koh, that's where the limits of the VPPA come in. [00:24:46] Speaker 02: It focuses specifically on protecting not the transactions but the privacy associated with things like video rentals, right? [00:24:53] Speaker 02: That is what led to the enactment of the VPPA in the first place. [00:24:57] Speaker 02: Judge Bork went to a local video store. [00:24:59] Speaker 02: He engaged in the rental transaction and what was disclosed was the identifiable information. [00:25:04] Speaker 01: Let me ask you about your defense on the PPPI and liability. [00:25:13] Speaker 01: It seems like your only defense on that point is that you didn't knowingly disclose the information based on your brief. [00:25:22] Speaker 01: Is that correct? [00:25:24] Speaker 01: I'm talking about B1 liability. [00:25:28] Speaker 01: From your briefing, the only defense that I could discern is that you are contesting that you didn't knowingly disclose the PII. [00:25:36] Speaker 01: Is that correct? [00:25:37] Speaker 02: Well, so I don't think it's quite correct. [00:25:39] Speaker 01: Okay, tell me what other word or phrase in B1 you are disputing other than knowingly. [00:25:46] Speaker 02: Well, it's consumer. [00:25:47] Speaker 02: And the question is the alternative argument. [00:25:50] Speaker 01: Okay, understanding you're challenging consumer. [00:25:52] Speaker 02: Yes. [00:25:53] Speaker 01: Other than consumer and knowingly, what else are you challenging for your liability defense in B1? [00:26:01] Speaker 02: Well, I think the issue I'm having with the way you're putting it, Your Honor, is how that term knowingly is addressed in our brief, right? [00:26:09] Speaker 01: So assume I disagree with you on consumer. [00:26:12] Speaker 02: Yes. [00:26:12] Speaker 01: What other defense do you have to liability under B1 other than the word knowingly disclose? [00:26:22] Speaker 02: Right. [00:26:22] Speaker 02: Well, so the full scope of that defense under the knowingly term, and this is what I do want to emphasize, is that [00:26:30] Speaker 02: It must apply both to the statutory PII and the term consumer. [00:26:35] Speaker 02: And this, again, goes back to the limitation issue that the panel was discussing with counsel for plaintiff here. [00:26:41] Speaker 01: Okay, let me ask you. [00:26:42] Speaker 01: If Healthline intentionally installed Metapixel on Healthline's website to share Facebook IDs and the videos watched with Meta, [00:26:58] Speaker 01: Tell me how that's not knowingly disclosing the PII. [00:27:04] Speaker 02: I think your question's, again, going back to your discussion with... No, I'm not going back to that. [00:27:10] Speaker 01: I want you to answer my question that I'm asking right now. [00:27:13] Speaker 02: Yes, and I'm trying to answer it by referencing this discussion, right? [00:27:16] Speaker 02: So the installation of software on our website is not enough because, as this court recognized in the Eikenberger case, [00:27:23] Speaker 02: the VPPA has a disclosing party focus, right? [00:27:27] Speaker 02: And this is part of that term knowingly in section B1. [00:27:31] Speaker 02: It looks to what the videotaped service provider can know about the information it has in hand and about whether it knows that it needs to be protected under the VPPA. [00:27:42] Speaker 02: In Eichenberger, the discussion focused on that term personally identifiable information. [00:27:47] Speaker 02: And the court adopted the ordinary person standard because when it comes to knowing disclosures, [00:27:53] Speaker 02: a videotaped service provider using that ordinary person standard has everything it needs to figure out whether this piece of information implicates the statute. [00:28:01] Speaker 02: Now, once we apply that knowing element to the consumer part of section B1, if we adopt the second circuit's articulation of the statute, the broader definition of goods or services in section A1, and an entity like Healthline [00:28:19] Speaker 02: is dealing with individuals that come and view free video content on the website, content that no one can rent by or subscribe to. [00:28:27] Speaker 02: It has no way of knowing with respect to that video interaction whether or not the person... But does that matter here when you have subscribers? [00:28:34] Speaker 01: That argument doesn't matter here when you have subscribers, right? [00:28:36] Speaker 01: You're just saying someone off the street accessing public [00:28:40] Speaker 01: videos without actually registering an account on Healthline. [00:28:45] Speaker 01: But that's not the situation here. [00:28:46] Speaker 01: So let's talk about the situation here. [00:28:48] Speaker 01: You have two subscribers. [00:28:50] Speaker 01: Right. [00:28:50] Speaker 01: OK. [00:28:51] Speaker 01: And it sounds like, from what you've said, it still all hinges on knowingly. [00:28:58] Speaker 02: Right. [00:28:58] Speaker 02: And so this is my point. [00:29:00] Speaker 01: You have no other defense other than knowingly. [00:29:02] Speaker 01: I didn't think they were consumers. [00:29:04] Speaker 01: I didn't think this was PII because they're not consumers. [00:29:08] Speaker 01: That is the defense, right? [00:29:10] Speaker 02: That's the gist of it, but the knowing element comes into play here even though these two plaintiffs are subscribers to newsletters or the Bezi website, right? [00:29:20] Speaker 02: When they visit the Healthline website for the first time, they are situated exactly the same as someone visiting the website for the first time. [00:29:29] Speaker 02: And from the perspective of the videotaped service provider, [00:29:32] Speaker 02: which again this court says is the focus of the statute. [00:29:35] Speaker 01: You're saying sometimes Healthline might violate with regard to subscribers, but sometimes they don't when it's not a subscriber. [00:29:45] Speaker 01: And because I don't know who this Facebook ID that I'm giving to Metta is, that's my defense because I'm not doing it knowingly. [00:29:54] Speaker 02: That's the defense, right? [00:29:57] Speaker 02: I would say that there is no violation without that knowing element, which is a necessary part of the statute. [00:30:02] Speaker 01: But do you agree when they're subscribers? [00:30:05] Speaker 01: Subscribers, you're giving the Facebook ID to Metta with an identification of what videos the subscriber of your website is viewing. [00:30:15] Speaker 02: I think you would have liability there in the case of something like Netflix, where if a videotaped service provider knows [00:30:22] Speaker 02: that I only provide exclusive or enhanced access to specific video content, then I know that the... Okay, where is that? [00:30:30] Speaker 01: You want to make a textual argument on that? [00:30:32] Speaker 01: Tell me where exclusive access is in here. [00:30:35] Speaker 01: I know that Judge Donato read that into his order, but where is that in the statute? [00:30:41] Speaker 02: It just comes in with the definition of the term subscriber, right? [00:30:44] Speaker 01: And this harkens back to the... Right, but you have subscribers here. [00:30:48] Speaker 01: I guess I'm really unclear. [00:30:52] Speaker 01: If you have Healthline subscribers, you're saying they don't get any benefit from being a subscriber to your website? [00:31:01] Speaker 02: And my time is up, but just if I can answer your question. [00:31:04] Speaker 01: Please answer. [00:31:04] Speaker 02: Yes. [00:31:05] Speaker 02: So the answer is yes. [00:31:07] Speaker 02: Judge Donato answered this as well. [00:31:08] Speaker 02: Yes, they are subscribers. [00:31:10] Speaker 01: He didn't cite anything. [00:31:11] Speaker 01: That was a conclusion in the last sentence of that decision. [00:31:13] Speaker 01: He didn't cite anything for that precision, right? [00:31:16] Speaker 01: He just says it bears mention that the SAC, like its predecessors, does not plausibly allege that newsletter subscribers had access to Healthline videos not available to non-subscribers or other special content reserved for subscribers, period. [00:31:28] Speaker 01: No citation, no authority, no analysis. [00:31:31] Speaker 02: Right. [00:31:31] Speaker 01: Council, were you going to answer? [00:31:34] Speaker 02: I was, if I may. [00:31:35] Speaker 02: Yes. [00:31:35] Speaker 02: Yes, I know I'm going over. [00:31:37] Speaker 04: Yeah, that's fine. [00:31:37] Speaker 04: We're taking you there, so that's fine. [00:31:39] Speaker 02: Okay, thank you. [00:31:40] Speaker 02: I appreciate it, Judge Rawlinson. [00:31:41] Speaker 02: So the answer here is that, yes, they are subscribers, but they are not subscribers as that term is used in the Video Privacy Protection Act because they don't have any allegations that ties that subscription to any video goods or services offered [00:31:56] Speaker 02: That's the question I was going to ask you. [00:31:59] Speaker 04: Is it your argument that they are subscribers to the newsletter and not subscribers to the videos? [00:32:05] Speaker 02: Absolutely, and that is consistent with the Sixth Circuit's articulation of the term consumer in the statute in the Salazar versus Paramount case. [00:32:14] Speaker 02: That is the specific conclusion that was reached by the D.C. [00:32:17] Speaker 02: Circuit just this morning in the Pelagi case, and it's the argument that we put forward here today. [00:32:21] Speaker 02: Just because these individuals subscribe to something [00:32:25] Speaker 02: does not mean that they are subscribers, as that term is used in the Video Privacy Protection Act in Section A-1. [00:32:32] Speaker 02: And that means they are not statutory consumers. [00:32:35] Speaker 04: All right. [00:32:35] Speaker 04: Thank you, counsel. [00:32:36] Speaker 02: Thank you, your honors. [00:32:37] Speaker 04: Two minutes for rebuttal. [00:32:53] Speaker 03: Thank you, Your Honor. [00:32:55] Speaker 03: Let me first start by addressing the last point that Council for Healthline made, beginning with the Pelagi decision. [00:33:02] Speaker 03: It just came down this morning. [00:33:04] Speaker 03: I haven't had a chance to study it. [00:33:06] Speaker 03: And I understand that there's a distinction of the meaningful variation canon, but I think that the core principle here is that when the plain text controls, when the plain text is unambiguous, it controls. [00:33:18] Speaker 03: And I would return to what Judge Easterbrook said from the Seventh Circuit. [00:33:23] Speaker 03: which is he reads the definition of consumer. [00:33:26] Speaker 03: It does not say subscriber of video services. [00:33:29] Speaker 03: It says subscriber of services from a videotaped service provider. [00:33:34] Speaker 04: But counsel, the fact that we have different courts interpreting this language a different way, doesn't that kind of militate against the fact that the plain text reading is the only way to analyze the statute? [00:33:49] Speaker 03: I think it does emphasize that the plain text is the right way to read the statute. [00:33:53] Speaker 03: And as Judge Koh just said, we would be reading terms into the statute, which is impermissible both under this court's president and under the Supreme Court's president. [00:34:02] Speaker 04: Well, how do you explain the varying interpretations from different courts? [00:34:08] Speaker 03: I think there's always room for argument when it comes to lawyers, and there's always room for interpretation in any statutory text. [00:34:15] Speaker 03: But when I think about [00:34:19] Speaker 03: not just whether the plain text is controlling, I start with whether the plain text leads to absurd results. [00:34:25] Speaker 03: That's what the Supreme Court has instructed. [00:34:27] Speaker 03: And here it would not lead to any absurd results to read the statute as Congress wrote it. [00:34:34] Speaker 03: Council for Healthline also noticed that there should be a focus on the transaction relating to videos. [00:34:41] Speaker 03: That doesn't make sense. [00:34:42] Speaker 03: And that appears nowhere in the act. [00:34:44] Speaker 04: Well, it is a video privacy protection act. [00:34:48] Speaker 04: The difficulty when this statute was enacted, it was a different time when we didn't have the online access and links that we could click on. [00:34:57] Speaker 04: It was a straightforward transaction. [00:34:59] Speaker 04: So we're trying to interpret a statute that was enacted before these types of access were available. [00:35:10] Speaker 04: And that's the difficulty with trying to parse the language in such a way that it [00:35:16] Speaker 04: keeps the meaning of the statute but also is applied to transactions that were not in the contemplation of Congress when they made the statute. [00:35:25] Speaker 04: That's the difficulty I'm having with this case. [00:35:27] Speaker 03: If I may briefly respond. [00:35:29] Speaker 03: Yes, please. [00:35:31] Speaker 03: When the VPPA was enacted, Congress was specifically concerned with the advancements of technology and that impact on consumer privacy. [00:35:42] Speaker 03: So this statute was written [00:35:43] Speaker 03: with advancements in technology in mind. [00:35:46] Speaker 03: That's why it doesn't just refer to pre-recorded video cassette tapes. [00:35:50] Speaker 03: It also refers to similar audiovisual material. [00:35:53] Speaker 03: And then Congress looked at the statute again in 2012. [00:35:57] Speaker 03: And that's deeply within the era of streaming video content and the internet era. [00:36:03] Speaker 04: That was contemplating like a Netflix where you get that, but not where you go to one concrete item and then link to a different item. [00:36:14] Speaker 04: That's a little bit different. [00:36:16] Speaker 03: But I think the purpose behind the statute is that the consumer transaction provides the videotaped service provider with the information that would allow it to identify a person and link that person with their video content. [00:36:30] Speaker 03: But there's nothing in the act that says that that has to come to the videotaped service provider in the same transaction. [00:36:35] Speaker 04: But then we go back to the point where is the limit to that? [00:36:39] Speaker 04: It's almost like a limitless liability. [00:36:43] Speaker 04: I don't think that Congress contemplated that. [00:36:46] Speaker 03: I don't think so because there's limitations in the definition of consumer, in the definition of videotaped service provider. [00:36:52] Speaker 03: The disclosure has to be knowing, which is always a hard standard. [00:36:55] Speaker 03: And importantly, a videotaped service provider can obtain consent. [00:37:00] Speaker 03: And in 2012, when Congress looked at the statute in light of technological advancements, they made it easier for videotaped service providers to obtain consent by saying you can do that electronically. [00:37:11] Speaker 03: and you can obtain the consent on an ongoing basis. [00:37:14] Speaker 03: It's very common on the internet to go to a website and see a banner or a pop-up that says, we collect so-and-so information, do you agree, do you not? [00:37:24] Speaker 03: And Congress made that possible for the VPPA in part to limit liability. [00:37:29] Speaker 00: Can I ask one more question? [00:37:30] Speaker 00: Are you suggesting that, I think they call it shrink wrap, you know, the sort of passive agreement that that's sufficient under the VPPA? [00:37:41] Speaker 03: Well, I think the scenario that I'm envisioning is more like a click wrap agreement, which almost uniformly has been upheld to be enforceable, particularly in the internet. [00:37:51] Speaker 03: And we were thinking about a website like Healthline. [00:37:54] Speaker 03: You could have a pop-up that would require somebody to click I accept. [00:37:58] Speaker 03: And that would fall into that click wrap bucket, which has been upheld as enforceable. [00:38:02] Speaker 04: All right. [00:38:02] Speaker 04: Thank you, counsel. [00:38:03] Speaker 04: Thank you to both counsel for your helpful arguments. [00:38:06] Speaker 04: The case just argued is submitted for decision by the court.