UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PAUL OSHESKE, individually and No. 23-3882 on behalf of all others similarly D.C. No. situated, 2:22-cv-09463- HDV-JC Plaintiff - Appellant,

v. OPINION SILVER CINEMAS ACQUISITION COMPANY, doing business as Landmark Theaters,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California Hernan Diego Vera, District Judge, Presiding

Argued and Submitted October 7, 2024 San Francisco, California

March 27, 2025

Before: M. Margaret McKeown, Lucy H. Koh, and Anthony D. Johnstone, Circuit Judges.

Opinion by Judge McKeown 2 OSHESKE V. SILVER CINEMAS ACQUISITION CO.

SUMMARY *

Video Privacy Protection Act

Affirming the district court’s dismissal, for failure to state a claim, of an action against Silver Cinemas Acquisition Co., doing business as Landmark Theaters, the panel held that the Video Privacy Protection Act does not apply to the business of providing a classic in-theater movie- going experience. When plaintiff Paul Osheske bought a movie ticket on Landmark’s website, Landmark shared the name of the film, the location of the showing, and Osheske’s unique Facebook identification number with Facebook. The VPPA imposes liability on any “video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider.” The term “video tape service provider” is defined in the statute as “any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” The panel held that, under a straightforward construction of the statutory text, buttressed by the statutory history, selling tickets to and providing an in-theater movie experience does not constitute a business subject to the VPPA.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. OSHESKE V. SILVER CINEMAS ACQUISITION CO. 3

COUNSEL Sophia M. Rios (argued), Berger Montague PC, La Mesa, California; Matthew I. Summers and Joshua P. Davis, Berger Montague PC, San Francisco, California; for Plaintiff-Appellant. Bonnie K. DelGobbo (argued) and Joel C. Griswold, Baker & Hostetler LLP, Chicago, Illinois; Teresa C. Chow, Baker & Hostetler LLP, Los Angeles, California; Richard B. Raile and Benjamin D. Janacek, Baker & Hostetler LLP, Washington, D.C.; for Defendant-Appellee.

OPINION McKEOWN, Circuit Judge:

Moving pictures, or movies, have been around for more than a century, and developing technologies have transformed where and how people can watch them—from the silver screen, to the home television set, to today’s mobile devices. In this appeal, we consider the scope of a decades-old law protecting viewers’ privacy, by asking whether the business of providing a classic in-theater movie- going experience is subject to the Video Privacy Protection Act (“VPPA”) of 1988. We agree with the district court that it does not.

FACTUAL BACKGROUND Paul Osheske is a Facebook user and a movie watcher. Silver Cinemas Acquisition Co., known as Landmark Theatres (“Landmark”), operates movie theaters across the United States and manages a website where people can 4 OSHESKE V. SILVER CINEMAS ACQUISITION CO.

watch trailers for upcoming films, browse showtimes, and purchase movie tickets. Landmark installed on its website a Facebook “pixel,” or “web beacon,” programmed to contact Facebook and transmit u