(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

April 4 (Reuters) - As a person of a certain age, I

remember when the height of home entertainment was going to the

video store to rent a movie.

The technology is obsolete, but a 1988 law protecting the

privacy of videotape renters continues to spark legal fights as

judges grapple with how broadly the statute applies to

technology today.

The latest showdown came Thursday, when a divided 6th U.S.

Circuit Court of Appeals panel nixed a proposed class action

against Paramount Global ( PARAA ) under the Video Privacy Protection Act.

The lead plaintiff, who subscribed to Paramount's 247Sports

e-newsletter about college athletics, didn't count as a

"consumer" under the law, the Cincinnati, Ohio-based court

ruled. In upholding the lower court's decision to dismiss the

case, the majority found the newsletter was not audio-visual

content covered by the law.

The 2nd Circuit in New York and the Chicago-based 7th

Circuit in near-identical cases recently reached the opposite

conclusion. (Here and here.) Yet another case is pending before

the D.C. Circuit, which heard oral arguments in February. All

suggest the issue may be ripe for U.S. Supreme Court review,

especially given its implications for targeted online

advertising - but more on that later.

Sometimes called "the Bork bill," the video privacy law

might sound like a relic from the days of big hair and leg

warmers. It was enacted after a video store clerk gave a

newspaper reporter a list of 146 movies rented by then-U.S.

Supreme Court nominee Judge Robert Bork and his family. (He

liked Hitchcock films.)

The law allows consumers to assert claims against any "video

tape service provider" for disclosing their personally

identifiable information about specific "audio visual materials"

to third parties without express consent. Penalties are steep:

up to $2,500 per violation, and successful plaintiffs can also

recover legal fees.

The question before the 6th Circuit was how broadly to apply

the law in today's online environment, where free video content

is ubiquitous on many company websites.

Bailey Glasser partner Joshua Hammack, who represented

plaintiff Michael Salazar, declined comment on the decision.

Salazar filed the would-be class action against Paramount in

Nashville federal court in 2022. He alleged Paramount

surreptitiously installed Meta Platform subsidiary Facebook's

tracking pixel - a code that allows Facebook to collect the data

of website users who also have a Facebook account - on its

247Sports.com website. Paramount then collected data about his

identity and the videos he watched and disclosed that

information to Facebook without his consent, he alleged.

Meta was not a party to the case and did not respond to a

request for comment.

The majority decision by Judge John Nalbandian, who was

joined by Senior Judge Alice Batchelder, turned on what "goods

or services" a person must rent, purchase or subscribe to in

order to qualify as a "consumer" under the law. Are such goods

or services limited to audio-visual content-or do they "extend

to any and all products or services that a store could provide?"

Here, Salazar argued that he became a 247Sports.com

subscriber (and thus covered under the video privacy law) when

he signed up for its newsletter, which "contained links to

videos, directed subscribers to video content, and otherwise

enticed or encouraged them to watch Paramount's videos."

That doesn't cut it, the majority found.

"Salazar did not plausibly allege that the newsletter itself was

an 'audio visual material,' " the 6th Circuit panel held.

Subscribing to it "was not enough to render him a 'consumer'"

under the law.

Paramount lead counsel David Yohai, a partner at Weil,

Gotshal & Manges, said via email that the Sixth Circuit made

"the correct conclusion on this statute." A Paramount

spokesperson declined comment.

Judge Rachel Bloomekatz in her dissent argued that

interpretation is too narrow. "Salazar is a consumer based on

the plain meaning of 'goods or services from a video tape

service provider,' " she wrote - and Paramount, which is in the

business of delivering video content, counts as such a provider.

Her reasoning is in line with a decision last fall by the

2nd Circuit in a case in which Salazar was also the lead

plaintiff. In a suit against the National Basketball

Association, he made the now-familiar argument that when he

signed up for a free newsletter and later watched videos on the

NBA's website, the league improperly allowed Facebook to harvest

his personal data.

The 2nd Circuit let his proposed class action proceed,

concluding he was indeed a consumer under the video privacy law.

In a petition for review now pending before the U.S. Supreme

Court, the NBA argues the appeals court got it wrong -- and that

the decision, if it stands, jeopardizes widespread data-use

practices by websites that offer audiovisual content.

By extending the video privacy law to cover "anyone who

purchases anything from any business that puts out any video

content, even free content on a public website," NBA lawyers

from Skadden Arps wrote, the decision "endangers the web

economy."