[00:00:00] Speaker 02:
Good morning and welcome.

[00:00:04] Speaker 02:
Judge McEwen, Judge Johnstone, and I are so pleased that you're able to join us today.

[00:00:08] Speaker 02:
Thank you for coming.

[00:00:10] Speaker 02:
We have a number of matters that were submitted on the briefs.

[00:00:13] Speaker 02:
Those are Perez Garcia versus Garland, Zapierra Martinez versus Garland, Ouvray versus National Labor Relations Board.

[00:00:23] Speaker 02:
And the remaining three cases will be argued.

[00:00:27] Speaker 02:
First matter is 10 minutes per side.

[00:00:29] Speaker 02:
So if counsel would like to specify how much time you'd like to reserve for rebuttal.

[00:00:48] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:51] Speaker 04:
Sophia Rios from Berger-Montag on behalf of plaintiff appellant Paul Oshosky.

[00:00:56] Speaker 04:
I'd like to reserve three minutes of my time for rebuttal.

[00:01:00] Speaker 01:
Go ahead, please.

[00:01:02] Speaker 04:
The Video Privacy Protection Act protects the privacy of consumer data revealing movie choices.

[00:01:09] Speaker 04:
Congress intended to protect the privacy of that data, regardless of the business model or technology used to deliver the movies to consumers.

[00:01:18] Speaker 04:
and it did a remarkably good job at achieving that goal.

[00:01:21] Speaker 04:
The law that was passed in 1988 has broad language that has remained relevant to this day, even though technology has changed the way that businesses transact with and deliver movies to consumers.

[00:01:35] Speaker 04:
Landmark's interpretation undoes much of the good work of Congress.

[00:01:39] Speaker 00:
Ms.

[00:01:39] Speaker 00:
Rios, what do we do about the fact that the motion picture technology was well established and they seem to choose not to use those terms?

[00:01:49] Speaker 04:
Congress did not identify any providers in the statute or in the legislative history.

[00:01:55] Speaker 04:
Instead, they identified conduct that would qualify a provider.

[00:01:59] Speaker 04:
Video rental stores are not even mentioned in the text of the statute.

[00:02:04] Speaker 00:
Well, video tape service provider is a start, and then we're looking for things similar to that.

[00:02:11] Speaker 04:
Yes, so movie theaters have always been in the business of delivering movies to consumers.

[00:02:18] Speaker 04:
And so it is not plaintiff's position that changing technology for the delivery of movies has brought movie theaters within the scope of the act.

[00:02:27] Speaker 04:
Instead, they have always been within the scope of the act.

[00:02:30] Speaker 04:
It is now the way that consumers purchase movie tickets

[00:02:34] Speaker 02:
But didn't you make a different argument?

[00:02:37] Speaker 02:
In your reply brief, you actually said, no, movie theaters were not included in the act because there were no credit card transactions.

[00:02:44] Speaker 02:
at the time this law was enacted, and everything was transacted in cash.

[00:02:48] Speaker 02:
So I'm hearing you actually say something different this morning.

[00:02:52] Speaker 04:
So plaintiff's position is that movie theaters have always been providers.

[00:02:55] Speaker 04:
However, they did not have to worry about complying with the law because they had none of the data that is regulated by the act.

[00:03:02] Speaker 02:
There was no personally... So you're conceding at the time this act did not envision encompassing movie theaters?

[00:03:08] Speaker 02:
You might quibble with the reason why, but you agreeing at the time it was not envisioning movie theaters being covered?

[00:03:15] Speaker 04:
Congress did have at the forefront of its mind a video rental store when it passed the Act, but it drafted such broad language so that it would be flexible enough to apply to different business models, including movie theaters.

[00:03:27] Speaker 03:
Well, it had the opportunity to amend the Act, which it did, and it didn't do anything that would necessarily bring movie theaters within the scope of the Act, did it?

[00:03:37] Speaker 04:
No, it did not change the definition of provider in any way because that language was already broad enough to

[00:03:45] Speaker 04:
apply to changing technology.

[00:03:48] Speaker 04:
And movie theaters are a prime example of changing technology, even since 2013.

[00:03:53] Speaker 04:
Movie ticket sales online were just a small portion of overall ticket sales in 2013.

[00:04:00] Speaker 03:
I think we're kind of getting far afield from the statute at this point.

[00:04:04] Speaker 03:
So if you go back and you look at rental, sale, and delivery, let's take the first of those two.

[00:04:11] Speaker 03:
Do you contend that movie theaters rent

[00:04:15] Speaker 03:
the movie to the participants or the moviegoers?

[00:04:19] Speaker 04:
Plaintiffs rely primarily on the deaf.

[00:04:20] Speaker 03:
No, I'm just asking yes or no.

[00:04:22] Speaker 03:
Does rental apply to the movie theater business?

[00:04:26] Speaker 04:
It could apply to movie theater business.

[00:04:29] Speaker 04:
How?

[00:04:30] Speaker 04:
So to rent is to a temporary enjoyment of a movie for a set period of time.

[00:04:36] Speaker 04:
When you enter a movie theater, you have access to that movie.

[00:04:39] Speaker 03:
So you would say that when we go to the movies that

[00:04:43] Speaker 03:
Disney or whomever is renting the movie to us.

[00:04:46] Speaker 03:
I mean, I find that to be a fairly extreme interpretation of the statue.

[00:04:52] Speaker 04:
And that's not plaintiff's primary interpretation of the statue.

[00:04:55] Speaker 03:
Then I'll ask you the next one.

[00:04:56] Speaker 03:
When you go to a movie theater, is the theater selling you the movie in your view?

[00:05:03] Speaker 03:
No, they are not selling you the movie.

[00:05:04] Speaker 03:
So then the third prong, which I know you focused on, is deliver.

[00:05:08] Speaker 03:
But when we're looking at statutes, we do have to look at the kind of the cousins or the relatives of what is in the statute, rental, sale, and delivery.

[00:05:18] Speaker 03:
So you're saying that when you go to a movie theater, that the theater is actually delivering to you a movie.

[00:05:28] Speaker 03:
Yes, Your Honor.

[00:05:29] Speaker 03:
And do you have any possessory or other right

[00:05:33] Speaker 03:
during that transitory time that you sit in the movie theater and watch the movie?

[00:05:38] Speaker 04:
So the text does not require a transfer of a possessory interest, but a consumer, when they purchase a movie ticket, does have a right to enter the theater and view that movie.

[00:05:49] Speaker 04:
If they aren't able to view the movie for whatever reason, the theater does not play the movie, then they're entitled to a refund of the price that they paid.

[00:05:58] Speaker 04:
Yes, movie theaters do.

[00:05:59] Speaker 03:
Right, that's true, but that doesn't necessarily mean that movie theater comes under this videotape service provider provision.

[00:06:09] Speaker 03:
I mean, you go in and they say, oh, the movie's canceled.

[00:06:12] Speaker 03:
You say, OK, I would like my money back.

[00:06:14] Speaker 03:
But that doesn't have anything to do with this statute, does it?

[00:06:18] Speaker 04:
Well, the question was whether movies transfer a possessory interest in the movie itself.

[00:06:23] Speaker 04:
And in that way, because you're entitled to a refund, I believe the answer is yes.

[00:06:28] Speaker 04:
But backing up a little bit, the term delivery is commonly used in the context of movie theaters.

[00:06:36] Speaker 04:
Even the Supreme Court has quoted the Georgia Supreme Court in Paris Adult Theater to say that the delivery of obscene material is not protected by the First Amendment.

[00:06:47] Speaker 04:
Now they were talking about adult movies in a theater and they used the two words that are found in the statute, delivery and material.

[00:06:56] Speaker 00:
Ms.

[00:06:57] Speaker 00:
Rios, is delivery a more natural fit to the distributor of the movie?

[00:07:03] Speaker 00:
I mean, it seems like if we've got materials and you refer to a mention of open reel movies in the legislative history, isn't it the distributor who's delivering that to the movie theater, not the movie theater that's distributing that to its customers?

[00:07:19] Speaker 04:
So in the context of the act, the provider is interacting or transacting directly with the consumer.

[00:07:25] Speaker 04:
And so a distributor would not be a provider under the act because they don't have that personally identifiable information for a consumer.

[00:07:37] Speaker 00:
But the theater is the one that maintains possession of the movie the entire time, the materials, right?

[00:07:44] Speaker 04:
That's correct.

[00:07:46] Speaker 00:
So how does the consumer take delivery or rent the movie at all when it's sitting back there in the projection booth?

[00:07:55] Speaker 04:
So the consumer is sitting in a theater and receiving the audio visual materials, literally the light and sound that make up a movie.

[00:08:03] Speaker 04:
And materials has been used to refer to the video content itself.

[00:08:09] Speaker 04:
Take, for example, the copyright context that defendant sites throughout

[00:08:12] Speaker 04:
It's brief.

[00:08:13] Speaker 04:
It refers to the copyrighted materials.

[00:08:16] Speaker 04:
There it's not referring to the tape or the video cassette tape that the movie is recorded on.

[00:08:23] Speaker 04:
It's referring to the video content itself that is copyrighted.

[00:08:30] Speaker 04:
I'd like to reserve the rest of my time for a bottle.

[00:08:32] Speaker 02:
Can I ask you a question since we mentioned legislative history?

[00:08:34] Speaker 02:
Are we supposed to just ignore the places in the legislative history where it talks about the privacy of what you watch and read in your own home?

[00:08:42] Speaker 02:
Should we just ignore that?

[00:08:43] Speaker 02:
Is that irrelevant?

[00:08:45] Speaker 04:
No, Your Honor, you do not have to ignore it.

[00:08:47] Speaker 04:
Those are vague references that are not made in the context of the definition of provider.

[00:08:52] Speaker 04:
So you should not rely on those references to narrow the definition of provider.

[00:08:58] Speaker 02:
But the statute, Section 2710, wrongful disclosure of videotape rental or sale records, and it goes on about pre-recorded videocassette tapes, it does seem to be consistent with that legislative history, doesn't it?

[00:09:10] Speaker 04:
No, because the text includes or delivery in a disjunctive list.

[00:09:15] Speaker 04:
The text is broader than the heading of the act.

[00:09:23] Speaker 04:
If there are no more questions at this time, I'll reserve the rest of my time for rebuttal.

[00:09:27] Speaker 02:
You have a minute, 37 seconds.

[00:09:40] Speaker 01:
May it please the court, my name is Bonnie Delgado and I represent Silver Cinema's acquisition company, the defendant appellee in this matter.

[00:09:48] Speaker 01:
They do business as landmark theaters.

[00:09:51] Speaker 01:
This appeal presents an issue of statutory interpretation.

[00:09:54] Speaker 01:
So the focus is on the language of the statute that Congress gave us.

[00:09:59] Speaker 01:
And because that language is clear, that's where this appeal begins and ends.

[00:10:04] Speaker 01:
The language that Congress gave us to define the term video tape service provider is any person engaged in the business in or affecting interstate or foreign commerce of rental sale or delivery of pre-recorded video cassette tapes or similar audio visual materials.

[00:10:27] Speaker 01:
That sequence, rental sale or delivery, followed by the word of, followed by pre-recorded video cassette tapes or similar audio visual materials, indicates that the statute covers businesses that either rent, sell, or deliver pre-recorded video cassette tapes.

[00:10:44] Speaker 02:
Landmark's own advertisements say that you have the best reputation for delivering film.

[00:10:50] Speaker 01:
And context is always key when interpreting a statutory provision.

[00:10:54] Speaker 01:
So what we have to look at here is the context that delivery is used in this particular provision in defining a videotape service provider.

[00:11:02] Speaker 01:
The word delivery in this provision follows the terms rental or sale.

[00:11:08] Speaker 01:
Rental, sale or delivery of and then the delivery has to be of either tapes or delivery of materials similar to tapes.

[00:11:18] Speaker 01:
It doesn't say delivery using.

[00:11:21] Speaker 01:
And the beginning part of that sequence, as the court's questioning illustrated earlier, the first two words, rental and sale, they embody the concept of some form of transfer of a possessory interest or control in the tapes or in the materials, because that's what the statute says.

[00:11:39] Speaker 03:
So is it your view that you need this possessory interest in order to fall within the statute?

[00:11:48] Speaker 01:
you would need to have some kind of interest, yes, in the tapes or in the materials that are similar to tapes in order to take delivery.

[00:11:57] Speaker 03:
Council said that, of course, technology has changed dramatically since the enactment of these provisions, and we now have all kind of streaming services.

[00:12:07] Speaker 03:
So in your view, would something like Netflix or Hulu qualify as a videotape service provider?

[00:12:15] Speaker 01:
I think that's an issue that should be decided in a case that involves a streaming service.

[00:12:20] Speaker 01:
plaintiff's narrative on streaming services focuses on whether the act should apply to technology that developed after the statute was passed, but this appeal concerns movie theaters, which I realize that that's not what the case is, but I'm trying to understand the context of the statute now.

[00:12:39] Speaker 03:
in 2024.

[00:12:41] Speaker 03:
What is your position on whether or not a Netflix or a Hulu or one of these other streaming services would fall within the statute?

[00:12:53] Speaker 01:
I don't think it's an issue that needs to be decided.

[00:12:55] Speaker 03:
I know you don't think it's an issue that needs to be decided, but it is a question I would like answered.

[00:13:00] Speaker 01:
I think an important distinction between the way that a streaming service works and what a movie theater business does is that even in the context of a streaming service, you are gaining some form of possession or control over the video materials because you can stop them, you can rewind them, you can watch them when and where you want.

[00:13:20] Speaker 01:
And so when Congress constructed this reference to prerecorded video cassette tapes or similar audio visual materials, at a very minimum,

[00:13:29] Speaker 01:
That reference needs to mean materials over which you gained the ability to watch when and where you want.

[00:13:36] Speaker 01:
You have some form of possession or control over the materials.

[00:13:41] Speaker 01:
And that simply doesn't happen in a theater.

[00:13:42] Speaker 01:
If you show up late, if you want to go refill your popcorn halfway through or take a restroom break, you can't stop it or pause it or rewind it because you haven't taken an interest in the audiovisual materials.

[00:13:55] Speaker 01:
You've just bought

[00:13:56] Speaker 01:
a ticket, a license to be present at an event.

[00:13:59] Speaker 00:
And you miss out.

[00:14:00] Speaker 00:
Ms.

[00:14:00] Speaker 00:
Delgado, I guess thanks for pursuing this, because we do have to try to square this up.

[00:14:05] Speaker 00:
We'd like to square that up with some of the other cases, but what do we do, for example, with a case like the Vizio case, where I think the court there described a supporting ecosystem to seamlessly deliver video content to consumers, referring here to the TV vendor.

[00:14:25] Speaker 00:
In other words,

[00:14:26] Speaker 00:
the person who had the screen, not the person who had the content.

[00:14:31] Speaker 00:
Is there a way to reconcile this case and that in your view?

[00:14:36] Speaker 01:
It is a non-binding trial court opinion, but in any event, you're still looking at a company that sold a technology where the technology was used by the consumer to view video content.

[00:14:50] Speaker 01:
So again, in the context of a smart TV,

[00:14:56] Speaker 01:
a consumer would still have the ability with a smart TV and the apps on a smart TV to have some kind of control over the video content.

[00:15:03] Speaker 00:
Should it really turn on that kind of control?

[00:15:06] Speaker 00:
I guess I recall that there might be some video streaming services where you can rent something only for 24 hours or it must stream continuously.

[00:15:20] Speaker 00:
Should our interpretation of the broad terms of this act

[00:15:23] Speaker 00:
turn on such minute differences in terms of what you can accomplish with a remote control?

[00:15:29] Speaker 01:
Again, I think this, you have to look at the context of rental, sale, or delivery.

[00:15:37] Speaker 01:
Given that context, given that it starts off with the terms rental or sale, there does have to be some kind of a transfer of an interest in the materials themselves.

[00:15:48] Speaker 01:
You never get any kind of interest in any video materials at all when you go to a theater.

[00:15:55] Speaker 01:
You just have a license to be present for that exhibition of the film.

[00:16:00] Speaker 01:
But you never have an interest in the actual materials.

[00:16:03] Speaker 01:
And notably, this statute references and covers only pre-recorded video cassette tapes and similar, similar

[00:16:14] Speaker 01:
audiovisual materials.

[00:16:16] Speaker 01:
So the statute doesn't even cover all audiovisual materials, it expressly covers only those that are similar to pre-recorded video cassette tapes.

[00:16:26] Speaker 01:
particularly at the time this statute was passed, tapes and items similar to tapes would be the types of items that you could rent and then rent or purchase or have delivered to your home.

[00:16:40] Speaker 01:
And then you would have the option to control when and where you were going to view those materials because your interest is in the materials themselves.

[00:16:48] Speaker 01:
Something that doesn't happen.

[00:16:49] Speaker 03:
As far as the delivery goes, you've indicated, I mean, there's a certain capacious nature of delivery and how the word

[00:16:56] Speaker 03:
is used, like you are delivering your remarks to us, for example, do you think that the word is ambiguous in the statute and we should look at legislative history, or what's your view on how we best interpret the word delivery?

[00:17:16] Speaker 01:
I think the context of the statute gives us everything that we need to interpret delivery in the manner that we're advocating this morning and in our briefs.

[00:17:24] Speaker 01:
I don't think we need to even look to legislative history, but to the extent the court does feel that it would be useful to look to legislative history, the legislative history only reinforces the position that we're advocating here.

[00:17:37] Speaker 01:
The legislative history is fairly extensive.

[00:17:40] Speaker 01:
It uses the word video over 50 times.

[00:17:42] Speaker 01:
It references movies only three times, all in the context of talking about movies that you view in one home.

[00:17:48] Speaker 01:
And it references movie theaters zero times, not even once.

[00:17:53] Speaker 01:
But you would agree the statute also doesn't mention home or view at all, correct?

[00:17:58] Speaker 01:
The statutory language doesn't use the terms home or view.

[00:18:03] Speaker 01:
It uses the terms pre-recorded video cassette tapes and similar materials.

[00:18:07] Speaker 02:
But how different is it if you go to a video rental store, everyone in line can see what you're browsing.

[00:18:14] Speaker 02:
Everyone in line can see what you are actually purchasing to view.

[00:18:18] Speaker 02:
So it just doesn't seem that there's a material difference in terms of the privacy interest there.

[00:18:24] Speaker 02:
I know you argue in your brief, oh, well, you can always go and rent your movie when the store is empty.

[00:18:30] Speaker 02:
But that's true of a movie theater, right?

[00:18:32] Speaker 02:
You go to 8.30 a.m.

[00:18:33] Speaker 02:
showing and you'd be the only one there.

[00:18:34] Speaker 02:
No one would see what you're watching.

[00:18:35] Speaker 02:
So how is it really materially distinct?

[00:18:39] Speaker 01:
I think the business models are very different because in a video store, if you really did want to preserve your personal privacy, you could just wait and go when the store was empty.

[00:18:49] Speaker 01:
You could put your items in a bag.

[00:18:51] Speaker 01:
You could wait to get in the checkout line until no one else was behind you.

[00:18:56] Speaker 01:
In a movie theater, if you've purchased a ticket to the film, you're going to be sitting in that theater for 90 minutes or two hours or however long the runtime of your film is.

[00:19:07] Speaker 01:
It's unlikely you're going to be the only person in the theater at that time.

[00:19:11] Speaker 01:
It's just very different interests that would be implicated in terms of whether it's the type of materials that you could view at a time and place of your choosing versus the types of materials that are always in public.

[00:19:22] Speaker 01:
But you would agree the interest would be the same if the theater happens to be empty?

[00:19:27] Speaker 01:
I still think it's a very different business model and what you would have to, I don't think it's reasonable to have any kind of expectation of privacy in your attendance at a public theater where you're going to sit somewhere for 90 minutes or two hours.

[00:19:42] Speaker 00:
I guess the statute, if I may take you over your time a bit with one question,

[00:19:49] Speaker 00:
The statute refers to personally identifying information, and we haven't talked about that much right now, but isn't there enough on the complaint for us to find whether or not movie theaters are covered here that your client did, at least according to the allegations on the complaint, which you must take as true, share personally identifying information, or at least there's a factual question as to whether those pixels accomplished that?

[00:20:13] Speaker 01:
I don't think so we below we also moved on the basis that plaintiff had not alleged that there was a disclosure of personally identifiable information or PII that wasn't a basis that the district court addressed it wasn't one plaintiff addressed in the briefing and so.

[00:20:30] Speaker 01:
it's probably an issue that would be best addressed by the lower court in the first instance to the extent that the videotape service provider angle wouldn't resolve the appeal, but I think that gateway definition of videotape service provider is the cleanest and easiest way to resolve that appeal.

[00:20:52] Speaker 01:
Okay, thank you.

[00:20:54] Speaker 01:
Thank you.

[00:21:06] Speaker 04:
Your honors, the definition of deliver and materials advanced by defendant landmark is so narrow that it would essentially render the statute a dead letter.

[00:21:17] Speaker 04:
But there is no transfer of possessory interest required by the word delivery.

[00:21:23] Speaker 04:
And I'd like to mention the statutory structure, which is inconsistent with such a requirement.

[00:21:28] Speaker 04:
And that's because services were central to the act.

[00:21:31] Speaker 04:
They're included

[00:21:32] Speaker 04:
in all three primary definitions of the Act, both video materials and services.

[00:21:39] Speaker 04:
That's in the text itself of the terms consumer and personally identifiable information, and in the term we're interpreting today, videotape service provider.

[00:21:49] Speaker 04:
Services are not physical, nor are they possessed by the consumers who receive them.

[00:21:54] Speaker 02:
Your no possessory interest argument requires us to read in the limitation that it can't be a tangible object, is that right?

[00:22:01] Speaker 02:
That is right.

[00:22:02] Speaker 04:
The Act is not limited to tangible objects.

[00:22:05] Speaker 04:
Materials, as Congress intended, was to refer to the video content itself.

[00:22:11] Speaker 04:
Why should we read in that limitation, non-tangible?

[00:22:15] Speaker 04:
I don't think it's a limitation, Your Honor.

[00:22:19] Speaker 04:
The limitation is it's about the video content, not whether it's physical or not.

[00:22:25] Speaker 04:
And that's consistent with the court's finding in the Netflix decision, for example, where materials was interpreted to mean something like reading material.

[00:22:34] Speaker 04:
It's video content.

[00:22:37] Speaker 04:
And so, yes, defendant is advocating for an interpretation of the term materials that would limit it to tangible items, tapes, and things like tapes.

[00:22:47] Speaker 04:
But consumers do not watch video on or rent or access purchase video on tapes or things like tapes anymore.

[00:22:54] Speaker 04:
And so it would essentially render the act a dead letter.

[00:22:59] Speaker 04:
I would also like to talk about the legislative history briefly you mentioned.

[00:23:02] Speaker 04:
The purpose was to promote intellectual freedom.

[00:23:05] Speaker 04:
Now, the risk to intellectual freedom is the same when you disclose a list of movies that you've selected, regardless of whether you rented those movies from a video rental store or whether you purchased movie tickets for them.

[00:23:19] Speaker 04:
In either case, you can be mocked and judged if that list of movies

[00:23:25] Speaker 04:
is disclosed without your consent.

[00:23:27] Speaker 04:
And that was just as Judge Robert Bork was before the act was passed.

[00:23:31] Speaker 04:
So the privacy interest here is the same, regardless of how the consumer accesses the movies at issue.

[00:23:40] Speaker 02:
You've gone a minute over your time.

[00:23:42] Speaker 02:
If my colleagues don't have any further questions, I'm going to thank you both for the very helpful argument.

[00:23:47] Speaker 02:
I really appreciate that.