[00:00:01] Speaker 00: Case number 24-7022. [00:00:04] Speaker 00: Nicole Pilegi, individually and on behalf of others similarly situated at balance versus Washington newspaper publishing company, LLC. [00:00:13] Speaker 00: Mr. Hammack for the balance, Ms. [00:00:15] Speaker 00: Konopczynski for the FLE. [00:00:16] Speaker 03: Good morning. [00:00:20] Speaker 04: Good morning, your honor. [00:00:22] Speaker 04: May it please the court, I'm Joshua Hammack on behalf of Nicole Pilegi. [00:00:25] Speaker 04: I'd like to reserve two minutes for rebuttal. [00:00:28] Speaker 04: This appeal concerns what it means to be a consumer under the Video Privacy Protection Act. [00:00:34] Speaker 04: The statute defines consumer as, quote, any renter, purchaser, or subscriber of goods or services from a videotaped service provider, unquote. [00:00:44] Speaker 04: But the district court required those goods or services to be audiovisual in nature. [00:00:49] Speaker 04: Effectively, it inserted the term video or audiovisual into that statutory text. [00:00:56] Speaker 04: As this Court is no doubt aware, the Second Circuit recently resolved this exact issue, and it disagreed with the District Court's approach. [00:01:04] Speaker 04: Addressing the meaning of goods or services, it concluded, quote, the VPPA's text, structure, and purpose compel the conclusion that the phrase is not limited to audiovisual goods or services, unquote. [00:01:20] Speaker 04: And the case overruled the very precedence from the Southern District of New York that the district court here relied on to reach its decision. [00:01:28] Speaker 04: The Second Circuit got it right. [00:01:30] Speaker 04: What we're really talking about here is the VPPA's one sentence liability clause. [00:01:36] Speaker 04: We're not talking about what it means to be a consumer in the abstract. [00:01:40] Speaker 04: We're talking about consumer as that term is used in the VPPA's liability provision, a single sentence, [00:01:47] Speaker 04: alongside two other separately defined terms, video tape service provider and personally identifiable information. [00:01:55] Speaker 04: And it's important to keep in mind that the act requires all three elements together, VTSP, consumer and PII. [00:02:03] Speaker 04: Let's start with video tape service provider, which the statute defines as any person, quote, engaged in the business of rental sale or delivery of prerecorded video cassette tapes or similar audio visual materials, quote. [00:02:16] Speaker 04: Think Blockbuster, the quintessential example of a videotaped service provider, a brick and mortar store engaged in the business of renting out VHS copies of movies. [00:02:25] Speaker 03: I'd rather think about newspapers, because that's what this case is about, if that's OK. [00:02:29] Speaker 03: And my question is, how does a statute work under your definition? [00:02:36] Speaker 03: So if I pay the Washington Examiner to post a wedding announcement, [00:02:45] Speaker 03: And I have to give them contact information, things like that. [00:02:49] Speaker 03: I pay for the wedding announcement. [00:02:51] Speaker 03: Now, every time I go on their website, they have to make sure the megapixels don't follow me. [00:02:57] Speaker 04: Well, not necessarily. [00:02:58] Speaker 04: What they have to make sure they're doing is not disclosing your personally identifiable information, which is not just... I am now a purchaser. [00:03:08] Speaker 03: I fall within the means of... [00:03:09] Speaker 04: I agree you're a consumer in that scenario. [00:03:11] Speaker 03: Yes, I agree and and I'm a consumer and I go on their website. [00:03:18] Speaker 03: They can't fax me and that's your whole case is that a consumer here went on the website and they were tracking. [00:03:27] Speaker 03: Or information. [00:03:28] Speaker 03: Video watching information. [00:03:31] Speaker 04: I don't think that's the whole case. [00:03:32] Speaker 04: Because the important thing, first of all, personally identifiable information, recall, has to connect the user to specific video materials or services. [00:03:41] Speaker 03: Right. [00:03:41] Speaker 03: I go on the website and I watch videos. [00:03:43] Speaker 04: And then the VTSP has to disclose that information without informed consent. [00:03:47] Speaker 03: Well, again, it's the same. [00:03:49] Speaker 03: I don't understand how this is different from your case. [00:03:52] Speaker 03: Except she bought a newsletter. [00:03:53] Speaker 03: I'm buying a notice about a wedding. [00:03:57] Speaker 04: Right. [00:03:59] Speaker 03: We're in the same position. [00:04:00] Speaker 04: I agree that you both are consumers in that scenario. [00:04:01] Speaker 03: Yes. [00:04:02] Speaker 03: We're both consumers. [00:04:03] Speaker 03: And the issue here was that Ms. [00:04:05] Speaker 03: Is it Pledgy or Pleggy? [00:04:07] Speaker 04: Pledgy. [00:04:07] Speaker 03: Pledgy. [00:04:08] Speaker 03: Pledgy goes on the website and watches videos. [00:04:13] Speaker 03: And when she's there, they nab her video watching information, maybe some other PII, and set it off to Meta. [00:04:23] Speaker 03: Right. [00:04:24] Speaker 03: The disclosure is the violation. [00:04:26] Speaker 04: Sorry? [00:04:26] Speaker 04: The disclosure is the violation. [00:04:27] Speaker 03: I understand that. [00:04:29] Speaker 03: And so I've bought the wedding announcement. [00:04:32] Speaker 03: Right. [00:04:33] Speaker 03: And then the next afternoon, I go on the website to watch some videos. [00:04:39] Speaker 03: And they snatch my information, automatically collected, I guess is my thing, and send it off to Metta. [00:04:47] Speaker 03: That would be a violation in your view. [00:04:48] Speaker 02: Yes. [00:04:49] Speaker 03: OK. [00:04:49] Speaker 02: And that would subject the Washington Examiner to a minimum of $2,500 [00:04:58] Speaker 02: A person correct and they have 100,000 subscribers. [00:05:04] Speaker 02: Give or take sure yeah yeah so what's like 25 million dollars. [00:05:09] Speaker 02: I don't I was told there would be a math your honor. [00:05:13] Speaker 02: You were you're very confident that. [00:05:16] Speaker 02: that your client is a consumer. [00:05:19] Speaker 02: But one of the things you leave out in that equation, it seems to me, or at least don't stress, is whether the Washington Examiner is a videotape service provider. [00:05:31] Speaker 04: And there's a reason for that. [00:05:32] Speaker 04: The district court below assumed that the Washington Examiner was a VTSP without resolving that question, basically deemed it wasn't material. [00:05:40] Speaker 02: I understand that. [00:05:41] Speaker 02: But your argument with respect to that question says, well, [00:05:46] Speaker 02: stresses the video part of that video tape service provider, right? [00:05:55] Speaker 02: And so if the Washington Examiner or anything is putting out videos on their website, then they qualify as a video tape service provider. [00:06:07] Speaker 04: Well, I think they have to be in the business of providing those videos, but yes. [00:06:11] Speaker 02: What happened to the word tape? [00:06:14] Speaker 02: It seems to me that that's just as important as maybe even more important functionally than the video part of it. [00:06:23] Speaker 02: It's an object. [00:06:25] Speaker 02: It's a physical object. [00:06:28] Speaker 02: If it's a tape, I can see the argument that a DVD is the equivalent. [00:06:33] Speaker 02: But I don't see any physical item here that's being provided. [00:06:41] Speaker 02: And let me just round this off with two other thoughts and you can respond, okay. [00:06:47] Speaker 02: It does also seem to me that what we have here is a statute that technological developments is rendered obsolete and Congress really hasn't attended to it. [00:07:01] Speaker 02: And there's arguments by constitutional lawyers about the living constitution. [00:07:08] Speaker 02: I don't see why the statute ought to be a living statute for the judiciary to try to adjust it to technology that has rendered it obsolete. [00:07:20] Speaker 04: Well, so two points, Your Honor. [00:07:21] Speaker 04: I think the definition of VTSP is really the only place where you find the kind of physical, the physicality requirement. [00:07:29] Speaker 04: But it also includes kind of a catchall at the end of that definition. [00:07:34] Speaker 04: I love the catchall. [00:07:35] Speaker 04: Or similar audiovisual material. [00:07:37] Speaker 02: But that doesn't answer the question. [00:07:38] Speaker 02: Similar to what? [00:07:39] Speaker 02: Similar to tapes? [00:07:42] Speaker 02: Tapes are physical objects. [00:07:43] Speaker 02: So to be similar to a tape, it has to be a physical object. [00:07:47] Speaker 04: Well, I don't think any court has held that it has to be similar in terms of physicality. [00:07:51] Speaker 04: I think it has to be similar in terms of delivering video. [00:07:54] Speaker 02: What I care about is the precedent in this court. [00:07:57] Speaker 02: And we have no precedent dealing with that question. [00:08:02] Speaker 04: I think that's probably right, but it's also a question, Your Honor, that the district court didn't resolve. [00:08:06] Speaker 04: So I think if you want to reach out and resolve VTSP status, that's really something for the district court to decide in the first instance, not this court to resolve. [00:08:15] Speaker 02: Yeah, but I'm not willing to accept, without knowing that, I'm not willing to accept your advocacy that it's clear that [00:08:25] Speaker 02: your client was a consumer. [00:08:27] Speaker 02: I don't know that unless I know what the definition of videotape service provider is. [00:08:33] Speaker 04: Well, again, that's exactly what the district court assumed here. [00:08:37] Speaker 04: Assuming that they are a VTSP, do we meet consumer status? [00:08:41] Speaker 04: And the district court said no. [00:08:43] Speaker 04: That determination was wrong. [00:08:45] Speaker 04: The answer should have been yes. [00:08:46] Speaker 04: That's exactly what Salazar holds. [00:08:48] Speaker 04: So the answer should be yes. [00:08:50] Speaker 04: Now, remand back to the district court. [00:08:53] Speaker 02: The question I'm talking about, the tape. [00:08:56] Speaker 04: It actually did, at least maybe not directly, but it has language that sheds light on that exact question. [00:09:04] Speaker 04: It didn't analyze it. [00:09:06] Speaker 04: No, that's not true. [00:09:07] Speaker 04: It did, in fact, analyze it because it said entities that, as some part of their business, deliver video content, even if it's a relatively small part of their business. [00:09:17] Speaker 02: It's not just Wattbuster, it's other companies, too. [00:09:19] Speaker 04: It didn't analyze the meaning of tape. [00:09:23] Speaker 04: Oh, I guess that's true, Your Honor. [00:09:24] Speaker 04: They didn't focus in on the meaning of the tape particularly. [00:09:27] Speaker 04: That much is true. [00:09:30] Speaker 03: I wanted to get back to my hypothetical. [00:09:38] Speaker 03: How is this supposed to work? [00:09:41] Speaker 03: How is the Washington Examiner supposed to know which people who previously took out an ad, placed a notice in the newspaper, [00:09:53] Speaker 03: What a key chain from their gift store. [00:09:57] Speaker 03: Are the ones that are now on the web? [00:10:00] Speaker 04: Well, I mean, how are they supposed to? [00:10:01] Speaker 03: I don't understand how they should post. [00:10:02] Speaker 03: I don't understand how this works. [00:10:04] Speaker 04: There are a couple of ways for them to deal with that problem. [00:10:06] Speaker 04: One is to track consumers. [00:10:09] Speaker 04: They have a list of information about their consumers and they know if they're sharing that information with other people. [00:10:15] Speaker 04: That would be one way to do it. [00:10:16] Speaker 04: Another way to do it. [00:10:17] Speaker 03: It doesn't automatically take the information. [00:10:19] Speaker 03: This metapixel process gathers the information. [00:10:24] Speaker 03: Washington Examiner looks at it. [00:10:27] Speaker 03: and says, okay, we'll release this one, but not that one. [00:10:30] Speaker 04: Oh, I understand. [00:10:30] Speaker 04: You're saying on these specific facts, they couldn't do that because the pixel is operating behind the scenes automatically. [00:10:37] Speaker 04: That much is true. [00:10:38] Speaker 03: That was my hypothetical, which I think is identical to your case. [00:10:41] Speaker 03: I bought a wedding announcement instead of subscription. [00:10:44] Speaker 04: Absolutely. [00:10:45] Speaker 04: I agree now. [00:10:46] Speaker 03: But my point was... I mean, the reading... Sorry, just to spell out the thought here, I apologize. [00:10:53] Speaker 03: The reading that there's no nexus requirement [00:10:57] Speaker 03: between the purchase of a good and the watching of videos becomes unadministrable. [00:11:09] Speaker 03: It just requires any video service provider who's sold anything to anybody to not gather information full stock because they've got no capacity to determine which of the people on its website within the last year bought a product from them. [00:11:26] Speaker 04: I don't think it's an administrator, Your Honor. [00:11:28] Speaker 04: And I think it's true that they couldn't do it automatically the way the Pixel does now. [00:11:32] Speaker 04: They would have to have some administrative step to determine whether that individual is a consumer. [00:11:38] Speaker 04: But another way out would be to... Does the technology allow that? [00:11:40] Speaker 04: I don't know the answer of whether the existing technology allows that. [00:11:45] Speaker 04: It might require some innovation, or it might just not permit this particular use of the technology that violates consumers' privacy rights. [00:11:56] Speaker 04: But there's also, of course, informed consent. [00:11:59] Speaker 03: There's no way to differentiate who's on my website, whether they're a consumer, whether they're a purchaser, renter, subscriber, bought anything from us. [00:12:09] Speaker 03: then they have to just not collect it at all for their own purposes, let alone for meta. [00:12:16] Speaker 04: I don't think that's right. [00:12:17] Speaker 04: I don't think there's any reason they couldn't collect it for their own purposes, because again, disclosure is the thing prohibited. [00:12:23] Speaker 04: You have to have a disclosure of PII. [00:12:25] Speaker 03: You have to be disclosure to a third person, or can it be disclosure to another part of the Washington Examiner? [00:12:33] Speaker 04: I'm not sure that I've ever seen a case that involves that question either, but no, I think it has to be to a person who is not the person who is the VTSP. [00:12:43] Speaker 04: In other words, a non VTSP. [00:12:45] Speaker 03: I don't know what that means when you've got something like a newspaper that has lots of written news content. [00:12:53] Speaker 03: and has some video content, probably has different people managing the video content than writing the news stories. [00:13:02] Speaker 03: There's an editorial board over here. [00:13:05] Speaker 03: if they disclose the information within the entire entity, is that a disclosure? [00:13:10] Speaker 04: I don't think so. [00:13:10] Speaker 04: No, Your Honor. [00:13:11] Speaker 03: So it has to be someone outside the company, not outside the video service provision portions of the company. [00:13:18] Speaker 04: Correct. [00:13:19] Speaker 04: I think that's right. [00:13:19] Speaker 04: Because a VTSP is a VTSP as a unit. [00:13:23] Speaker 04: Washington Examiner as a whole is a VTSP, not just this one branch of Washington Examiner as a VTSP. [00:13:31] Speaker 04: So in other words, look entity-wide, and the disclosure has to be outside of that entity. [00:13:35] Speaker 04: to a third party who is a person under the statute. [00:13:39] Speaker 03: Okay. [00:13:40] Speaker 03: And it says that that's how you're reading the word disclosure. [00:13:43] Speaker 04: Correct. [00:13:44] Speaker 04: Yes. [00:13:45] Speaker 04: Yeah. [00:13:46] Speaker 04: And I think if. [00:13:47] Speaker 03: But so if you're right, if no nexus is required, what the statute does is simply forbid all sales by any entity that shows [00:13:59] Speaker 03: Maybe a single video on his website to third parties. [00:14:06] Speaker 04: I don't think it does that, your honor. [00:14:08] Speaker 04: And there are a couple of reasons. [00:14:09] Speaker 03: It just would, because there's no way to know when someone then comes to watch the video if they were the person who bought the newsletter or the ad. [00:14:20] Speaker 03: or your candy bar, whatever it is you want to talk about, they have no way of knowing that and there's no way of differentiating that. [00:14:26] Speaker 03: And so it's essentially a strict liability statute. [00:14:30] Speaker 03: If we do it for anybody, we're risking, we have a risk of sweeping in one person who bought something from us. [00:14:35] Speaker 04: I don't think that's right. [00:14:36] Speaker 04: And again, there are a couple of touch points. [00:14:38] Speaker 04: In this iteration of the example, you said that there's just one video on the website. [00:14:44] Speaker 04: Well, I'm not sure that just one video [00:14:48] Speaker 04: collection in comparison to all the other things that you do on the website, news and other stuff, would make you be in the business of delivering video content the way that would be required for a VTSP. [00:15:02] Speaker 04: So it's starting to sound like maybe the example here has slipped away. [00:15:08] Speaker 03: What percentage of what the Washington Examiner does is [00:15:11] Speaker 03: Word news versus video? [00:15:13] Speaker 04: I don't know the percentage. [00:15:13] Speaker 03: Well, it seems like you have to know that. [00:15:14] Speaker 03: You just said it depends on how much you do. [00:15:16] Speaker 04: No. [00:15:17] Speaker 04: Well, I'm saying it depends on whether you're in the business of delivering. [00:15:21] Speaker 03: I know. [00:15:22] Speaker 03: You said the business would depend on volume. [00:15:24] Speaker 03: You didn't like the one video situation. [00:15:26] Speaker 04: I don't think that one video necessarily would be enough to make you be in the business of delivering videos. [00:15:32] Speaker 04: I don't have a threshold in mind. [00:15:35] Speaker 03: But if that's your test, I don't have any sense of, I confess to not having been on the Washington Examiner website. [00:15:42] Speaker 03: And so I don't have any sense of what the percentiles are. [00:15:46] Speaker 03: If it were 5% video, is that in the business? [00:15:50] Speaker 04: I don't know. [00:15:51] Speaker 04: I don't know how you would even measure it in a context like this where every article has a video accompaniment. [00:15:57] Speaker 03: Every article has a video content? [00:15:58] Speaker 04: I believe that's the allegation that these videos basically appear at the top of every article and they autoplay. [00:16:04] Speaker 04: You have to turn it off to stop it from playing. [00:16:08] Speaker 03: Are these videos about the news or are these advertisement videos? [00:16:10] Speaker 04: They can be both. [00:16:11] Speaker 04: They can start with an advertisement and run into something that's related to the article. [00:16:16] Speaker 03: Okay, so now these website companies can't have ads on their websites either because there's a risk that some consumer might come onto their website. [00:16:25] Speaker 04: Why couldn't they have advertisements? [00:16:27] Speaker 03: If they're playing, all the ads I see on websites are automatically playing, as you say. [00:16:32] Speaker 03: Right. [00:16:33] Speaker 03: And if someone who's a consumer goes on, [00:16:38] Speaker 03: Unless they're not collecting any information. [00:16:40] Speaker 03: I assume the reason people want to be on there is they're getting... The reason someone wants to advertise on your website is they've gotten this information about somebody and knows that these people on this website might be interested in this product. [00:16:50] Speaker 04: Well, I think that's exactly right. [00:16:53] Speaker 03: I don't know how the advertising system works if they can't provide information about who comes to their website to the people they're asking to advertise on their website. [00:17:02] Speaker 04: It would work precisely by obtaining informed consent from the consumers whose information you're sharing. [00:17:08] Speaker 04: That's the only step. [00:17:11] Speaker 03: Unless you have a firewall that says the only people who can come on to our website, fill out this statutory informed consent form. [00:17:21] Speaker 03: You're not going to have a normal website that anybody comes to right people will not no one will be able to access it because you can't know if that person there's always a risk that any one of those people will have purchased rented or subscribe to something. [00:17:34] Speaker 04: Well hold on I guess I'm not sure I'm following now because I think that the differentiator would be whether that individual consumer or not. [00:17:41] Speaker 04: provided informed consent, basically checked. [00:17:44] Speaker 04: Yes, I'm OK with you sharing my data. [00:17:46] Speaker 03: Is that all they have to do? [00:17:47] Speaker 03: I thought your argument because they they argue that that's what Miss Pileggi did here. [00:17:51] Speaker 03: And you said no, no, no, no. [00:17:52] Speaker 03: There's this. [00:17:53] Speaker 03: I mean, I know the district court didn't decide this yet, but that no, there's a statutorily required consent form. [00:17:58] Speaker 04: That's true. [00:17:59] Speaker 03: In this case, there is a statutorily required consent form, or is it just a check? [00:18:03] Speaker 03: Yes, that's fine. [00:18:05] Speaker 03: Well, no, it has to be the statutory require than yes, isn't it? [00:18:09] Speaker 04: No, it just has to be separately set out that we are going to share your information, your video PII with third parties. [00:18:17] Speaker 04: Check yes. [00:18:18] Speaker 04: And if the consumer or the non-consumer checks yes, then share the information. [00:18:22] Speaker 04: And if not, don't share the information. [00:18:25] Speaker 04: That's simple enough. [00:18:26] Speaker 04: they're going to have to have that's going to have to be sort of the wall before anyone gets to their website everyone will have to check that box coming in every time they come in right just like any other terms of use box appears on lots of other websites yes no usually it does when you're signing up for a service i've i've never checked one of those boxes going on well that's that's a fine point you could sign up you could do it on as an entry point into signing up for a service a separate [00:18:49] Speaker 04: consent form that sets forth, we're going to share your PII as defined by the statute with third parties. [00:18:55] Speaker 04: Are you OK with it? [00:18:56] Speaker 04: Yes, no. [00:18:58] Speaker 02: The argument you're making is based on the idea that a subscriber does not have to be a subscriber of audiovisual service. [00:19:08] Speaker 02: Is that correct? [00:19:08] Speaker 04: That is absolutely correct. [00:19:10] Speaker 04: Yes. [00:19:10] Speaker 04: That's the way Congress wrote the statute. [00:19:12] Speaker 02: Right. [00:19:12] Speaker 02: But that's not the way you argued the case in the district court. [00:19:15] Speaker 04: I disagree with that. [00:19:16] Speaker 04: And this brings up the waiver argument. [00:19:19] Speaker 04: But I disagree with that wholeheartedly. [00:19:21] Speaker 04: And if you look at our brief, which is ECF 22 below, our brief opposed to the motion to dismiss, section C of that brief concerned Ms. [00:19:33] Speaker 04: Pileggi's status as a consumer. [00:19:36] Speaker 04: Part C1 had the heading, quote, plaintiff's newsletter subscription makes her a subscriber. [00:19:41] Speaker 04: and thus a consumer protected by the VPPA." [00:19:46] Speaker 04: That's the exact argument Washington Examiner now claims that we didn't make. [00:19:50] Speaker 04: There's a whole section of our brief devoted to that precise point, and on page 19 in that section, near the end of that section, Ms. [00:19:57] Speaker 04: Pileggi specifically argues, quote, as in Yershoff, plaintiff has plausibly pled that because she gave Washington Examiner her personal information, [00:20:06] Speaker 04: and signed up for a newsletter subscription, she is a consumer under the VPPA." [00:20:11] Speaker 04: Unquote. [00:20:12] Speaker 04: So there was no waiver here. [00:20:13] Speaker 04: This is the exact same argument we made below. [00:20:16] Speaker 04: There was a second argument under Part C devoted to basically even if those SDNY courts were right and it needs to be some audiovisual material, just so happens that the newsletter would meet that requirement too. [00:20:30] Speaker 04: But that's an argument in the alternative. [00:20:32] Speaker 04: It wasn't the only argument we made, and it certainly wasn't a concession that go ahead and rewrite the statute to require audio visual materials in terms of consumer status as opposed to PII. [00:20:44] Speaker 02: It seemed to me you were arguing a different point with respect to consumer. [00:20:48] Speaker 02: And it also seems to me that the district court was well acquainted with what you were arguing. [00:20:54] Speaker 02: And the district court said that plaintiff did not dispute to be a subscriber at the VPN [00:21:01] Speaker 02: subscribing to audiovisual services and not goods or services writ large. [00:21:07] Speaker 04: Well, so the district court did say those words, and it looked at Part C2, that alternative argument, when it said we made that concession. [00:21:18] Speaker 04: It ignored Part C1, which is where we said, she's a subscriber to a newsletter and thus a consumer under the VPPA. [00:21:25] Speaker 04: That's the exact same argument we made here and are making now. [00:21:28] Speaker 04: That's the exact same argument that the Second Circuit credited. [00:21:31] Speaker 04: and that we think resolves this appeal. [00:21:34] Speaker 05: On the issue of whether one has to be a purchaser to be a subscriber, isn't it relevant that in the heading of the statute as it appeared in the public law publication, and it's the same heading as in, you know, you look at the statute on Westlaw or, you know, U.S. [00:21:57] Speaker 05: Code, [00:21:58] Speaker 05: for Section 2710, it says wrongful disclosure of videotaped rental or sale records. [00:22:08] Speaker 05: So, Supreme Court has told us, and we have cases in our court telling us that you can look at those headings to help, you know, interpret the language in the statutory provision. [00:22:25] Speaker 05: So, doesn't that, [00:22:26] Speaker 05: support the argument that you've got to be a purchaser where Congress put the heading of the whole thing that's videotaped rental or sale record because it doesn't rental or sale necessarily import with purchasing. [00:22:45] Speaker 05: And so therefore, subscriber is somebody who rents for purchases [00:22:57] Speaker 05: by subscription as opposed to like one on one time basis? [00:23:02] Speaker 05: Why isn't that the best reading of the statute? [00:23:05] Speaker 04: So no, Your Honor, I don't think you can read the statute that way. [00:23:09] Speaker 04: And to get to the point where you're using a heading to interpret a provision and its meaning, you have to have some ambiguity. [00:23:16] Speaker 04: That's step one. [00:23:17] Speaker 04: Find an ambiguity that we need to read the heading to help elucidate which permissible reading is the right one. [00:23:26] Speaker 04: We don't have an ambiguity here. [00:23:28] Speaker 04: We have renter, purchaser, subscriber. [00:23:30] Speaker 05: Those are three different things. [00:23:34] Speaker 05: There's an ambiguity. [00:23:36] Speaker 05: I mean, this whole fight we're having here is about what the subscriber. [00:23:41] Speaker 05: You're saying that subscriber is an unambiguous term. [00:23:44] Speaker 04: I do think so. [00:23:45] Speaker 04: And I think there's another. [00:23:47] Speaker 05: There's some definitions that say the subscriber has to be a purchaser. [00:23:53] Speaker 05: And then there's some definitions that say that don't mention purchaser. [00:23:59] Speaker 05: So why doesn't that make it ambiguous? [00:24:03] Speaker 04: Well, even if it were ambiguous, which again, the district court didn't hold that. [00:24:07] Speaker 04: Washington Examiner never argued that precise point. [00:24:10] Speaker 04: But even if it were ambiguous, [00:24:12] Speaker 04: There's another canon that does the work before you jump to, well, let's look at just the heading and go with whatever the heading says. [00:24:20] Speaker 04: And that canon is you can't just read a term out of a statute. [00:24:23] Speaker 04: You don't read it as if Congress put in a term that has no meaning. [00:24:27] Speaker 04: It's just surplusage. [00:24:29] Speaker 04: And this reading, what you've done now, or what you're suggesting here, would read subscriber right out of the statute. [00:24:37] Speaker 04: Every subscriber under that view would be a renter. [00:24:41] Speaker 05: Subscriber is, I mean, Netflix was completely changed again precisely because they created this whole subscription method of renting DVDs. [00:25:04] Speaker 05: It didn't mean that subscribing was the same as renting. [00:25:09] Speaker 05: It meant that it was a particular type [00:25:12] Speaker 05: of renting way back in the day, I'm old enough, old enough to be your grandpa. [00:25:20] Speaker 05: Where, where, you know, I had a membership to Columbia records. [00:25:27] Speaker 05: And you as a subscriber, you know, you could get a new album or CD, mailed to you, you know, every month or periodically. [00:25:38] Speaker 05: didn't mean that subscription was the exact same thing as sale. [00:25:45] Speaker 05: It's just a different way of selling. [00:25:48] Speaker 04: Well, I think that's the problem, though. [00:25:50] Speaker 04: You're basically saying a subscriber is a subcategory of a renter or a purchaser. [00:25:55] Speaker 04: So subscriber never does any work on its own. [00:25:57] Speaker 04: It has no independent meaning. [00:26:00] Speaker 04: It's just some subset of renters or some subset of purchasers. [00:26:05] Speaker 04: But why, then, would Congress put it into the statute at all if it has no independent meaning? [00:26:09] Speaker 04: It's doing no work. [00:26:12] Speaker 04: That's exactly what the Supreme Court has many times said not to do. [00:26:16] Speaker 04: Don't read terms out of the statute. [00:26:18] Speaker 04: Don't create surplusage where you can avoid it, and here you can avoid it. [00:26:23] Speaker 04: by simply holding, well, of the two permissible meanings, assuming we have an ambiguity here, we have to adopt the one that gives some independent meaning to subscriber. [00:26:32] Speaker 04: And that means you don't have to pay money to have access to the service or the good at issue here. [00:26:39] Speaker 05: Doesn't it do some work in the sense that it's a serialized [00:26:51] Speaker 05: renting or a sale. [00:26:53] Speaker 05: You're just saying that that doesn't count because that's still just a subset of the other two items in the list. [00:27:02] Speaker 04: It sounds like the same exact principle, right? [00:27:04] Speaker 04: You're renting it for a longer period of time, or you're purchasing it in a different way. [00:27:09] Speaker 04: But what you're still doing at bottom is either renting or purchasing that good or service. [00:27:14] Speaker 04: There isn't a third category that subscribing is touching. [00:27:19] Speaker 04: That isn't one of those other two things, at least as I understood. [00:27:22] Speaker 02: The Washington examiner comply with. [00:27:27] Speaker 02: 2710 E. Of the standard. [00:27:38] Speaker 02: Under your theory. [00:27:49] Speaker 04: I'm not sure I followed. [00:27:50] Speaker 04: This is the destruction of old records one. [00:27:53] Speaker 04: Yeah. [00:27:53] Speaker 04: So information that they had already collected as of 1988 had to be destroyed within a year. [00:27:58] Speaker 02: But how do they destroy it? [00:28:03] Speaker 04: Oh, goodness. [00:28:03] Speaker 04: I don't know how in 19. [00:28:05] Speaker 04: I assumed there were paper records. [00:28:06] Speaker 02: This is even possible. [00:28:07] Speaker 02: It's my question. [00:28:09] Speaker 04: I don't know the answer, but it wasn't an issue at all in this case. [00:28:12] Speaker 02: Yeah. [00:28:15] Speaker 03: There's something about the newsletter and there's allegations that it has hyperlinks in it. [00:28:24] Speaker 03: Correct. [00:28:26] Speaker 03: And elsewhere there's allegations that there are videos on the website that if you click on immediately start playing. [00:28:38] Speaker 05: Correct. [00:28:40] Speaker 03: Do the hyperlinks in the newsletter, if you click on those, they just immediately start playing? [00:28:47] Speaker 03: Or do they take you to the website and then you have to click on the little arrow or something to get it to play? [00:28:51] Speaker 04: I believe it's the former. [00:28:52] Speaker 04: They take you to basically the website or an article on the website, which includes a video that automatically starts playing. [00:29:00] Speaker 03: But there's no allegation about that actually in your complaint. [00:29:02] Speaker 04: I don't think there is an allegation that she clicked a newsletter link and that's how she accessed an article or a video. [00:29:09] Speaker 02: It automatically starts playing. [00:29:11] Speaker 02: Does you have to click on the screen to get it to play? [00:29:16] Speaker 02: I mean, the triangle on the side? [00:29:21] Speaker 04: No, that's not the allegation contained in the complaint. [00:29:23] Speaker 04: The complaint says that the videos automatically start to play when you click the link or open the web page. [00:29:31] Speaker 03: Advertising videos are actual material provided by Washington Examiner. [00:29:36] Speaker 04: Well, again, I don't want to draw too fine a line between those things, because it might be one that runs into the other. [00:29:41] Speaker 04: It might be an advertisement that starts playing and is five seconds long or whatever, and then it runs into a video that's about the content. [00:29:52] Speaker 03: OK. [00:29:53] Speaker 03: And if I were to just go on the website, so not going through the newsletter, [00:29:58] Speaker 03: You said there's things already automatically playing. [00:30:02] Speaker 03: Are those only ads? [00:30:04] Speaker 04: I don't believe so. [00:30:05] Speaker 04: I think it's the same situation. [00:30:06] Speaker 03: Can they collect information from me if I'm just looking at the website or do I have to click on something? [00:30:14] Speaker 04: You mean like, does the pixel work? [00:30:16] Speaker 03: I just, yeah, this metapixel thing. [00:30:17] Speaker 03: If I just go to the website and I'm just looking around on it, but I haven't clicked on anything, but things are running. [00:30:24] Speaker 03: They're not collecting any information on me. [00:30:26] Speaker 04: I think they could be collecting information on you, but I'm not entirely sure in that scenario if they are, in fact. [00:30:35] Speaker 03: Thank you. [00:30:35] Speaker 04: All right. [00:30:36] Speaker 04: So for all of those reasons, Your Honors, and those in our brief, we ask that you reverse the decision, dismissing the complaint. [00:30:42] Speaker 03: We'll give you a couple of minutes for rebuttal. [00:30:56] Speaker 01: May it please the court, Grace Knofchensky on behalf of the defendant appellee, the Washington Examiner. [00:31:03] Speaker 01: The court should reject plaintiff's attempt to turn the narrow 1988 Video Privacy Protection Act into a broad internet privacy statute that would upend the modern internet. [00:31:14] Speaker 01: The act is fundamentally about protecting the privacy [00:31:17] Speaker 01: of purchasers, renters, and subscribers who request or obtain videos, not goods or services writ large. [00:31:25] Speaker 01: And as your questions indicated, Judge Millett, plaintiffs reading to extend to goods and services writ large, particularly without any knowledge, would make compliance with the statute almost impossible. [00:31:39] Speaker 01: I'd like to just give some of the facts from the amended complaint. [00:31:42] Speaker 01: The complaint alleges that the Washington Examiner... Why is compliance... I mean, you got knowledge. [00:31:48] Speaker 03: You had an arrangement with someone, they bought something, you got information from them, and you know that you got Metapixel going on your website. [00:31:55] Speaker 01: So... But we have no... There are no allegations that there is knowledge when the disclosure occurs, that the Washington Examiner knew which visitors to its website were consumers within plaintiff's definition of consumer. [00:32:10] Speaker 01: And so it did not know that the information it was disclosing belonged to a consumer. [00:32:14] Speaker 03: It did know when a consumer came on the website? [00:32:17] Speaker 01: It did not know. [00:32:18] Speaker 01: I'm sorry if I misspoke. [00:32:18] Speaker 01: It has the information. [00:32:20] Speaker 01: No, Your Honor, it has. [00:32:21] Speaker 01: When Ms. [00:32:22] Speaker 01: Pledgy visited the website, she was the same as any other individual who navigated to that website. [00:32:27] Speaker 01: What if she clicked on a link? [00:32:29] Speaker 03: I know there's not an allegation of the complaint, but if she clicked on a link in the newsletter, [00:32:33] Speaker 01: If she had clicked on a link in the newsletter, that might address our knowing requirement. [00:32:40] Speaker 03: That would be a knowing, but it also would be a nexus, the very product that she bought for this purpose of having information and things to look at. [00:32:52] Speaker 03: She clicked on the link and that's what collected her information because it automatically started playing. [00:32:57] Speaker 03: Or even without playing, maybe it collects her information. [00:32:59] Speaker 03: That would be a pretty tight next. [00:33:00] Speaker 01: I don't believe it satisfies the nexus if anyone else could navigate to that website without the link. [00:33:06] Speaker 01: I would agree. [00:33:07] Speaker 03: They couldn't do it. [00:33:08] Speaker 03: They'd have to go on the website, find the link, and then directly click on it. [00:33:12] Speaker 03: Whereas here, part of the newsletter is we serve it to you on a silver platter. [00:33:17] Speaker 03: That's what you're giving her. [00:33:19] Speaker 01: Yes, but when you visit the website, she would be no differently situated than any other. [00:33:24] Speaker 03: We're making it very easy for her to get it organized and under topics. [00:33:27] Speaker 03: So that is, they're the goods she has bought is, amongst other things, access to this video and ease of access to this video information. [00:33:37] Speaker 01: I think there is a difference there, Your Honor, but that's also not what she alleged. [00:33:42] Speaker 01: She alleged that the newsletter access was separate from- She could have remand alleged. [00:33:48] Speaker 03: If an amended complaint could have alleged she or somebody else. [00:33:51] Speaker 01: No, I don't believe so, Your Honor, because this is actually already her amended complaint in response to our first motion to dismiss. [00:33:57] Speaker 03: All right, it's a different case. [00:33:58] Speaker 03: If someone alleged, I'm trying to understand the nexus theories here. [00:34:02] Speaker 03: If someone, if I subscribe to the newsletter, [00:34:07] Speaker 03: which I assume you tout is specialized information that's easy, nice packaging for you. [00:34:12] Speaker 03: And I click on the link that's been nicely packaged for me, nicely categorized. [00:34:18] Speaker 03: I don't know if you tailor these to their interests, but whatever. [00:34:21] Speaker 03: And I click on it and immediately my information is collected because it, not me, takes me to the website. [00:34:30] Speaker 03: But all I know is a video is playing. [00:34:33] Speaker 03: There's a pretty tight nexus there. [00:34:36] Speaker 01: I think that there is a tighter nexus than in the allegations and the complaint. [00:34:40] Speaker 01: I don't think there. [00:34:42] Speaker 01: No, Your Honor. [00:34:43] Speaker 01: I think it's different if there was a paywall that existed such that the only way to access those videos was by clicking through the link in the email. [00:34:52] Speaker 01: Then I would agree with you, Your Honor, that that assuming that she paid for the access to the newsletters to go to Judge Wilkins questions that would make her a subscriber to the videos. [00:35:02] Speaker 03: that are only available on the website to people that is described as providing me videos and presumably written information. [00:35:16] Speaker 03: I have not subscribed to the video information in that newsletter. [00:35:22] Speaker 01: You have not subscribed to the video information that is then allegedly disclosed by the Washington Examiner, which is the video information on the website. [00:35:31] Speaker 03: You don't subscribe to the disclosure of your PII. [00:35:34] Speaker 03: You subscribe to the video service. [00:35:38] Speaker 01: Yeah, it's subscribing to the videos that the Washington Examiner has then allegedly disclosed. [00:35:43] Speaker 01: But again, there were no allegations about that here, even in response to our making this argument in our first motion to dismiss. [00:35:52] Speaker 01: This is already an amended complaint that was responding to those arguments here. [00:35:59] Speaker 01: And then to go to Judge Wilkins' questions about subscriber, subscriber requires a payment. [00:36:06] Speaker 01: We pointed to multiple dictionary definitions from the time of enactment, which are the only dictionary definitions that are relevant to statutory interpretation here, all of which require a payment in order to be a subscriber. [00:36:19] Speaker 05: And so the courts that- I thought I saw some that did not. [00:36:23] Speaker 05: I thought that there was a Webster's that [00:36:30] Speaker 05: Third new international dictionary. [00:36:34] Speaker 05: It says, subscribe is to enter one's name or publication as a book or newspaper or service. [00:36:45] Speaker 05: And there was no reference to payment. [00:36:48] Speaker 01: So I believe that Ellis cited a dictionary from 1981 that would probably be a contemporaneous dictionary, but the definitions that were provided in that dictionary either didn't have to do with goods and services. [00:37:01] Speaker 01: We don't dispute that John Hancock subscribed to the Declaration of Independence so that you can subscribe to [00:37:08] Speaker 01: a political party or a set of religious beliefs, but those definitions don't correspond to goods and services. [00:37:16] Speaker 01: The only definition there that kind of applied to goods and services was a subscriber of telephone equipment and someone who subscribes to telephone equipment in the 1980s was clearly paying for the telephone company to put [00:37:31] Speaker 01: the equipment in their house or place of business. [00:37:35] Speaker 01: And it's not just the dictionary definitions, Your Honor. [00:37:38] Speaker 01: It's also the use of all four terms in conjunction with one another. [00:37:43] Speaker 03: If there's a dictionary definition that said define, subscribe is to receive a periodical or service regularly on order. [00:37:53] Speaker 01: I think the on order connotes a payment there, Your Honor. [00:37:56] Speaker 01: Really? [00:37:58] Speaker 01: I think that's the most natural reading of the term, especially when you're looking at three. [00:38:03] Speaker 03: We'll sign up for the local newspapers you don't pay for, newsletters. [00:38:08] Speaker 03: Not newsletters. [00:38:09] Speaker 01: I mean, I think in the modern reading, yes, we sign up to and we are subscribers to newsletters all the time, but that's... They may not be as pervasive as they are now. [00:38:22] Speaker 03: But there were things you could sign up to and they would send you sort of a monthly mailing or twice a year or whenever it was. [00:38:29] Speaker 01: I think the preponderance of the dictionary definitions all require the payment term. [00:38:34] Speaker 01: And particularly when you combine subscriber with renter and purchaser as the definition of consumer, the use of those four terms together, statutory terms are known by the company in which they appear, [00:38:47] Speaker 01: all require a payment. [00:38:50] Speaker 01: And Congress, I'm sorry. [00:38:52] Speaker 03: Not when one would serve no purpose. [00:38:55] Speaker 01: No, Your Honor. [00:38:56] Speaker 01: I think that their subscriber is not rendered superfluous in that situation. [00:39:01] Speaker 03: If I have to pay for my subscription, am I purchasing something from the person who sends out the subscription? [00:39:08] Speaker 01: A purchaser of video goods pays for permanent control of those video goods. [00:39:16] Speaker 01: a renter pays by the good for temporary control and a subscriber pays a set amount typically in advance, whether or not they take any videos at all. [00:39:27] Speaker 01: It's a set monthly, typically recurring fee. [00:39:31] Speaker 01: So those are three different relationships. [00:39:33] Speaker 03: I don't understand. [00:39:34] Speaker 03: I don't understand that at all. [00:39:36] Speaker 03: If I, when you sign up for the newsletter, [00:39:40] Speaker 03: If there's a, would you like our newsletter? [00:39:42] Speaker 03: It's a $5 a month charge, but you get discounted prices on the videos, right? [00:39:48] Speaker 03: So that's how it's supposed to make it worthwhile to you. [00:39:52] Speaker 03: Have I purchased something from the entity that is providing that newsletter? [00:39:57] Speaker 03: You are, have I purchased something? [00:39:59] Speaker 03: Yes. [00:39:59] Speaker 01: You, you could say that you had purchased a subscription, but I think then you're reading subscription back into the statutory term. [00:40:08] Speaker 03: Sorry. [00:40:08] Speaker 03: Am I a purchaser? [00:40:09] Speaker 03: Of that subscription? [00:40:11] Speaker 01: You could be a purchaser of the subscription. [00:40:13] Speaker 03: Am I a purchaser of the subscription? [00:40:14] Speaker 03: Yes, Your Honor. [00:40:15] Speaker 03: Is a subscription a good or service provided by a video service provider? [00:40:22] Speaker 03: A subscription could be a service provided by a video service provider, but I think we're- So I will have purchased, when I sign up for this newsletter and give them my $5 so I can get discounted movie videos, I have [00:40:38] Speaker 03: purchase a good or service. [00:40:40] Speaker 01: I think you're going then to a level of abstraction where you would... I'm not abstract at all. [00:40:44] Speaker 03: You just said I've purchased it and it's a good or service. [00:40:47] Speaker 03: I see nothing abstract about that. [00:40:49] Speaker 01: I think that could actually render rental and goods also superfluous within the statute. [00:40:55] Speaker 03: Yeah, that's the problem with requiring purchases. [00:40:57] Speaker 03: If you don't require purchases, you don't require monetary payment. [00:41:01] Speaker 03: If you do pay, it could still be a subscription, but you don't require it, then they all three have independent function. [00:41:08] Speaker 01: No, Your Honor. [00:41:09] Speaker 01: The definitions of subscriber from the time primarily required payment. [00:41:15] Speaker 01: They're all used as definitions of the term consumer, which also requires payment. [00:41:21] Speaker 01: Congress also enacted a referenced Cable Privacy Act. [00:41:26] Speaker 01: I have to pay to be a consumer? [00:41:27] Speaker 01: The definitions we point to, yes, Your Honor. [00:41:30] Speaker 01: They all reference payment from the time of enactment. [00:41:34] Speaker 02: Is there any evidence that any place in the United States that was a videotape company or whatever gave their tapes away? [00:41:47] Speaker 01: I'm not aware of any evidence that they were giving tapes away. [00:41:51] Speaker 01: I am aware of evidence that we cited in our brief of subscription services that existed at the time of the enactment where you paid a set [00:42:01] Speaker 01: fee per month for unlimited access to those videos. [00:42:06] Speaker 02: Excuse me, your honor. [00:42:07] Speaker 02: Like Netflix. [00:42:08] Speaker 01: A precursor to Netflix, your honor. [00:42:10] Speaker 02: When they were doing DVDs. [00:42:12] Speaker 01: Yes, so this was still using VHSs at that time. [00:42:16] Speaker 03: Any questions? [00:42:23] Speaker 01: Sorry, I see that I'm out of time. [00:42:26] Speaker 01: With that, we would ask the district court to affirm the district court's decision below. [00:42:29] Speaker 03: Thank you. [00:42:29] Speaker 01: Thank you, your honor. [00:42:34] Speaker 03: Mr. Hammack, as I said, we'll give you two minutes. [00:42:36] Speaker 04: Thank you, Your Honors. [00:42:37] Speaker 04: Just really quickly, I want to talk about that nexus point one last time and point out the fact that Congress wrote these two separate definitions in A1 and A3 very differently. [00:42:51] Speaker 04: A1's definition of consumer requires a narrow relationship, rent purchase or subscribe, to broad content, goods or services. [00:43:00] Speaker 04: A3 does the exact opposite. [00:43:02] Speaker 04: It looks for a broad relationship, request or obtain, even a freestanding request counts here, to a very narrow set of content, specific video materials or services. [00:43:14] Speaker 04: So there's just no way. [00:43:15] Speaker 03: I'm not sure that works because it's not goods or services, period. [00:43:21] Speaker 04: From a videotaped service provider? [00:43:22] Speaker 03: It's not goods or services of a video service provider. [00:43:26] Speaker 03: It is goods or services from [00:43:29] Speaker 03: a video service provider and isn't the assumption that the good or service that come from a video service provider are going to be video services? [00:43:39] Speaker 04: Absolutely not. [00:43:40] Speaker 04: And in fact, look at A3 and it has that same formulation of from a videotaped service provider. [00:43:46] Speaker 04: What that tells you is that it is possible for a videotaped service provider to have both specific video materials and services and separately [00:43:57] Speaker 04: goods or services. [00:44:00] Speaker 04: One might be a subset of the other. [00:44:01] Speaker 04: A3 is going to have a subset of what is in A1, but they're not entirely the same. [00:44:08] Speaker 03: He's confirming what the from meant. [00:44:10] Speaker 04: I disagree, Your Honor. [00:44:11] Speaker 04: And again, that would mean that Congress used these different terms, different relationships to different content to mean the exact same thing. [00:44:19] Speaker 04: And that violates like the primary, the cardinal statutory interpretation mechanism. [00:44:24] Speaker 03: How do we read from a video service provider as requiring a nexus? [00:44:29] Speaker 03: Well, if from is the- You have that nexus in both provisions, which would be parallelism. [00:44:35] Speaker 04: then why would it have goods or services in A1 and specific video materials or services in A3? [00:44:42] Speaker 04: There'd be no reason. [00:44:43] Speaker 03: If the nexus exists in from... That's the type of personally identical information that they're including. [00:44:48] Speaker 03: Remember, it's an includes language there, and so they're specifying one particular thing. [00:44:53] Speaker 04: But we have to look at what is the content that we're talking about here? [00:44:58] Speaker 04: Are we talking about any good or service or are we talking about a video? [00:45:02] Speaker 04: And if from is the thing that makes it a video, from exists in both places, why would we need the video modifier in A3 but not A1? [00:45:11] Speaker 03: And suddenly the statute is, under your interpretation, is requiring all now audio visual service providers to stop collecting PII on who's looking at what or requesting what. [00:45:29] Speaker 03: They'd have to because there's no way otherwise [00:45:32] Speaker 03: to protect yourself against someone who happened to also have bought something from you coming on. [00:45:38] Speaker 04: Again, I disagree. [00:45:39] Speaker 04: You don't have to stop collecting it. [00:45:41] Speaker 04: You have to stop disclosing it without consent. [00:45:44] Speaker 04: That's the piece that you have to stop doing. [00:45:45] Speaker 04: I know, but that's the reason they collect. [00:45:47] Speaker 04: Well, of course that's the reason they collect. [00:45:48] Speaker 03: I don't know if Marshall & Namer even has the technology to collect it. [00:45:50] Speaker 03: They've got Facebook collecting it. [00:45:54] Speaker 04: Fine. [00:45:55] Speaker 04: I can accept that point. [00:45:56] Speaker 04: But the problem isn't the collection. [00:45:59] Speaker 03: How many websites in this country that have [00:46:03] Speaker 03: that would qualify under your view as a video service provider? [00:46:06] Speaker 03: I don't know. [00:46:07] Speaker 03: Whether it's newspaper, there's got to be hundreds of thousands, probably millions. [00:46:11] Speaker 04: There are certainly a lot. [00:46:13] Speaker 03: Is it common or uncommon to collect information from users who come to the websites? [00:46:18] Speaker 03: Do you have an idea? [00:46:19] Speaker 04: I do not know. [00:46:20] Speaker 04: I don't know. [00:46:22] Speaker 04: I mean, certainly you've got something as ubiquitous as Facebook involved, so it's probably somewhat common, but I don't have a percentage that I can quote to you today, Your Honor. [00:46:30] Speaker 03: But the point is... A lot of work for a 1980s statute about videotapes today. [00:46:34] Speaker 04: It might be that things have to change from their current form, but that isn't a reason to read out of the statute the words that actually exist there. [00:46:44] Speaker 04: that's not a good reason to read out to read out the actual terms congress enacted we have to follow those words that's the cardinal principle for statutory interpretation so again we ask that you reverse the decision below thank you thank you very much to both counsel the case is submitted