Only Subscribers to Audiovisual Goods or Services Qualify as “Consumers” Under the VPPA: Sixth Circuit’s Narrowing Rule in Salazar v. Paramount

Introduction

In Michael Salazar v. Paramount Global, the U.S. Court of Appeals for the Sixth Circuit held that a person is a “consumer” under the federal Video Privacy Protection Act (VPPA) only if the person rents, purchases, or subscribes to goods or services that themselves are audiovisual in nature—that is, “prerecorded video cassette tapes or similar audio visual materials.” The court affirmed dismissal of a putative class action alleging that Paramount, through its 247Sports website and the Facebook Pixel, disclosed Salazar’s video-viewing history to Facebook without his consent. While the court agreed Salazar had Article III standing, it concluded he failed to plausibly allege that his newsletter subscription made him a VPPA “consumer.”

This decision deepens a growing circuit split. The Second and Seventh Circuits have held that subscribing to any good or service from a “video tape service provider” suffices—even if the subscription is to a non-video product like an email newsletter. The Sixth Circuit rejected that view, tethering “goods or services” to the VPPA’s definition of a “video tape service provider,” thereby limiting “consumer” status to subscriptions for audiovisual goods or services. The court also affirmed the district court’s refusal to grant leave to amend where the plaintiff made only a cursory, footnote request without filing a motion or a proposed amended complaint.

Summary of the Opinion

• Standing: The Sixth Circuit independently confirmed Article III standing. Disclosure of a person’s video-viewing history to Facebook alleged a concrete privacy harm closely related to traditional privacy torts (public disclosure of private facts and intrusion upon seclusion). The harm was fairly traceable to Paramount’s installation of the Facebook Pixel and redressable by damages.
• Merits—Definition of “Consumer”: The VPPA defines “consumer” as any “renter, purchaser, or subscriber of goods or services from a video tape service provider.” Reading this phrase in context, the court held that a plaintiff qualifies as a “consumer” only if he subscribes to goods or services in the nature of audiovisual materials. An email newsletter—without plausible allegations that it is itself audiovisual or the gateway to such content—does not suffice.
• Application: Salazar alleged only that he subscribed to an online newsletter and watched videos on the 247Sports site while logged into Facebook. He did not allege that the newsletter itself contained or provided access to videos, or that videos were accessible only via the newsletter. Therefore, he failed to plead he was a “consumer.”
• Leave to Amend: Affirmed. A one-line, footnote request to amend—without a motion or proposed amended complaint—did not preserve the issue. The district court did not abuse its discretion by dismissing with prejudice.
• Dissent: Judge Bloomekatz would hold that the plain text covers any subscriber of “goods or services” from a “video tape service provider,” not only subscriptions to audiovisual materials. The dissent aligns with recent Second and Seventh Circuit decisions, arguing the majority’s limit is atextual and risks superfluity in the statute.

Analysis

Precedents Cited and Their Roles

• Article III Standing:
  • TransUnion LLC v. Ramirez, Spokeo v. Robins, Tyler v. Hennepin County, Murthy v. Missouri: Establish that intangible harms analogous to traditional privacy torts can be concrete and that the showing required scales with the litigation stage.
  • U.S. DOJ v. Reporters Committee: Recognizes privacy as control over personal information.
  • Ward v. NPAS (6th Cir.): Confirms analogical approach to intangible harms.
  • In re Nickelodeon (3d Cir.), Sterk v. Redbox (7th Cir.), Eichenberger v. ESPN (9th Cir.), Perry v. CNN (11th Cir.): Sister circuits have found standing in VPPA cases; the Sixth Circuit follows this general trend.
  • Hunstein v. Preferred Collection (11th Cir., en banc): Distinguished as involving a disclosure to a mail vendor, not to a data-hungry social media platform; also, an exact match to common-law tort elements is not required.
• Statutory Interpretation Canons:
  • Dubin v. United States, Epic Systems v. Lewis, King v. Burwell, Sackett v. EPA, West Virginia v. EPA, Home Depot v. Jackson: Emphasize reading words in context and within the overall statutory scheme.
  • Yates v. United States; Fischer v. United States (2024): Associated-words canon (noscitur a sociis) warns against reading general terms so broadly that they swallow the surrounding text.
  • Southwest Airlines v. Saxon; Diaz v. United States (2024); Hill (6th Cir.); Biden v. Nebraska (Barrett, J., concurring): Context and common sense inform the plain meaning; avoid literalism that ignores structure.
  • Christopher v. SmithKline Beecham; Scalia & Garner, Reading Law: “Includes” signals an illustrative, not exhaustive, definition—central to the court’s treatment of “personally identifiable information.”
• VPPA-Specific Authorities:
  • Salazar v. NBA (2d Cir. 2024); Gardner v. Me-TV (7th Cir. 2025): Hold that “consumer” includes subscribers to any goods or services from a video tape service provider, not limited to audiovisual goods or services.
  • Yershov v. Gannett (1st Cir. 2016): Suggests app-based subscribers can qualify as “consumers,” especially where they use the subscription to watch videos. The Sixth Circuit distinguishes Yershov on its facts.
  • Carter v. Scripps Networks (S.D.N.Y. 2023): District court reading that “subscriber” is cabined by the definition of “video tape service provider” influenced the district court and Sixth Circuit.
  • Osheske v. Silver Cinemas (9th Cir. 2025): Holds traditional movie theaters are not “video tape service providers” (not at issue here; the Sixth Circuit assumed, without deciding, that Paramount qualifies).

Legal Reasoning

The opinion turns on how to read the phrase “subscriber of goods or services from a video tape service provider” in 18 U.S.C. § 2710(a)(1). The Sixth Circuit emphasizes context. “Goods or services” cannot be read in isolation; the phrase is limited by its association with “from a video tape service provider,” which itself is defined as a person in the business of the rental, sale, or delivery of “prerecorded video cassette tapes or similar audio visual materials.” Reading the provisions together, the court holds that “consumer” covers only those who rent, purchase, or subscribe to goods or services that are themselves in the nature of audiovisual materials.

The court rejects the contrary view from the Second and Seventh Circuits, which placed the narrowing work on the VPPA’s definition of “personally identifiable information” (PII). In their view, “consumer” is broad, and PII’s requirement that the disclosure identify a person as having requested or obtained specific video materials or services solves any overbreadth. The Sixth Circuit counters that the PII definition is illustrative (“includes,” not “means”), so anchoring a central limitation there is both textually weak and structurally awkward. Better, the court says, to give “goods or services” its context-informed scope up front.

On the pleadings, Salazar alleged only a newsletter subscription and that he watched videos on 247Sports while logged into Facebook. He did not allege the newsletter was itself audiovisual or the gateway to audiovisual content (for example, embedded playable videos or access-gated links). Given that videos were accessible directly on the site (and apparently not conditioned on newsletter subscription), he failed to plausibly plead he was a VPPA “consumer.”

On leave to amend, the court applied settled Sixth Circuit practice: a passing, footnote request for amendment without a motion or proposed amended complaint does not preserve the issue. Dismissal with prejudice was therefore within the district court’s discretion.

How the Dissent Reads the Statute

Judge Bloomekatz would adhere to the “plain text”: a “consumer” is any renter, purchaser, or subscriber of any goods or services from a video tape service provider—without layering in an “audiovisual” limitation that the statute does not contain. The dissent underscores:

• Meaningful-variation and anti-superfluity canons: Congress expressly limited PII to “specific video materials or services from a video tape service provider,” but did not similarly limit “goods or services” in the “consumer” definition. Reading “consumer” to be audiovisual-only risks making the “specific video” modifier superfluous elsewhere.
• Statutory purpose: The Act aims to protect video-viewing privacy. That goal is served if “consumer” status arises from any transaction with a video provider, because that transaction can link identity to video consumption—even if the specific transaction was non-video (e.g., buying a hammer from a store that also rents videos).
• Harmony with other circuits: The dissent’s approach matches the Second Circuit’s NBA decision and the Seventh Circuit’s Gardner ruling.
• Internet-era application and 2013 amendments: Congress anticipated technological change and in 2013 facilitated one-time (including electronic) consents for ongoing disclosures, suggesting the statute was designed to operate in a digital environment rather than be cabined to VHS-era transactions.

Impact

• Circuit split crystallized:
  • Sixth Circuit (this case): A “consumer” must subscribe to audiovisual goods or services. Non-AV subscriptions (like newsletters) do not confer “consumer” status unless plausibly alleged to be AV or to provide direct AV access.
  • Second and Seventh Circuits: Any subscription or purchase from a video tape service provider can make a person a “consumer”; the PII definition limits the scope of what disclosures trigger liability.
• Pleading strategy for plaintiffs in the Sixth Circuit:
  • Plead that the subscription itself is audiovisual (e.g., the email newsletter contains embedded playable videos) or that access to videos is conditioned on or delivered through the subscribed product or service.
  • Allege the Pixel disclosure occurred while engaging with video content delivered through the subscribed channel (not just browsing public videos on a website).
• Defense strategy:
  • Early challenges in the Sixth Circuit should target “consumer” status unless the pleaded subscription clearly involves AV materials.
  • Preserve arguments on whether the defendant is a “video tape service provider” (the Sixth Circuit assumed without deciding here; other courts, like the Ninth Circuit in Osheske, have narrowed that term for particular businesses).
• Standing landscape:
  • The Sixth Circuit’s standing analysis tracks other circuits: VPPA plaintiffs generally clear the injury-in-fact hurdle when alleging unauthorized disclosure of viewing data tied to identity—especially to large data platforms.
• Class action and forum selection:
  • Given divergent definitions of “consumer,” nationwide VPPA classes may face choice-of-law and manageability challenges; forum selection becomes consequential.
  • The split and its practical stakes make this a candidate for Supreme Court review if it endures.
• Leave-to-amend practice pointer:
  • In the Sixth Circuit, a footnote request to amend is insufficient. File a motion and attach a proposed amended complaint that cures identified defects.

Complex Concepts Simplified

• What is the VPPA?
  • A federal privacy statute enacted in 1988 after Judge Robert Bork’s video rental history was published. It bars video providers from knowingly disclosing a consumer’s personally identifiable information (PII), which includes identifying a person as having requested or obtained specific video materials or services.
• Who is a “video tape service provider”?
  • Any person engaged in the business of rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials. In practice, courts apply this to modern video content providers too. The Sixth Circuit assumed Paramount fit this definition but did not decide the issue.
• Who is a “consumer”?
  • Statutory text: Any renter, purchaser, or subscriber of goods or services from a video tape service provider.
  • Sixth Circuit’s new rule: The transaction must itself be for audiovisual goods or services.
  • Other circuits: Any transaction with the provider can confer “consumer” status; the PII element does the narrowing.
• What is “personally identifiable information” (PII) under the VPPA?
  • Defined with “includes,” not “means,” indicating an illustrative list. It includes information that identifies a person as having requested or obtained specific video materials or services.
  • In practice, pairing a unique identifier (like a Facebook ID) with a person’s video-viewing activity often suffices.
• Why the fuss over “goods or services”?
  • The phrase decides who gets VPPA protection. The Sixth Circuit narrows it to audiovisual transactions; other circuits read it broadly and rely on the PII definition to limit liability.
• Facebook Pixel (what is it)?
  • Website code that sends data about user interactions (e.g., pages or videos viewed) to Facebook, often including a user’s unique Facebook ID and the URL/title of the content.
• Standing (injury in fact) in VPPA cases:
  • Courts analogize VPPA harms to long-recognized privacy torts, making alleged unauthorized disclosure of viewing history a “concrete” injury at the pleading stage.
• “Includes” versus “means” in definitions:
  • “Includes” typically signals examples; “means” is exhaustive. This opinion leverages that textual distinction to reject placing core narrowing work in the PII definition.
• Canons of interpretation used here:
  • Read words in context; avoid atomistic readings.
  • Associated-words (noscitur a sociis): General terms can be limited by neighboring specific terms.
  • Anti-superfluity: Don’t read the statute so that key words become redundant (a core point in the dissent’s critique).

Conclusion

Salazar v. Paramount sets a consequential rule in the Sixth Circuit: a plaintiff is a VPPA “consumer” only if he rents, purchases, or subscribes to audiovisual goods or services from the provider. Mere subscription to a non-AV product—like a newsletter—does not suffice, absent well-pleaded facts showing the subscription is itself audiovisual or the delivery vehicle for video content. The court’s careful, context-driven textualism places the narrowing work at the “consumer” definition, not in the PII definition, and it reinforces strict pleading and amendment practices.

This approach diverges from the Second and Seventh Circuits’ broader reading and thus intensifies a live split that will shape VPPA litigation nationwide. Plaintiffs in the Sixth Circuit must now plead a tighter nexus between their subscription and audiovisual content. Defendants will likely seize on this threshold element to seek early dismissals. On standing, however, the court confirms that VPPA claims alleging unauthorized disclosure of linked video-viewing data generally clear Article III’s injury hurdle. Given the split and the ubiquity of Pixel-based suits, this case is poised to influence forum strategy, class certification dynamics, and potentially invite Supreme Court review.

Key Takeaways

• New Sixth Circuit rule: Only subscribers to audiovisual goods or services are “consumers” under the VPPA.
• Newsletter subscriptions are insufficient unless plausibly alleged to deliver or gate access to videos.
• Standing is satisfied by alleged unauthorized disclosure of video-viewing data linked to identity.
• To preserve amendment, file a motion and proposed amended complaint—footnote requests are inadequate in the Sixth Circuit.
• Active circuit split (2d/7th vs. 6th) may prompt Supreme Court review; forum selection is now strategic.