Can buying a video game on a website using pixel technology make you a Video Privacy Protection Act (VPPA) plaintiff?
Not so fast, says the U.S. District Court for the Central District of California. In a recent decision, the court made it clear: simply purchasing a game doesn't unlock the door to a VPPA claim. Without a controlling U.S. Court of Appeals for the Ninth Circuit precedent, the court looked to other jurisdictions and held that plaintiffs must do more than just allege a game purchase—they need to show the game actually contains "cut scenes" or other prerecorded video content to even get in the game. In Garcia v. Bandai Namco Entertainment America Inc., the court hit pause on a plaintiff's VPPA claim, finding no allegations of any qualifying video content. At the same time, the court stopped short of deciding whether simply alleging the presence of cut scenes in purchased video games would meet the VPPA's requirements in this jurisdiction, leaving that issue for another day.
Meanwhile, in Pileggi v. Washington Newspaper Publishing Company LLC, the U.S. Court of Appeals for the District of Columbia Circuit weighed in on who counts as a VPPA "consumer," adding fuel to a growing circuit split. The court held that only those who actually consume the specific video materials at issue—not just general subscribers or users—can bring a claim. For more on these pivotal rulings and what they mean for publishers and platforms, read on.
Bandai: Familiar VPPA Video Game Allegations
The general allegations are familiar: the plaintiff alleges that they purchased video games on the defendant's website, on which the defendant had installed the Meta Pixel to create targeted advertising. Id. at *1–2. Without consent, the defendant shared the plaintiff's identity along with the titles of video games he viewed and purchased. Id.
- The Court's Analysis
The court found that "Plaintiff fails to allege that the video games Defendant specifically sells, let alone the video game that Plaintiff pre-ordered, contain cut scenes or other prerecorded content." Id. at *9. In other words, the plaintiff's complaint—asserting that selling games makes the defendant a video tape service provider because games are "video materials"—was not enough.
Given the lack of Ninth Circuit precedent, the court relied on guidance from other jurisdictions, specifically Aldana v. GameStop, Inc.1 (U.S. Court of Appeals for the Second Circuit) and Mendoza v. Caesars Ent., Inc. (U.S. District Court for the District of New Jersey).2]Those cases suggest plaintiffs must allege the presence of "cut scenes"—defined in Aldana as "video clips within a video game that move the narrative of the game forward"3—or comparable prerecorded video content to potentially bring video games within the VPPA's scope. The logic goes that because these cut scenes are buried within an interactive game, the game might not make a provider a video tape service provider, but the cut scene within the game just might. The law remains unsettled in the Ninth Circuit as to whether such an allegation would, by itself, be sufficient for a claim. Id. at *7.
The plaintiff here did not allege that the games included cut scenes, nor did they supply functional evidence to support such a claim (a broken link to a YouTube video was cited in their opposition, which was too late and ineffective). On this basis, the court dismissed the VPPA claim, signaling that mere game purchase allegations do not satisfy the VPPA's requirements.
Separately, the court held that the plaintiff had sufficiently alleged two other VPPA elements: that the defendant (1) disclosed the plaintiff's personally identifiable information and (2) did so without consent. Id. at 9–13. The issue of what constitutes personally identifiable information—particularly in cases involving Meta Pixel—remains subject to a broader circuit split, discussed further in our Law360 midyear recap here.
2. Takeaway
This decision provides important clarity on VPPA liability for video game publishers. Plaintiffs cannot merely allege they procured video games but must instead assert that the specific video games on which they base their claims "contain cut scenes or other prerecorded content." Id. at *9.
The plaintiff has already sought to remedy these deficiencies by filing an amended complaint that delves much more deeply into "cut scenes" allegedly present within the defendant's games. Time will tell whether their fixes will be enough.
Footnotes
1. No. 22-cv-7063-LTS, 2024 WL 708589 (S.D.N.Y. Feb. 21, 2024).
2. No. 23-cv-03591, 2024 WL 2316544 (D.N.J. May 22, 2024).
3. Aldana, 2024 WL 708589, at n. 1 (internal quotations omitted).
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