Michael Salazar, individually and on behalf of all others similarly situated v. Paramount Global, dba 247Sports

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0081p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL SALAZAR, individually and on behalf of all
others similarly situated,
Plaintiff-Appellant,
v.
PARAMOUNT GLOBAL, dba 247Sports,
Defendant-Appellee.
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No. 23-5748
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:22-cv-00756—Eli J. Richardson, District Judge.
Argued: June 18, 2024
Decided and Filed: April 3, 2025
Before: BATCHELDER, NALBANDIAN, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Joshua I. Hammack, BAILEY & GLASSER, LLP, Washington, D.C., for
Appellant. David L. Yohai, WEIL, GOTSHAL & MANGES LLP, New York, New York, for
Appellee. ON BRIEF: Joshua I. Hammack, BAILEY & GLASSER, LLP, Washington, D.C.,
Brandon M. Wise, PEIFFER, WOLF, CARR, KANE, CONWAY & WISE, St. Louis, Missouri,
for Appellant. David L. Yohai, WEIL, GOTSHAL & MANGES LLP, New York, New York,
Robb S. Harvey, HOLLAND & KNIGHT LLP, Nashville, Tennessee, for Appellee. Adam G.
Unikowsky, JENNER & BLOCK LLP, Washington, D.C., for Amicus Curiae.
NALBANDIAN, J., delivered the opinion of the court in which BATCHELDER, J.,
concurred. BLOOMEKATZ, J. (pp. 14–24), delivered a separate opinion dissenting from all but
Part II of the opinion and dissenting from the judgment.
>

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_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. The Video Privacy Protection Act—as the name
suggests—arose out of a desire to protect personal privacy in the records of the rental, purchase,
or delivery of “audio visual materials.” Spurred by the publication of Judge Robert Bork’s video
rental history on the eve of his confirmation hearings, Congress imposed stiff penalties on any
“video tape service provider” who discloses personal information that identifies one of their
“consumers” as having requested specific “audio visual materials.”
This case is about what “goods or services” a person must rent, purchase, or subscribe to
in order to qualify as a “consumer” under the Act. Is “goods or services” limited to audio-visual
content—or does it extend to any and all products or services that a store could provide?
Michael Salazar claims that his subscription to a 247Sports e-newsletter qualifies him as a
“consumer.” But since he did not subscribe to “audio visual materials,” the district court held
that he was not a “consumer” and dismissed the complaint. We agree and so AFFIRM.
I.
In September 2022, Michael Salazar brought this class action against Paramount Global,
claiming a violation of the Video Privacy Protection Act (VPPA). Salazar claims he used
247Sports.com, a website owned by Paramount that covers college sports recruiting. Salazar
alleged that he “began a digital subscription to 247Sports.com in 2022” and that he watched
videos on 247Sports.com “while logged into his Facebook account.” R.1, Compl. p.4, PageID 4.
Salazar claims that, by then, Paramount had installed Facebook’s tracking Pixel on
247Sports.com.1 The Pixel enabled Paramount to track and disclose to Facebook Salazar’s
247Sports.com video viewing history, linked to his Facebook ID, without Salazar’s consent.
1The Pixel “is a code that allows Facebook to collect the data” of website users “who also have a Facebook
account.” Salazar v. Paramount Glob., 683 F. Supp. 3d 727, 733 (M.D. Tenn. 2023). If a user watches videos on a
website with the Pixel while logged into his Facebook account, the Pixel sends Facebook “the video content name,
its URL, and, most notably, the [user]’s Facebook ID.” Id.

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Based on these allegations, Salazar asserted a single claim for relief under the VPPA, seeking
actual or statutory liquidated damages. Paramount moved to dismiss the complaint for lack of
subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state
a claim upon which relief may be granted under Rule 12(b)(6).
In July 2023, the district court issued an order denying Paramount’s request to dismiss the
complaint under Rule 12(b)(1) and granting Paramount’s request to dismiss the complaint under
Rule 12(b)(6). The district court first rejected Paramount’s claim that Salazar lacked standing.
The court concluded that Salazar’s alleged injury—the disclosure of his 247Sports.com video
viewing history to Facebook—was an injury in fact because disclosure of personally identifying
information to a third party is a concrete harm. And this injury was fairly traceable to Paramount
because Salazar alleged that Paramount had installed the Facebook tracking Pixel on
247Sports.com, allowing it to transmit Salazar’s video viewing history to Facebook.
Yet the district court dismissed Salazar’s complaint for failing to state a claim under the
VPPA, concluding he was not a “consumer” under the Act. Salazar claimed that he was a
“consumer” under the VPPA because he became a 247Sports.com subscriber (and thus a VPPA
“subscriber”)2 when he signed up for an online newsletter.3 But the court rejected this approach
as reading the term “subscriber” “in the abstract.” Salazar v. Paramount Glob., 683 F. Supp. 3d
727, 742 n.22 (M.D. Tenn. 2023). Looking to the statutory context, the court noted that the
proper question was to ask “whether someone falls within the term ‘subscriber of goods or
service[s] of a video tape service provide[r]’ as properly defined for purposes of the VPPA.” Id.
(quoting 18 U.S.C. § 2710(a)(1)). Reading this provision “as a whole” revealed that the
definition of “subscriber” was “cabined by the definition of ‘video tape service provider.’” Id. at
743–44 (quoting Carter v. Scripps Networks, LLC, 670 F. Supp. 3d 90, 98-99 (S.D.N.Y. 2023)).
2The court properly noted that it did not need to address whether Salazar was a “renter” or “purchaser”
under the VPPA because Salazar claimed only that he was a “subscriber” under the Act.
3The court treated Salazar’s allegation that he was a “digital subscriber” as a claim that he subscribed to
247Sports.com’s newsletter, rather than registering for a 247Sports.com account or otherwise securing exclusive
access to 247Sports.com content. Salazar’s briefing concedes as much. See Appellant Br. at 18 (“The only
remaining question, then, is whether Paramount’s online newsletter counts as a ‘good or service.’”); id. (“Salazar
subscribes to an online newsletter.”); id. at 38 (“Salazar qualifies as a ‘consumer’ because the newsletters are ‘audio
visual materials.’”).

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No. 23-5748 Salazar v. Paramount Global Page 4
So incorporating the VPPA’s definition of “video tape service provider,” 18 U.S.C. § 2710(a)(4),
the court concluded that, to qualify as a “consumer,” a “plaintiff must be a subscriber of goods
and services in the nature of audio-video content.” Id. at 743 n.23.
Turning to the particulars of Salazar’s complaint, the court noted that he failed to “allege
that an individual can only access the video content from 247Sports.com through signing up for
the newsletter.” Id. at 744. Or even that he “accessed audio visual content through the
newsletter.” Id. Since there was no sign that the newsletter was “audio visual content,” the court
found that Salazar “necessarily” was not a “subscriber” under the VPPA. Id. So the court
dismissed Salazar’s complaint for failing to state a claim. Salazar appealed.
II.
On appeal, Paramount abandons its challenge to Salazar’s standing. But inherent to our
jurisdiction is the limitation that “any person invoking the power of a federal court must
demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). And
standing remains a constitutional minimum that “cannot be waived or forfeited.” Va. House of
Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019). So we have an independent obligation
to confirm the plaintiff’s standing before exercising our jurisdiction. See Kanuszewski v. Mich.
Dep’t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019).
We review standing de novo. Sullivan v. Benningfield, 920 F.3d 401, 407 (6th Cir. 2019).
A plaintiff must demonstrate that they have standing “with the manner and degree of evidence
required at the successive stages of the litigation.” Murthy v. Missouri, 144 S. Ct. 1972, 1986
(2024) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). So what the plaintiff must
show is calibrated to the stage of the case—and here we review the grant of a motion to dismiss.
To establish Article III standing at this initial stage, “a plaintiff must plead an injury in fact
attributable to the defendant’s conduct and redressable by the court.” Tyler v. Hennepin County,
143 S. Ct. 1369, 1374 (2023).
General allegations of harm will not do since injury in fact must be both “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560
(internal quotation marks omitted). Physical injury and monetary loss easily satisfy the injury-

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in-fact requirement. TransUnion, LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021). Some
intangible harms also constitute concrete injuries—“[c]hief among them are injuries with a close
relationship to harms traditionally recognized as providing a basis for lawsuits in American
courts.” Id. But this “close relationship” to a traditional harm does not require “an exact
duplicate in American history or tradition.” Id. We are analyzing whether the asserted harm is
sufficiently analogous to a traditional harm recognized by law—not whether the plaintiff has
pleaded an element-by-element match to a historical tort. See Spokeo, Inc. v. Robins, 578 U.S.
330, 341–42 (2016); Ward v. NPAS, Inc., 63 F.4th 576, 581 (6th Cir. 2023) (noting that the
inquiry focuses on whether the harm alleged is closely related “to the kind of harm that the
common law sought to protect”).
So we address whether Salazar’s alleged injury—the disclosure of his 247Sports.com
private video-viewing history to Facebook—bears a “close relationship” to intangible harms
“traditionally recognized as providing a basis for lawsuits in American courts.” TransUnion, 141
S. Ct. at 2204. To be sure, no common-law tort specifically protects against the disclosure of a
person’s video-viewing history. But the Supreme Court has recognized that “both the common
law and the literal understandings of privacy encompass the individual’s control of information
concerning his or her person.” U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press,
489 U.S. 749, 763 (1989). Indeed, TransUnion expressly states that at least a couple of invasions
of privacy cause sufficiently concrete injuries—such as “disclosure of private information” and
“intrusion upon seclusion.”4 141 S. Ct. at 2204. Salazar’s asserted injury resembles the harms
addressed by these torts because he alleges that Paramount disclosed his private information to
Facebook without his knowledge or consent. So Salazar can show that he suffered a concrete
injury by reference to well-established privacy harms.5 See Ward, 63 F.4th at 579–81.
4The common-law tort of public disclosure of private facts prohibited anyone from “giv[ing] publicity to a
matter concerning the private life of another.” Restatement (Second) of Torts § 652D (Am. L. Inst. 1977).
Similarly, the tort of intrusion upon seclusion protects against “intentional intru[sion], physically or otherwise, upon
the solitude or seclusion of another or his private affairs of concerns.” Id. § 652B. Under this tort, the victim was
harmed even if “there is no publication or other use of any kind of the” information obtained. Id. § 652B cmt. b.
5Indeed, every other circuit to consider the issue agrees that a similar alleged violation of the VPPA confers
standing. See In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 274 (3d Cir. 2016); Sterk v. Redbox
Automated Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014); Eichenberger v. ESPN, Inc., 876 F.3d 979, 982–84 (9th
Cir. 2017); Perry v. Cable News Network, Inc., 854 F.3d 1336, 1339–41 (11th Cir. 2017). Although these circuit
opinions predate TransUnion, several analogized the injury redressed by the VPPA to the same traditional harms

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And because Salazar’s complaint alleges that Paramount installed the tracking Pixel on
247Sports.com, the claimed harm is also traceable to Paramount’s conduct. Finally, an award of
damages against Paramount would redress Salazar’s injury.
So the district court correctly found that Salazar has standing.6 Next, we turn to whether
it correctly dismissed Salazar’s suit for failure to state a claim.
III.
On appeal, Salazar claims that the district court erred in granting Paramount’s motion to
dismiss under Rule 12(b)(6).
When a district court grants a motion to dismiss under Rule 12(b)(6), we review de novo.
Luis v. Zang, 833 F.3d 619, 625 (6th Cir. 2016). We “accept the complaint’s well-pleaded factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and draw
all reasonable inferences in the plaintiff’s favor.” Id. at 626. The complaint’s allegations can
discussed by TransUnion: invasion of privacy or intrusion upon seclusion. See, e.g., Eichenberger, 876 F.3d at 983
(comparing the VPPA to common-law privacy torts); Perry, 854 F.3d at 1340–41 (same).
6In a case closely related to this one, Salazar v. NBA, the Second Circuit recently concluded that Salazar
had alleged a concrete injury, analogizing his alleged harm to the common law tort of unauthorized public disclosure
of private facts. 118 F.4th 533, 541–44 (2d Cir. 2024). Although the panel majority disagrees with the ultimate
outcome in that case, we all agree with its decision to reach the merits. We acknowledge that another circuit has
distinguished information disclosure to a single company from disclosure to the “public.” See Hunstein v. Preferred
Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1249 (11th Cir. 2022) (en banc) (holding that a plaintiff lacked
Article III standing for their Fair Debt Collection Practices Act claim because disclosure to a mail vendor was not
sufficiently public to be analogous to the tort of public disclosure of private facts.) Still, Hunstein dealt with
disclosures to mail processors, rather than the world’s largest social media conglomerate—a company that
aggregates, uses, and monetizes personal data. See R.1, Compl. p.11, PageID 11.
More importantly, finding “a close historical or common-law analogue” for the modern injury or harm does
not require an exact match for each element of the common-law tort. See TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2204 (2021); Ward v. NPAS, Inc., 63 F.4th 576, 580–81 (6th Cir. 2023); see also Gadelhak v. AT&T Servs.,
Inc., 950 F.3d 458, 462–63 (7th Cir. 2020) (Barrett, J.) (“[W]hile the common law offers guidance, it does not stake
out the limits of Congress’s power to identify harms deserving a remedy.”); Cranor v. 5 Star Nutrition, L.L.C., 998
F.3d 686, 693 (5th Cir. 2021) (“[O]ur inquiry is focused on the types of harms protected at common law, not the
precise point at which those harms become actionable.” (quoting Krakauer v. Dish Network, L.L.C., 925 F.3d 643,
654 (4th Cir. 2019)); Lupia v. Medicredit, Inc., 8 F.4th 1184, 1192 (10th Cir. 2021) (“Though a single phone call
may not intrude to the degree required at common law, that phone call poses the same kind of harm recognized at
common law.”) As the Supreme Court pointed out, there is “an important difference” between the elements of the
cause of action and the concrete harm. TransUnion, 141 S. Ct. at 2205. So “disclosure of private information”
remains one of “those traditional harms” that “is sufficiently concrete to qualify as an injury in fact,” even when it
fails to meet all of the elements of the common law tort of public disclosure of private facts. Id. at 2204.

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overcome a Rule 12(b)(6) motion only when they contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A.
To see if Salazar made out a claim under the VPPA, we first consider the Act’s structure.
The VPPA, first enacted in 1988, creates civil liability for any “video tape service provider who
knowingly discloses, to any person, personally identifiable information concerning any consumer
of such provider.” 18 U.S.C. § 2710(b)(1). A “consumer” is “any renter, purchaser, or subscriber
of goods or services from a video tape service provider.” Id. § 2710(a)(1). And a “video tape
service provider” is “any person, engaged in the business, in or affecting interstate or foreign
commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual
materials.” Id. § 2710(a)(4).
So to state a claim under the VPPA, Salazar must allege that (1) Paramount is a regulated
entity (a “video tape service provider”), (2) he is a protected party (Paramount’s “consumer”),
and (3) Paramount engaged in prohibited conduct (knowingly disclosing Salazar’s “personally
identifiable information” to a third party). The district court dismissed Salazar’s claim solely
because he failed to plausibly allege the second element: that he is a protected “consumer.” So
we turn to that issue next.
B.
To answer whether Salazar plausibly pleaded that he was a “consumer,” we ask whether
he was a “subscriber of goods or services from a video tape service provider.” Id. § 2710(a)(1).7
In his complaint, Salazar alleged that he was a “consumer” under the VPPA because he
“subscribed to a digital 247Sports.com plan that provides Video Media content to the digital
subscriber’s desktop, tablet, and mobile device.” R.1, Compl., p.17, PageID 17. The complaint
7Of course, Salazar cannot claim that he is a “consumer” unless Paramount is a “video tape service
provider” in the first place. But we assume without deciding that Paramount is one. After all, the district court did
the same—an assumption that Paramount does not ask us to revisit. Cf. Osheske v. Silver Cinemas Acquisition Co.,
No. 23-3882, 2024 WL 5487091, at *2 (9th Cir. Mar. 27, 2025) (holding that traditional movie theaters are not
“video tape service providers”).

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elsewhere makes clear that this was a newsletter subscription: “To register for 247Sports.com,
users sign up for an online newsletter.” Id. at p.6, PageID 6.
Salazar claims that the “broad statutory phrase ‘goods or services’ plainly includes
Paramount’s online newsletter.” Appellant Br. at 24 (quoting 18 U.S.C. § 2710(a)(1)). To reach
that conclusion, Salazar breaks down the VPPA’s definition of “consumer” into two separate
parts, claiming that it covers anyone who (1) subscribes to “goods or services” from (2) a “video
tape service provider.” Assuming Paramount is a “video tape service provider,” Salazar isolates
the meaning of “goods or services.” Pointing to dictionary definitions of “goods” and “services,”
Salazar argues that the “combination of the two terms . . . necessarily refers to society’s entire
economic output.” Id. at 26. So he concludes that this “all-inclusive” phrase means that the
247Sports.com newsletter is “unquestionably a ‘good or service’” from Paramount—a “video
tape service provider.” Id. at 26, 24.
But Salazar errs by reading the terms “goods or services” “in isolation,” yielding a
definition of “consumer” based “solely on the broadest imaginable definitions of its component
words.” Dubin v. United States, 143 S. Ct. 1557, 1566 (2023) (quoting Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1631 (2018)). Learned jurists have long cautioned against making this very
mistake. See Helvering v. Gregory, 69 F.2d 809, 810–11 (2d Cir. 1934) (L. Hand, J.) (“[T]he
meaning of a sentence may be more than that of the separate words, as a melody is more than the
notes, and no degree of particularity can ever obviate recourse to the setting in which all appear,
and which all collectively create.”); FCC v. AT&T, Inc., 562 U.S. 397, 406 (2011) (“[T]wo words
together may assume a more particular meaning than those words in isolation.”).
We don’t scrutinize a statute atomistically—chopping it up and giving each word the
broadest possible meaning. “Our duty, after all, is to construe statutes, not isolated provisions.”
King v. Burwell, 576 U.S. 473, 486 (2015) (internal quotation marks omitted). And often the
meaning of a word or phrase “may only become evident when placed in context.” Sackett v.
EPA, 143 S. Ct. 1322, 1338 (2023) (quoting FDA v. Brown & Williamson Tabacco Corp.,
529 U.S. 120, 132 (2000)).

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So it remains “a fundamental canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in the overall statutory scheme.”
West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (quoting Davis v. Mich. Dep’t of Treasury,
489 U.S. 803, 809 (1989)). And “[t]his bedrock principle has especial force for ‘common words’
like [goods or services] because they are ‘inordinately sensitive to context.’” See United States v.
Hill, 963 F.3d 528, 533 (6th Cir. 2020) (quoting Smith v. United States, 508 U.S. 223, 245 (1993)
(Scalia, J., dissenting)). The statutory phrase “goods or services” “cannot be construed in a
vacuum” to wall it off from the meaning imputed by the rest of the statute’s text. Home Depot
U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019) (quoting Davis, 489 U.S. at 809).
Indeed, other interpretive canons—such as noscitur a sociis or the associated-words
canon—reflect the “common sense intuition that Congress would not ordinarily introduce a
general term that renders meaningless the specific text that accompanies it.” Fischer v. United
States, 144 S. Ct. 2176, 2184 (2024). The associated-words canon instructs interpreters to
“avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying
words.” United States v. Yates, 574 U.S. 528, 543–44 (2015) (internal quotation marks omitted);
see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 197
(2012) (“Although most associated-words cases involve listings—usually a parallel series of
nouns and noun phrases, or verbs and verb phrases—a listing is not prerequisite. An
‘association’ is all that is required.”) So despite its overly technical name, the word-association
canon embodies a simple fact of everyday communication: a general word can be limited by its
connection to other words in the same text.
Here, there is an association between the terms “goods or services” and “audio visual
materials.” So viewing the provision as a whole reveals “a more targeted reading” than the one
Salazar proposes. See Dubin, 143 S. Ct. at 1156. Even though—standing alone—the expression
“goods or services” is not limited, its association with surrounding words cabins its meaning.
The full definition of “consumer” in the statute does not encompass consumers of all “goods or
services” imaginable, but only those “from a video tape service provider.” 18 U.S.C. §
2710(a)(1). This proviso tethers the definition of “consumer” to that of “video tape service
provider.” And that definition pinpoints the relevant “goods or services”: those involved in the

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“rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”
Id. § 2710(a)(4). So the most natural reading, which accounts for the context of both definitions,
shows that a person is a “consumer” only when he subscribes to “goods or services” in the nature
of “video cassette tapes or similar audio visual materials.”8 Id. § 2710(a)(1), (a)(4) Together,
“text and context point to the same place:” the expression “goods or services” is limited to audio-
visual ones. Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1790 (2022).
Some might resist this conclusion, arguing that it adds an unexpressed limitation to the
text. Not so. Our approach is not just consonant with textualist interpretation, it is required by it.
The pure definitional meaning of words in isolation shouldn’t be confused with the plain
meaning of the text. See Hill, 963 F.3d at 536–37. Instead, the plain meaning of any word “is
informed by its surrounding context” and the other words in the statute. Diaz v. United States,
144 S. Ct. 1727, 1735 (2024). This “[c]ontext also includes common sense” such that “[c]ase
reporters and casebooks brim with illustrations of why literalism—the antithesis of context-
driven interpretation—falls short.” Biden v. Nebraska, 143 S. Ct. 2355, 2379 (2023) (Barrett, J.,
concurring). And “[c]ontext from the time of [the VPPA’s] enactment . . . confirms that the
statute does not reach” all possible goods and services. See Thompson v. United States, No. 23-
1095, 2025 WL 876266, at *5 (U.S. Mar. 21, 2025).
As discussed, the terms “goods or services” are linked to those goods and services
provided by a company when it is acting as a “video tape service provider”—namely “audio
visual materials.” So “in construing [the VPPA], we must also take into account the broader
statutory scheme,” which focuses on privacy protections for records of transactions related to
audio-visual goods and services. See City & County of San Francisco v. EPA, 145 S. Ct. 704,
717 (2025). Adopting this best reading of the statute is not adding a new limitation where one
8Salazar contends that Congress “thrice used different language to focus narrowly on audio-visual content”
elsewhere in the VPPA, suggesting it “intended ‘goods or services’ to cover more than just audio-visual content.”
Appellant Br. at 28. At first glance, Salazar appears to have a point, since “[d]ifferences in language usually lead to
differences in meaning.” United States v. Dowl, 956 F.3d 904, 907 (6th Cir. 2020). But it turns out that one of the
three uses of “different language to focus narrowly on audio-visual content” that Salazar references comes in the
definition of “video tape service provider.” Appellant Br. at 28 (“[I]n the definition of ‘video tape service provider,’
Congress deployed the term ‘prerecorded video cassette tapes or similar audio visual materials.’”) (quoting
18 U.S.C. § 2710(a)(4)). And since the VPPA’s definition of “consumer” covers only “goods or services from a
video tape service provider,” Congress incorporated the latter provision’s express narrowing reference to “audio
visual materials.” 18 U.S.C. § 2710(a)(1), (4).

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did not exist. Instead, we merely recognize a limitation that was included in the statute’s plain
meaning at the time it was signed into law.9
In doing so, we break with the Second and Seventh Circuits’ approach to this issue.
Considering a virtually indistinguishable complaint filed by the same plaintiff, the Second
Circuit held that the statutory term “‘consumer’ should be understood to encompass a renter,
purchaser, or subscriber of any of the provider’s ‘goods or services’—audiovisual or not.”
Salazar v. NBA, 118 F.4th 533, 549 (2d Cir. 2024). So the court concluded that “it’s the
definition of ‘personally identifiable information’ that limits what can be shared, not the
definition of ‘consumer.’” Id. at 548. And the Seventh Circuit echoed this conclusion in an
“almost identical” case. Gardner v. Me-TV Nat. Ltd. P’ship, 24-1290, 2025 WL 942835, at *3
(7th Cir. Mar. 28, 2025).
Respectfully, we disagree. It’s far from the most natural reading to see the term
“personally identifiable information” as limiting because the statute defines it with the term
“includes”—unlike the other definitions which use the word “means.” 18 U.S.C § 2710(a)(3).
And when a “definition is introduced with the verb ‘includes’ instead of ‘means’ . . . it makes
clear that the examples enumerated in the text are intended to be illustrative, not exhaustive.”
Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162 (2012); see also Scalia & Garner,
supra, at 132–33 (describing this as “the rule both in good English usage and in textualist
decision-making”). So it’s not clear that “personally identifiable information” always has to
“identif[y] a person as having requested or obtained specific video materials or services.”
18 U.S.C § 2710(a)(3).
Yet the Second Circuit sees this definition of “personally identifiable information” as the
floodgate preventing VPPA liability for “the general store owner who . . . disclos[es] particular
customers’ bread-buying habits.” Salazar v. NBA, 118 F.4th at 549. Indeed, that court viewed
9For those persuaded by such evidence, the VPPA’s legislative history bolsters this reading:
[S]imply because a business is engaged in the sale or rental of video materials or services
does not mean that all of its products or services are within the scope of the bill. For example, a
department store that sells video tapes would be required to extend privacy protection to only
those transactions involving the purchase of video tapes and not other products.
S. Rep. No. 100-599, at 12.

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this definition as making clear that the terms “goods or services” should be construed broadly to
prevent redundancy in the statute. Id. But if that is true, it seems odd that Congress would put
such a pivotal limitation in a nonexclusive definition. The Second Circuit acknowledges that
fact—though only in a footnote. Id. at 549 n.10. And since the definition is illustrative rather
than exhaustive, it’s not clear how interpreting “goods or services” to be audio-visual materials
would render that definition’s reference to videos “superfluous.” Id. at 548. The better reading
remains that “goods or services” relates to audio-visual materials and the definition of
“personally identifiable information” merely provides an example of what information a “video
tape service provider” can’t disclose to others.10
Turning to how this applies to Salazar’s case, we ask whether the 247Sports.com
newsletter is a “video cassette tape or similar audio visual material.” Salazar claims it is because
it “contained links to videos, directed subscribers to video content, and otherwise enticed or
encouraged them to watch Paramount’s videos.” Appellant Br. at 36. But Salazar’s complaint
failed to allege that the newsletter did any of these or that he had accessed videos through the
newsletter. If anything, the complaint suggested that the relevant videos were accessible to
anyone, even those without a newsletter subscription, by going directly on 247Sports.com. See
R.1, Compl., p.11, PageID 11 (“[A] user visits 247Sports.com and clicks on an article . . . and
watches the video in the article.”). So Salazar did not plausibly allege that the newsletter itself
was an “audio visual material.”
Standing alone, Salazar’s allegation that he subscribed to 247Sports.com’s newsletter was
not enough to render him a “consumer” under the VPPA—making the district court’s dismissal
of his suit proper.
10The First Circuit has also suggested that subscribers to non-video materials (specifically, apps) can be
“consumers” under the VPPA. See Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 487–90 (1st Cir.
2016) (finding that plaintiff plausibly pleaded he was a “consumer” by alleging that he downloaded and watched
videos on the USA Today App). But the case is readily distinguishable on the facts because the Yershov plaintiff at
least pleaded that he used his subscription to access audio-visual materials. Id. at 485. (noting that the plaintiff
“used the App to read news articles and watch numerous video clips”). And the application disclosed the plaintiff’s
personal information and viewing history “at the time he viewed a video” through the application. Id. at 489. By
contrast, Salazar’s complaint failed to allege that he watched videos on the newsletter’s emails or through hyperlinks
included in them.

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IV.
But that is not the end of the case. Salazar claims that, even if dismissal were proper, the
district court erred “as a matter of law” by refusing to grant him “leave to amend his complaint to
add allegations to establish that the online newsletters were ‘audio-visual materials.’” Appellant
Br. at 40.
When a district court dismisses a complaint with prejudice, we review for abuse of
discretion. United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 644 (6th Cir.
2003). Generally, district courts “should freely give leave” to amend a complaint “when justice
so requires.” Fed. R. Civ. P. 15(a)(2). But when “a party does not file a motion to amend or a
proposed amended complaint in the district court, it is not an abuse of discretion for the district
court to dismiss the claims with prejudice.” Ohio Police & Fire Pension Fund v. Standard &
Poor’s Fin. Servs., LLC, 700 F.3d 829, 844 (6th Cir. 2012) (internal quotation marks omitted);
see also Crosby v. Twitter, Inc., 921 F.3d 617, 627–28 (6th Cir. 2019) (affirming dismissal with
prejudice because plaintiff failed to file a formal motion to amend).
Salazar filed neither a motion to amend nor a proposed amended complaint. Instead, he
requested leave to amend his complaint only in a single cursory footnote at the end of his
response to Paramount’s motion to dismiss: “To the extent the Court grants Defendant’s motion,
Plaintiff respectfully requests that he be permitted to amend his complaint to address any issues
the Court raises in its Order.” R.24, Opp’n to Mot. to Dismiss, p.21 n.17, PageID 146. This
“cursory request” did not “explain how a second amended complaint would resolve the problems
in the first.” Crosby, 921 F.3d at 628. So the district court did not abuse its discretion in
dismissing Salazar’s complaint with prejudice.
V.
For these reasons, we AFFIRM.

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________________________________________________________
CONCURRENCE / DISSENT / DISSENT FROM JUDGMENT
________________________________________________________
BLOOMEKATZ, Circuit Judge, concurring in part, dissenting in part, and dissenting
from the judgment. The majority opinion holds that Michael Salazar is not a “consumer” under
the Video Privacy Protection Act (VPPA) because he did not subscribe to “‘goods or services’ in
the nature of ‘video cassette tapes or similar audio visual materials’” from 247Sports.com. Maj.
Op. at 10 (emphasis added) (quoting 18 U.S.C. § 2710(a)(1), (a)(4)). But the statute doesn’t say
that. And where, as here, a straightforward reading of the statute’s plain language does not lead
to absurd or anomalous results, we’re not allowed to read in extratextual limitations. I agree that
we have jurisdiction to resolve Salazar’s claim, so I concur in Part II of the majority opinion. On
the merits, however, the majority’s reading of the VPPA contravenes the plain language of the
statute and, thus—perhaps unsurprisingly—conflicts with the reasoning of our sister circuits.
I respectfully dissent.
ANALYSIS
Michael Salazar signed up for a newsletter from Paramount Global, doing business as
247Sports.com, a website that provides news coverage of college sports. To sign up, Salazar
provided his email address and his IP address, the latter of which reveals information about his
physical location. After he signed up, Paramount sent him a daily newsletter with links to
articles (many of which contained videos), photographs, and other content. Salazar alleges that,
through the Facebook Pixel that Paramount installed on the 247Sports.com website, Paramount
collected data about his identity and the videos he watched and then disclosed that information to
Facebook without his consent.
Salazar sued Paramount under the VPPA. Congress passed the VPPA, also known as the
“Bork bill,” to increase video privacy after a newspaper published a profile about then-Supreme
Court nominee Judge Robert Bork based on almost 150 movies he and his family had rented
from a video store. S. Rep. No. 100-599, at 5 (1988). The VPPA provides a cause of action
against a “video tape service provider” that “knowingly discloses” a “consumer[’s]” “personally

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identifiable information,” which includes information about the “specific video materials or
services” the consumer has “requested or obtained.” 18 U.S.C. § 2710(a)(3), (b)(1). That’s a lot
of defined terms to apply. Luckily, they’re not all in dispute. As the majority explains, this case
turns on whether Salazar is a “consumer” within the VPPA’s definition. See Maj. Op. at 7.
In my view, he is.
I. Plain Text Reading of “Consumer”
The plain text is all that is necessary to resolve this case.
To determine whether Salazar is a “consumer” within the meaning of the VPPA, we start
with the plain text of the statute. Twitter, Inc. v. Taamneh, 598 U.S. 471, 484 (2023). Unless
terms are specifically defined, we look to their ordinary meaning. Keen v. Helson, 930 F.3d 799,
802 (6th Cir. 2019). This includes how the terms are used in their surrounding context. See
United States v. Hill, 963 F.3d 528, 533–34 (6th Cir. 2020). When the “text is clear, ‘this first
step of the interpretive inquiry is our last.’” United States v. Stewart, 73 F.4th 423, 425 (6th Cir.
2023) (quoting Rotkiske v. Klemm, 589 U.S. 8, 13 (2019)).
The VPPA defines “consumer” as “any renter, purchaser, or subscriber of goods or
services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). By this provision’s plain
text, Salazar is a “consumer” under the VPPA.
Some of the words in the definition of “consumer” are undefined, so I afford them their
plain meaning. See Keen, 930 F.3d at 802. Relevant here, Salazar contends that he is a
consumer because he is a “subscriber” of “goods or services” from Paramount. Congress did not
define either of those statutory terms. In determining the meaning of those terms,
“contemporaneous dictionaries are the best place to start.” Id. To “subscribe” is “to put one’s
name down as a purchaser of shares, a periodical, newspaper, or book, etc.” Subscribe, 17
Oxford English Dictionary 54 (2d ed. 1989). As several of our sister circuits have held, the
“purchase[]” need not be monetary—providing personal information suffices. Salazar v. Nat’l
Basketball Ass’n, 118 F.4th 533, 552 (2d Cir. 2024); Ellis v. Cartoon Network, Inc., 803 F.3d
1251, 1256–57 (11th Cir. 2015); Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482,

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487–89 (1st Cir. 2016); Gardner v. Me-TV Nat’l Ltd. P’Ship, -- F.4th --, 2025 WL 942835, at
*2–*3 (7th Cir. 2025). So, a “subscriber” generally refers to a person who, by providing some
sort of consideration, opts in advance to receive “goods or services” of a continuing or periodic
nature from the provider. See Ellis, 803 F.3d at 1255–56; Yershov, 820 F.3d at 487 (collecting
dictionary definitions). In turn, “goods” ordinarily refers to “movable property,” and “services”
refers to “[t]he section of the economy that supplies needs of the consumer but produces no
tangible goods.” Good, 6 Oxford English Dictionary 673 (2d ed. 1989); Service, 15 Oxford
English Dictionary 37 (2d ed. 1989).
Under the statute, those “goods or services” must be “from a video tape service
provider.” 18 U.S.C. § 2710(a)(1). The VPPA defines that phrase in relevant part as
“any person, engaged in the business, in or affecting interstate or foreign commerce, of rental,
sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” Id.
§ 2710(a)(4).1 Based on this language, a “video tape service provider” need not be exclusively,
or even primarily, engaged in the “rental, sale, or delivery of prerecorded cassette tapes or
similar audio visual materials.” See id.; NBA, 118 F.4th at 548. Congress included “any person
engaged in” the business of renting, selling, or delivering audio visual materials akin to video
cassette tapes, capturing department stores, supermarkets, or other companies that are “engaged”
in many commercial pursuits, including the “rental, sale, or delivery” of video tapes and the like.
See S. Rep. No. 100-599, at 12 (explaining how the VPPA would apply to a department store);
NBA, 118 F.4th at 548. Indeed, while Judge Bork rented videos from a local video store, the
disclosure of his viewing history would not have been any less invasive had he rented from a
supermarket that had a video rental department. (I remember when some did.) The VPPA, by its
plain text, counts both stores as “video tape service providers” and would have prohibited either
from disclosing his rental history.
So how does this definition of “consumer” match up to Salazar’s allegations? Salazar is
a “subscriber” under the VPPA. He gave his personal information—his email address and IP
1The full definition is, “any person, engaged in the business, in or affecting interstate or foreign commerce,
of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials, or any person or
other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect
to the information contained in the disclosure.” 18 U.S.C. § 2710(a)(4).

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address—in exchange for receiving a periodic (daily) newsletter from 247Sports.com via email.2
The newsletter is a “good[] or service[] from [Paramount].” Neither Paramount nor the majority
disputes that the phrase “goods or services,” in common parlance, includes newsletters. See Maj.
Op. at 9–10 (discussing the “relevant ‘goods or services’” covered by the VPPA); Appellee Br.
at 27 (arguing that Congress did not intend for the VPPA “to cover all the goods and services
offered by a video tape service provider”); see also Op. & Order, R. 33, PageID 281 n.19
(declining to address whether the newsletter is a “good[] or service[],” instead holding only that
Salazar is not a “subscriber of goods or services from a video tape service provider”). And
finally, Paramount is a “video tape service provider,” as it “engage[s] in the business” of
delivering video content. 18 U.S.C. § 2710(a)(4).3 Putting these terms together, it’s not hard to
see that Salazar qualifies as a “consumer” under the VPPA: he is a “subscriber” (a registered,
regular recipient) of “goods or services” (the newsletter) from a “video tape service provider”
(Paramount). This straightforward application of the statute’s plain meaning follows the two
other circuits to reach this issue. See NBA, 118 F.4th at 537 (2d. Cir.) (holding that, according to
the provision’s “plain meaning,” a subscriber to the NBA’s online newsletter is a “consumer”
under the VPPA); Gardner, 2025 WL 942835, at *2 (7th Cir.) (holding that “[a]ny purchase or
subscription from a ‘video tape service provider’ satisfies the definition of ‘consumer’, even if
. . . the thing subscribed to is a newsletter.”).
The majority reaches a different conclusion—but only by rewriting the plain language of
the VPPA.
II. The majority’s atextual reading of “goods or services from a video tape
service provider.”
In holding that Salazar is not a “consumer,” the majority focuses on the fact that the
VPPA’s definition requires a plaintiff to be a consumer of not just any “goods or services,” but
“goods or services from a video tape service provider.” Maj. Op at 9–10. It holds that the “most
natural reading” of this full phrase is that “a person is a ‘consumer’ only when he subscribes to
2Tellingly, if Salazar does not want to receive the newsletter anymore, Paramount allows him to
“unsubscribe.” Ex. A, R. 17-1, PageID 100.
3Paramount does not dispute in this appeal that it is a “video tape service provider.” The majority, like the
district court, assumes that it is. Maj. Op. at 7 n.7.

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‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’” Id.
at 10 (emphasis added) (quoting 18 U.S.C. § 2710(a)(1), (a)(4)). But the statute doesn’t have
this limitation. The majority has written it in. As noted, the VPPA states that a consumer is “any
renter, purchaser, or subscriber of goods or services from a video tape service provider.” See
18 U.S.C. § 2710(a)(1). The majority’s reading effectively adds the limiting words “audio
visual” before “goods or services” in the statutory text: now, a consumer is “any renter,
purchaser, or subscriber of [audio visual] goods or services from a video tape service provider.”
I don’t think we can insert those words into the statute. Borden v. United States, 593 U.S. 420,
436 (2021) (plurality opinion).
The majority’s defense of this edit does not persuade me. At the heart of the majority’s
interpretation is the principle that courts must read statutory language in context. The majority
appears to acknowledge that the plain meaning of “goods or services” includes the online
newsletter, but it stresses that we cannot read “goods or services” in isolation. See Maj. Op. at
8–9. I agree, of course. It is a well-established and common-sense rule that courts can’t isolate
words in a statute and give them a meaning that would not make sense in context, as “words
together may assume a more particular meaning than those words in isolation.” Id. at 8 (quoting
FCC v. AT&T, Inc., 562 U.S. 397, 406 (2011)). Take a different example from the same VPPA
provision—the word “subscriber.” In isolation, the word “subscriber” could mean a person who
subscribes to the tenets of a religion or other beliefs, where there is no need for registration, an
exchange, or a relationship between two people or entities. Subscriber, 17 Oxford English
Dictionary 54 (2d ed. 1989). But the statute says “subscriber of goods or services,” so it is most
naturally read as referring to a different definition of subscriber.
Following the basic rule that courts look at words in context, the majority concludes:
“The full definition of ‘consumer’ does not encompass all ‘goods or services’ imaginable, but
only those ‘from a video tape service provider.’” Maj. Op. at 9 (quoting 18 U.S.C. § 2710(a)(1)).
Again, I agree. The “good or service” must be “from a video tape service provider.” But here, it
is. The newsletter is from Paramount, undisputedly a “video tape service provider.” As the
Seventh Circuit aptly asked, “What more is required?” Gardner, 2025 WL 942835, at *2.
Purchasing any good—such as “a Flintstones sweatshirt or a Scooby Doo coffee mug or a

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Superman action figure or a Bugs Bunny puzzle”— from a video tape service provider like
Paramount will do. Id. Thus, Salazar satisfies the definition of “consumer.”
Not so, the majority says, because context limits the statutory language even further. It
holds that the “goods or services” must not only be “from a video tape service provider,” as the
statute dictates—they must be “audio visual” in nature. Maj. Op. at 9–11. That’s because, the
majority reasons, by specifying that the “goods or services” must be “from a video tape service
provider,” the provision “pinpoints the relevant ‘goods or services’” as “video cassette tapes or
similar audio visual materials.” Id. at 9–10 (quoting 18 U.S.C. § 2710(a)(1), (a)(4)). But how?
Sure, to be a “video tape service provider,” a company must engage in the business of “rental,
sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C.
§ 2710(a)(4). But Congress knew that “video tape service providers” could rent, sell, or deliver
other types of “goods or services” too. Remember that the definition was drafted to include
department stores, supermarkets, and other entities that rent, sell, or deliver the requisite
audiovisual materials. See S. Rep. No. 100-599, at 12. The majority acknowledges as much,
albeit in a footnote. See Maj. Op. at 11 n.9. So, when Congress provided that a “consumer”
must get “goods or services from a video tape service provider,” I wouldn’t assume it meant only
a subset of all the “goods or services” Congress knew “video tape service providers” do business
in. And it’s far from the most “natural” reading of the phrase to say that “goods or services from
a video tape service provider” can only be some particular “goods or services” from that entity.
Id. at 10.
If anything, the statutory context statute reinforces Salazar’s plain-language
interpretation. “[V]iewing the provision as a whole,” id. at 9, reveals that Congress knew how to
limit “goods or services” to those of an audiovisual nature when it wanted to, see Sw. Airlines
Co. v. Saxon, 596 U.S. 450, 457–58 (2022) (citing the “meaningful-variation canon”). For
example, the statute defines “personally identifiable information” as information “identif[ying] a
person as having requested or obtained specific video materials or services from a video tape
service provider.” 18 U.S.C. § 2710(a)(3) (emphasis added). That “specific video” modifier is
notably absent from the “goods or services” referenced in the definition of “consumer.” See id.
§ 2710(a)(1). I don’t think we should override Congress’s choice not to similarly modify the

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phrase “goods or services” in that definition. See Saxon, 596 U.S. at 458 (respecting the
distinction Congress made in using “more open-ended formulations” in some places, and a
“narrower” phrase in another (citation omitted)); Jama v. Immigr. & Customs Enf’t, 543 U.S.
335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply, and our reluctance is even greater when
Congress has shown elsewhere in the same statute that it knows how to make such a requirement
manifest.”).
The absence of the “specific video” modifier is particularly telling given the other
similarities between the definitions of “personally identifiable information” and “consumer.”
Recall that the majority focuses on the fact that the definition of “consumer,” 18 U.S.C.
§ 2710(a)(1), says “goods or services from a video tape service provider,” Maj. Op. at 9. And
the majority concludes that, in context, “from a video tape service provider” means the goods or
services must be audiovisual ones. Id. at 9–10 (emphasis added). The statutory definition of
“personally identifiable information,” 18 U.S.C. § 2710(a)(3), has the same limiting context the
majority emphasizes: it says that the “materials or services” must be “from a video tape service
provider,” id. Yet it also says that they must be “specific video materials or services from a
video tape service provider.” Id. (emphasis added). If the majority were correct that “goods or
services,” when followed by the phrase “from a video tape service provider,” covers only
audiovisual materials, Congress would not have needed to limit the scope of “materials or
services from a video tape services provider” in its definition of “personally identifiable
information.” See Crump v. Blue, 121 F.4th 1108, 1111 (6th Cir. 2024) (noting that Congress’s
decision to vary language “is telling”). Its reference to “specific video” materials or services
would be superfluous. Reading the VPPA as the majority does runs counter to the “cardinal
principle” that we should give meaning to every “clause, sentence, or word” in the statute.
United States v. Malone, 889 F.3d 310, 312 (6th Cir. 2018) (quoting TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001)); see also NBA, 118 F.4th at 548.
The majority’s reliance on noscitur a sociis doesn’t help either. Maj. Op. at 9–11. As the
majority explains, noscitur a sociis tells us that a term’s meaning is affected by the words with
which it is “associated.” Id. at 9. The canon “instructs interpreters to ‘avoid ascribing to one

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word a meaning so broad that it is inconsistent with its accompanying words.’” Id. (quoting
Yates v. United States, 574 U.S. 528, 543–44 (2015)). For instance, the Supreme Court recently
applied this canon in Fischer v. United States—a case the majority relies on—to clarify the scope
of 18 U.S.C. § 1512, a criminal obstruction statute. 603 U.S. 480 (2024). The Court held that
§ 1512(c)(2), which extends liability to one who “otherwise obstructs, influences, or impedes any
official proceeding,” is limited by the immediately preceding clause, § 1512(c)(1), which
imposes liability on one who “alters, destroys, mutilates, or conceals a record, document, or
other object” intended for use in an official proceeding. Id. at 497–98. In applying both the
noscitur canon and the canon against superfluity, the Court followed the “common sense
intuition that Congress would not ordinarily introduce a general term that renders meaningless
the specific text that accompanies it.” Id. at 487. So, it held that the “otherwise” clause is
limited to offenses involving the “records, documents, and objects” referenced in § 1512(c)(1).
Id. at 498. And the Court reasoned that the “history of the provision” bolstered its conclusion
because the statute was intended to respond to a “loophole” that made it difficult to prosecute
people for obstructive document destruction during the Enron scandal. Id. at 491–92. The Court
concluded: “It would be peculiar to conclude that in closing the Enron gap, Congress actually
hid away in the second part of the third subsection . . . a catchall provision that reaches far
beyond the document shredding and similar scenarios that prompted the legislation in the first
place.” Id. at 492.
Does reading the definition of “goods or services” according to its plain language make
the provision “inconsistent with its accompanying words,” “render meaningless” other parts of
the statute, or depart from the statute’s purpose, thereby triggering this limiting construction?
I don’t think so. The majority doesn’t even contend that it does or identify any such examples.
That’s telling.
Paramount tries to identify an inconsistency between the plain-text interpretation and the
VPPA’s purpose to justify its limiting construction, but it fails. It argues that the phrase “goods
or services” in the definition of “consumer” cannot extend to “the whole economy writ large”
because the purpose of the statute was narrow—protecting privacy over audiovisual materials
only. Appellee Br. at 22. As the legislative history demonstrates, Congress enacted the VPPA

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“to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or
similar audio visual materials.” Act of Nov. 5, 1988, Pub. L. 100-618, 102 Stat. 3195. But
giving the phrase “goods or services” a broader meaning than “specific video materials or
services” fits comfortably with that purpose. It brings consumers within the statute’s reach if
they have engaged in any transaction regarding “goods or services from a video tape service
provider,” because any transaction could give a provider the data it needs to connect a person
with their video consumption activity. And that information about video consumption is then
protected from disclosure.
True, under this interpretation “a consumer who buys a hammer”—or any other nonvideo
material—“then watches free videos on the vendor’s website” enjoys the privacy protections of
the VPPA. NBA, 118 F.4th at 550 (using the defendant’s proposed hypothetical). But, as the
Second Circuit held, “considering the privacy protective goals of the VPPA with respect to
individuals’ video viewing information,” that’s not “anomalous.” Id. Instead, “allowing
disclosure of the consumer’s video viewing information [in this scenario] would be out of sync
with the statute’s goals.” Id.
Nor is applying the definition of “consumer” to purchasers of nonvideo goods
“nonsensical,” as the district court reasoned. Op. & Order, R. 33, PageID 285. Consider the
same hypothetical. When purchasing a hammer on the “video tape service provider’s” website,
an individual provides personal information. And the video tape service provider can link that
personal information with the free videos the individual later watches on its website. If a video
tape service provider can link a person’s personal information to their video preferences,
Congress would have wanted to prohibit disclosure, regardless of whether the information came
from the precise transaction involving the video material or got “stitched together” with other
non-video transactions. Reply Br. at 17. It makes no difference for achieving the statute’s
privacy goals. Accordingly, the VPPA’s purpose does not compel a narrower interpretation of
“goods or services” in the definition of “consumer”; it confirms the plain-language interpretation
I would adopt. See Fischer, 603 U.S. at 491–92 (considering what “prompted the legislation in
the first place” to confirm its reading of the text).

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Lastly, Paramount’s amicus presents a consequentialist argument against a plain-
language reading of the statute. Amicus cautions us not to “retrofit[]” a statute “designed to
protect people who rented VHS and Betamax videocassettes at brick-and-mortar video rental
stores” to regulate the internet, and it fears that reading the VPPA in accordance with its
terms’ plain language would “fundamentally transform the Internet.” Amicus Br. at 3, 13.
Consequentialist reasoning cannot change the meaning of clear text, see Niz-Chavez v. Garland,
593 U.S. 155, 171 (2021), yet even on its own terms I am unpersuaded by the amicus’s warnings.
The legislative history of the VPPA contravenes amicus’s narrative and quiets the sound of its
alarm. That’s for two reasons.
First, Congress acknowledged the ever-progressing advancement of information
technology when it initially passed the VPPA and intended the VPPA’s protections to continue
with those advances. See S. Rep. No. 100-599, at 6–7. Rather than designing a statute for a
bygone era, Congress recognized that the “computer age” would bring “technological
innovations” with “the ability to be more intrusive than ever before.” See id. at 6. And while it
may not have anticipated all those innovations precisely—like the growth of targeted advertising
on which amicus focuses—the VPPA was meant to protect consumers’ privacy in the face of
those advances, not become obsolete. See id. at 6–8. Based on the legislative history, then, the
amicus is wrong in saying that Congress did not mean for the VPPA to apply in the internet era.
Second, in 2013, Congress specifically amended the VPPA, recognizing that the internet
had “revolutionized” how Americans watch video content and “share information.” S. Rep. No.
112-258, at 2 (2012); Video Privacy Protection Act Amendments Act of 2012, sec. 2,
§ 2710(b)(2), 126 Stat. 2414 (2013). Specifically, Congress wanted to enable “consumers to
share information about their video preferences through social media sites on an ongoing basis,”
but that wasn’t possible because the original VPPA required consent for each disclosure. See
S. Rep. No. 112-258, at 2–3. Congress amended the VPPA so it now provides that a consumer
can give “informed, written consent (including through an electronic means using the Internet)”
for a video tape service provider to share their information on an ongoing basis. 18 U.S.C.
§ 2710(b)(2)(B). Far from the doomsday scenario amicus predicts, video tape service providers
need only receive the consumer’s consent to disclose data, and they can carry on. Many websites

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No. 23-5748 Salazar v. Paramount Global Page 24
already ask for various forms of consent. Hana Habib, et al., “Okay, Whatever”: An Evaluation
of Cookie Consent Interfaces 1, CHI ’22: Conf. on Hum. Factors in Computing Sys. (2022),
https://perma.cc/DNZ9-X67N. Therefore, I can’t say that “the plain language of the statute
would lead to patently absurd consequences that Congress could not possibly have intended.”
Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 470 (1989) (Kennedy, J., concurring) (cleaned
up).
Given the VPPA’s “text, structure, and purpose,” I—like the Second and Seventh
Circuits—do not read the statute’s definition of “consumer” to be limited to subscribers of
“audiovisual ‘goods or services.’” NBA, 118 F.4th at 537; see also Gardner, 2025 WL 942835,
at *2. I therefore respectfully part ways with the majority opinion in interpreting what
constitutes “goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1).4
CONCLUSION
Because Salazar has stated a claim for relief under the plain text of the VPPA,
I respectfully dissent.
4Because I would conclude that Salazar is a consumer based on the plain meaning of “goods or services
from a video tape service provider,” I do not reach the question of whether the newsletter is “audiovisual” in nature.
Both the majority and the district court conclude that Salazar did not sufficiently allege that the newsletter is
audiovisual primarily because he did not allege that he “accessed videos through the newsletter.” Maj. Op. at 12;
see also Op. & Order, R. 33, PageID 286. This is curious reasoning. For example, if a person purchases a video
cassette tape or DVD but does not actually watch the movie, does it cease to be an audiovisual good? I doubt it.
Even so, all that is required to remedy this problem is for Salazar or another plaintiff to allege that he clicked on the
link. I would hesitate to adopt a definition of audiovisual material that turns on a click.
The district court did not address whether Salazar should be granted leave to amend his complaint to further
allege that the newsletter is audiovisual material—perhaps because Salazar only mentioned amending in a footnote.
And the majority concludes that Salazar’s failure to move more substantively for leave to amend precludes his
asking for it now. Fair enough. Doubtless, that will be the next case.

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