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Eichenberger v. ESPN, Inc.

United States Court of Appeals for the Ninth Circuit

October 3, 2017, Argued and Submitted, Pasadena, California; November 29, 2017, Filed

No. 15-35449


 [*981]  GRABER, Circuit Judge:

Plaintiff Chad Eichenberger alleges that Defendant ESPN, Inc. violated the Video Privacy Protection Act of 1988 ("VPPA"), which bars a "video tape service [**3]  provider" from knowingly disclosing "personally identifiable information concerning any consumer of such provider." 18 U.S.C. § 2710(b)(1). The district court dismissed the action under Federal Rule of Civil Procedure 12(b)(6) on the ground that the operative complaint fails to state a claim that the information disclosed was "personally identifiable information" within the meaning of the VPPA. We affirm.


We accept as true all factual allegations in the operative complaint, and we construe them in the light most favorable to Plaintiff as the non-moving party. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015).

Defendant produces sports-related news and entertainment programming. Though best known for its television channel, Defendant also offers access to video content through an application called the "WatchESPN Channel," which is available on the Roku digital streaming device. Roku allows users to view videos and other content on their televisions by means of Internet streaming.

Plaintiff downloaded the WatchESPN Channel on his Roku device and used it to watch sports-related news and events. He did not consent to Defendant's sharing his information with a third party. But every time Plaintiff watched a video, Defendant knowingly disclosed to a third party, Adobe [**4]  Analytics: (1) Plaintiff's Roku device serial number and (2) the identity of the video that he watched.

Adobe uses the information obtained from Defendant to identify specific consumers by connecting that information "with existing data already in Adobe's profile of th[ose] individual[s]." Adobe obtains the additional information—such as "email addresses, account information, or Facebook profile information, including photos and usernames"—from sources other than Defendant. Adobe gives the resulting data back to Defendant in an aggregated form; Defendant in turn provides advertisers with aggregated information about its users' demographics.

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876 F.3d 979 *; 2017 U.S. App. LEXIS 24168 **; 46 Media L. Rep. 1039; 2017 WL 5762817

CHAD EICHENBERGER, Plaintiff-Appellant, v. ESPN, INC., a Delaware corporation, Defendant-Appellee.

Prior History:  [**1] Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:14-cv-00463-TSZ. Thomas S. Zilly, Senior District Judge, Presiding.

Eichenberger v. ESPN, Inc., 2015 U.S. Dist. LEXIS 157106 (W.D. Wash., May 7, 2015)

Disposition: AFFIRMED.


video, consumer, privacy, service provider, concrete, watched, ordinary person, identify an individual, disclosure, discloses, protects, alleges, qualify

Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Constitutional Law, Case or Controversy, Standing, Elements, Business & Corporate Compliance, Communications Law, Federal Acts, Video Privacy Protection Act, Preliminary Considerations, Justiciability, Standing, The Judiciary