Nixon v. Pond5, Inc.

Background

Matthew Nixon and Peter Fleming sued Pond5, Inc. on behalf of themselves and a proposed class under the Video Privacy Protection Act, 18 U.S.C. § 2710. Pond5 sells and provides access to prerecorded stock videos through its website. The plaintiffs alleged that Pond5 used Meta’s Tracking Pixel, which sent Meta information about videos they viewed or purchased, along with cookies containing Facebook identifiers and browser identifiers. They alleged that Pond5 did this without their knowledge or consent.

Pond5 moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the plaintiffs lacked standing because they had not suffered a concrete injury, and under Rule 12(b)(6), arguing that the complaint did not state a valid Video Privacy Protection Act claim.

Standing

The court denied Pond5’s Rule 12(b)(1) motion. It held that the plaintiffs plausibly alleged a concrete injury because they claimed Pond5 disclosed their private video-viewing or downloading information to Meta without consent. The court found that this alleged harm was sufficiently similar to the traditional legal claim involving public disclosure of private facts. It also found that the alleged injury was particularized, actual, traceable to Pond5’s use of the Tracking Pixel, and capable of being addressed through the requested monetary and injunctive relief.

Video Privacy Protection Act Claim

The Video Privacy Protection Act imposes liability when a video-tape service provider knowingly discloses personally identifiable information about a consumer’s use of the service. The court explained that, under recent Second Circuit precedent, information is personally identifiable under the Act when it would allow an ordinary person to identify a consumer’s video-watching habits. Information that only a sophisticated technology company could use to identify the consumer is not enough.

The plaintiffs alleged that Meta received the video titles and URLs along with the “c_user,” “fr,” and “datr” cookies. They argued that the “c_user” cookie contained a Facebook identifier that could be used to identify them. The court held that these allegations were materially like other Pixel-based claims rejected by the Second Circuit. An ordinary person, without additional explanation or annotation, would not understand the “c_user” field and its associated code to be a person’s Facebook identifier or use it to identify that person’s video-watching habits.

Because the plaintiffs did not plausibly allege that Pond5 disclosed personally identifiable information as defined by the Act, the court granted Pond5’s Rule 12(b)(6) motion. The court did not need to decide Pond5’s separate arguments that the claims were time-barred or that the plaintiffs consented to the alleged disclosures. Pond5 had also withdrawn its argument that it was not a video-tape service provider, so the court did not address that issue.

Leave to Amend and Disposition

The plaintiffs requested permission to amend if the court dismissed the complaint. The court denied that request, concluding that amendment would be futile in light of the Second Circuit’s decisions concerning Pixel-based Video Privacy Protection Act claims. The plaintiffs had not explained how they would amend the complaint or supplied additional details that would overcome those decisions.

The court’s final disposition was to deny Pond5’s Rule 12(b)(1) motion, grant Pond5’s Rule 12(b)(6) motion, and deny the plaintiffs’ request for leave to amend. The complaint was dismissed with prejudice, the motion was terminated, and the case was closed.