United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 27, 2025 Decided August 12, 2025
No. 24-7022
NICOLE PILEGGI, INDIVIDUALLY AND ON BEHALF OF OTHERS
SIMILARLY SITUATED,
APPELLANT

Vv.

WASHINGTON NEWSPAPER PUBLISHING COMPANY, LLC,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-00345)

Joshua I. Hammack argued the cause for appellant. On the
briefs was Michael A. Caddell.

Grace W. Knofczynski argued the cause for appellee. With
her on the brief were Scott H. Angstreich and Andrew Skaras.
Mark C. Hansen entered an appearance.

Before: MILLETT and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge MILLETT.

Concurring opinion filed by Senior Circuit Judge
RANDOLPH.

MILLETT, Circuit Judge: The Video Privacy Protection
Act was passed in 1988 to deter the disclosure to any person of
private video tape rental records. Thirty-seven years later, the
question before this court is how that statute applies to online
videos.

After signing up to receive the Washington Examiner’s
newsletter, Ms. Pileggi chose to visit the Washington
Examiner’s website. Unbeknownst to Ms. Pileggi, a piece of
computer code called the “Meta Pixel” transmitted to Meta
information about the videos she watched on the website. She
sued the Washington Examiner’s owner, Washington
Newspaper Publishing Company, for violating the Video
Privacy Protection Act.

The Video Privacy Protection Act defines a consumer
protected by the statute as “any renter, purchaser, or subscriber
of goods or services from a video tape service provider[.]” 

(a)(1). The district court held that Ms. Pileggi is
not a “consumer” within the meaning of the Act because she
did not sufficiently allege the requisite connection between the
newsletter for which she had registered and the private
information transmitted to Meta. Ms. Pileggi’s choice of
videos to view on the website was the only information
disclosed to Meta, and she did not use the newsletter to access
the website or its videos.

On appeal, Ms. Pileggi argues that a plaintiff does not need
to subscribe to a video to have a cause of action under the Video
Privacy Protection Act. According to Ms. Pileggi, any plaintiff
3

who purchases, rents, or buys any “good or service” from a
third party and then later watches an unrelated video provided
by that party has a cause of action under the Act. Ms. Pileggi
also renews her argument that the newsletter constitutes a
sufficient connection to the videos on the website for her to be
a consumer.

We affirm the district court’s dismissal of Ms. Pileggi’s
complaint. To state a claim under the Video Privacy Protection
Act, a plaintiff must allege that: (1) she purchased, rented, or
subscribed to a video cassette tape or similar audio-visual good
or service, (2) the video tape service provider collected
personally identifiable information about that audio-visual
good or service, and (3) that private information was
disseminated to a third party without her consent.

I
A

The Video Privacy Protection Act (“Video Privacy Act”)
traces its origins to the 1987 nomination of Judge Robert Bork
of the United States Court of Appeals for the District of
Columbia Circuit to the Supreme Court. During the
confirmation process, a journalist obtained records of Judge
Bork’s video rentals and published details about them. Michael
Dolan, The Bork Tapes, WASHINGTON CITY PAPER (Sep. 25,
1987), https://perma.cc/37V2-T2ZD.

While Judge Bork’s rental history contained only
innocuous titles like Hitchcock classics and James Bond
thrillers, Members of Congress from both parties reacted
strongly to this disclosure. See Nomination of Robert H. Bork
to be Associate Justice of the Supreme Court of the United
States Before the S. Comm. on the Judiciary, 100th Cong. 2819
4

(1987) (“Judiciary Hearing’) (statement of Sen. Biden)
(“Quite frankly, I think it is reprehensible * * * that a Supreme
Court nominee would have someone going down and looking
at what videos he or she rented.”); 134 Cong. Rec. 31842
(1988) (statement of Rep. Moorhead) (“Both the Democrats
and the Republicans deciding upon Judge Bork’s judgeship
became outraged and called for legislation.”).

Congress quickly responded with the Video Privacy Act.
The Act’s purpose is to “preserve personal privacy with respect
to the rental, purchase or delivery of video tapes or similar
audio visual materials[.]” S.REP. No. 100-599, at 1 (1988). To
that end, the statute renders civilly liable any “video tape
service provider who knowingly discloses, to any person,
personally identifiable information concerning any consumer
of such provider[.|” 

(b)(1). The Video
Privacy Act defines a “video tape service provider” as any
person engaged in the “rental, sale, or delivery of prerecorded
video cassette tapes or similar audio visual materials|.]” Jd.
§ 2710(a)(4). Personally identifiable information “includes
information which identifies a person as having requested or
obtained specific video materials or services[.|” Jd.
§ 2710(a)(3). A “consumer” is “any renter, purchaser, or
subscriber of goods or services from a video tape service
provider[.]” Jd. § 2710(a)(1).

Remedies under the Video Privacy Act are robust. For
“any act” in violation of the law, 

(c)(1), a
court may award actual damages “not less” than $2,500,
punitive damages, attorneys’ fees, and equitable relief, 

§ 2710(c)(2).!

1 Although located in Title Eighteen of the United States Code,
the Video Privacy Act creates only civil, not criminal, liability. 

(c).
Lastly, the Video Privacy Act allows a video tape service
provider to disclose personally identifiable information only if
it first obtains the consumer’s “informed, written consent[.]”

(b)(2)(B). The Act was amended in 2013 to
allow consent “through an electronic means using the Internet”
for up to “2 years or until consent is withdrawn by the
consumer[.]” Jd. § 2710(b)(2)(B), (ii)(ID); see Video Privacy
Protection Act Amendments Act of 2012, 

 Stat. 2414 (2013).

B
1

Washington Newspaper Publishing Company
(“Washington Newspaper’) owns the Washington Examiner, a
news publication that has both print and online offerings.

Ms. Pileggi is an Illinois resident who regularly visits the
Washington Examiner’s website. According to her complaint,
she began receiving the Washington Examiner’s email
newsletter after she provided it with her name and contact
information. The newsletters she has received have embedded
news videos and hyperlinks to the Washington Examiner’s
website. Ms. Pileggi, though, does not allege that she ever
visited the Washington Examiner’s website by way of a link in
her newsletter.

According to Ms. Pileggi, the Washington Examiner’s
webpages automatically played videos when the webpages
loaded. Access to the webpages was not restricted to
newsletter recipients. Anyone who wanted to visit the
Washington Examiner’s website and watch the videos could do
so regardless of whether that person also received the email
6

newsletter. Ms. Pileggi says that, wholly apart from the
newsletter, she independently navigated to the Washington
Examiner’s website and watched videos there.

Ms. Pileggi maintains that the Washington Examiner’s
website contains the “Meta Pixel,” a “snippet of code that,
when embedded on a third-party website, tracks users[]” and
information about their use of the website. Am. Compl. § 46.
The Meta Pixel then transmits information to Meta
(Facebook’s owner) to help Washington Newspaper target
advertisements at Facebook users like Ms. Pileggi. That
information details, among other things, which videos a person
watched while visiting the website. The Meta Pixel also
identifies website visitors by matching their IP addresses and
other data to information associated with their Facebook
accounts. Ms. Pileggi does not allege that the Meta Pixel was
embedded in the email newsletters or that any information
about any videos she watched in the newsletters was
transmitted to Meta.

2

Ms. Pileggi sued Washington Newspaper under the Video
Privacy Act in the United States District Court for the District
of Columbia. Her complaint alleges that the company
transmitted information about the videos she watched to Meta
without her consent.

The district court dismissed Ms. Pileggi’s complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).  Pileggi v. Washington Newspaper Publishing Co.,
No. 23-CV-345, 

, at *11 (D.D.C. Jan. 29,
2024). The court held that a plaintiff must purchase, rent, or
subscribe to a video or similar audio-visual material to be a
“consumer” under the Video Privacy Act. Jd. at *10-11. The
7

court also held that the personally identifiable information
protected by the Act must concern the video that the plaintiff
purchased, rented, or subscribed to. Jd. Because the only
information transmitted to Meta concerned the videos that Ms.
Pileggi watched on the website, not the videos embedded in the
newsletters, and because the newsletters were not the means by
which Ms. Pileggi accessed the videos on the website, the court
held that Ms. Pileggi was not a consumer under the Act. /d.

II

A

This court reviews de novo a district court’s decision
granting a motion to dismiss for failure to state a claim. Wright
v. Eugene & Agnes E. Meyer Found., 68 F 4th 612, 619 (D.C.
Cir. 2023). In doing so, the court takes as true the complaint’s
plausible factual allegations and all reasonable inferences from
those facts. 

B

The district court had jurisdiction under 

.
This court has jurisdiction under 

.

The district court ruled that Ms. Pileggi has standing,
Pileggi, 

, at *4-8, and Washington
Newspaper does not contest her standing on appeal.
Nonetheless, “we have an independent obligation to assure
ourselves of our jurisdiction.” Sierra Club v. Department of
Transp., 

 (2025) (quoting Waterkeeper
Alliance, Inc. v. Regan, 

 (D.C. Cir. 2022)).
To demonstrate standing, a plaintiff must show that (1) she
“suffered an injury in fact that is concrete, particularized, and
actual or imminent”; (2) “the injury was likely caused by the
8

defendant”; and (3) “the injury would likely be redressed by
judicial relief.” TransUnion LLC v. Ramirez, 

 (2021).

Ms. Pileggi has shown standing because the harm she
alleges—having one’s private video viewing history given to
another without consent—is analogous to two types of privacy
harms cognizable at common law. In addition, this harm is
traceable to Washington Newspaper and could be remedied by
the court.

1

To satisfy Article III, the intrusion on Ms. Pileggi’s
privacy must be, among other things, a “concrete” injury.
Whether an injury is “concrete” does not turn on whether the
injury is tangible or intangible. Spokeo, Inc. v. Robins, 

 (2016), as revised (May 24, 2016). Instead,
for Article III purposes, an injury is “concrete” if it is similar
to a type of harm cognizable at common law. See TransUnion,

. Said another way, an injury is concrete if it
has “a close historical or common-law analogue[.|” Jd. As the
word “analogue” indicates, Article II] does not require “an
exact duplicate in American history and tradition.” Jd. Rather,
Article II] looks for a “close relationship” between the harm
remedied by courts in the past and the harm that the plaintiff
wants remedied by a court today. Jd. at 425.

When assessing whether an alleged injury is historically
analogous, congressional judgment matters but is not
dispositive. Spokeo, 

. In particular, Congress
may elevate certain harms “to the status of legally cognizable
injuries” that “were previously inadequate in law.”
TransUnion, 

-426 (quoting Spokeo, 

).
9

One way Congress can render a traditionally non-
cognizable injury concrete is by giving legal effect to “chains
of causation that will give rise to a case or controversy where
none existed before.” Spokeo, 

 (quoting Lujan
v. Defenders of Wildlife, 

 (1992) (Kennedy,
J., concurring in part and concurring in the judgment)). For
example, a harm like global warming would generally be non-
cognizable given the many causal links involved were it not for
congressional recognition of that harm, as the Supreme Court
concluded in Massachusetts v. EPA, 

 (2007).
The same is true for suits against corporations that do not use
forced labor, but conduct business with companies that do. See
Doe 1 v. Apple Inc., 

 (D.C. Cir. 2024). In
each instance, the defendant is only liable because Congress
determined that liability should extend further back on the
causal chain than the common law would otherwise allow.

Another way Congress can render a non-cognizable injury
concrete is by providing a private right of action to remedy a
harm that is a lesser form of a harm recognized at common law.
For example, to prove defamation under the common law, a
plaintiff must show that the information told to others about her
is false. RESTATEMENT (SECOND) OF TORTS § 558 (A.L.I. 1977)
(“SECOND RESTATEMENT”). It is not enough to prove that the
information is misleading. Yet Congress can render concrete
the lesser harm of defamation through misleading information
by creating a private right of action to remedy that injury.
TransUnion, 

.

Similarly, a fleeting disturbance of one’s peace and quiet
by a single telephone call may be insufficient to sustain a
common law claim for intrusion upon seclusion. SECOND
RESTATEMENT § 652B cmt. d. But courts have concluded that
Congress may render uninvited, unwanted, and intrusive text
messages or phone calls a concrete harm by enacting a private
10

right of action. See Gadelhak v. AT&T Services, Inc., 

 (7th Cir. 2020); Lupia v. Medicredit, Inc., 8 F 4th
1184, 1192 (10th Cir. 2021). So long as Congress alters the
degree of harm and not the kind of harm, congressional action
can make an injury concrete.

2

Applying those principles here, having one’s private
viewing history provided without consent to a third party is a
concrete injury. Salazar v. National Basketball Ass’n, 

 (2d Cir. 2024); Salazar v. Paramount
Global, 

 (6th Cir. 2025); Eichenberger v.
ESPN, Inc., 

 (9th Cir. 2017); Perry v.
Cable News Network, Inc., 

 (11th
Cir. 2017).”

Ms. Pileggi asserts a violation of her right to privacy under
the Video Privacy Act concerning her personal decisions about
what to watch and not to watch. Washington Newspaper
violated that right, Ms. Pileggi asserts, by transmitting her

2 Since Perry, the Eleventh Circuit has ruled en banc that

plaintiffs must demonstrate an exact match between the elements of
their private cause of action and a common law claim to demonstrate
that their injury is concrete. Hunstein v. Preferred Collection &
Memt. Servs., Inc., 

 (11th Cir. 2022) (en
banc). We do not agree that a plaintiff must “plead every element of
a common-law analog to satisfy the concreteness requirement.”
National Basketball Ass’n, 

 n.6; see Barclift v.
Keystone Credit Servs., LLC, 93 F.Ath 136, 145 (3d Cir.) (“We
believe that if the Court wanted us to compare elements, it would
have simply said so.”), cert. denied, 

 (2024); Shields
v. Professional Bureau of Collections of Maryland, Inc., 55 F Ath
823, 829 (10th Cir. 2022) (holding that the plaintiff need not “plead
and prove the tort’s elements to prevail”).
11

video-viewing history to Meta without her knowledge or
consent. Am. Compl. { 20.

An individual’s choices about media consumption can
communicate sensitive and historically private interests. For
example, viewing history can indicate religious beliefs,
personal interests, sexual preferences, medical concerns,
relationship problems, obsessions, phobias, prejudices, or
political likes and dislikes. Because the unconsented-to and
unknowing disclosure of such personal information
corresponds to the common law torts of “intrusion upon
seclusion” and “disclosure of private information,”
TransUnion, 

, Ms. Pileggi’s asserted injury is
concrete.

a

Ms. Pileggi’s injury is closely analogous to the harm of
intrusion upon seclusion. See Eichenberger, 

;
Perry, 

; Paramount Global, 

& n4. Traditionally, “[o]ne who intentionally intrudes,
physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability
to the other for invasion of his privacy, if the intrusion would
be highly offensive to a reasonable person.” SECOND
RESTATEMENT § 652B. “The invasion may be by * **
investigation or examination into his private concerns, as by
opening his private and personal mail[.]” Jd § 625B cmt. b.
“{Ijnvasion of privacy *** does not depend upon any
publicity given to the person whose interest is invaded or to his
affairs.” Id. § 652B cmt. a.

The Video Privacy Act remedies the kind of harm
addressed by the intrusion-upon-seclusion tort. The complaint
alleges that Washington Newspaper intruded upon Ms.
12

Pileggi’s seclusion by disclosing her private video viewing
history to a third party (Meta) without her knowledge or
consent. Such an intrusion is offensive to a reasonable person.
It is as if a magazine seller nosed around in someone’s mailbox
to learn what periodicals to press the owner to buy. Cf Stanley
v. Georgia, 

 (1969) (recognizing an
individual’s “right to read or observe what he pleases—the
right to satisfy his intellectual and emotional needs in the
privacy of his own home”; “He is asserting the right to be free
from state inquiry into the contents of his library.”); see
Judiciary Hearing at 2820-2821 (statement of Sen. Leahy) (“It
is nobody’s business what [someone] * * * watch[es] on
television. * * * [T]hat is something that is not a conservative
or a liberal or moderate issue. It is an issue that goes to the
deepest yearnings of all Americans[.]”); see also Mary Madden
& Lee Rainie, Pew Research Center, Americans’ Attitudes
About Privacy, Security and Surveillance 42-43 (May 20,
2015), https://perma.cc/7RY7-B2HV (finding that 44% of
Americans think “online video sites” “shouldn’t save any
information” about the videos they watch) (emphasis added).

Historically, intrusion upon seclusion only gives a plaintiff
the right to sue the party that intruded upon her seclusion. Yet
Ms. Pileggi is suing Washington Newspaper, not Meta, even
though Meta was the entity that Ms. Pileggi did not consent to
receiving her video viewing records. But that makes no
difference as to the concreteness of her injury. Washington
Newspaper allegedly collected and handed off Ms. Pileggi’s
private information to Meta for its own benefit. Holding a
party liable for contributing to a tort is a well-established
common law principle. See SECOND RESTATEMENT § 876.
And Congress may render liable the party that made the privacy
intrusion possible. See Spokeo, 

. As alleged,
Washington Newspaper effectively “aided and abetted” Meta’s
13

intrusion upon Ms. Pileggi’s private affairs by giving Meta
access to her private information without her consent.

As for whether the disclosure of private video records is
“highly offensive,” SECOND RESTATEMENT § 652B, that
question goes to the degree of harm, not the injury’s
recognition at common law, and so does not affect the
concreteness of the Video Privacy Act injury under Article III.
See Melito v. Experian Mktg. Solutions, Inc., 

(2d Cir. 2019); Susinno v. Work Out World Inc., 

 (3d Cir. 2017); Krakauer v. Dish Network, L.L.C., 

 (4th Cir. 2019); Gadelhak, 

;
Ward v. NPAS, Inc., 

 (6th Cir. 2023); Van
Patten v. Vertical Fitness Group, LLC, 

(9th Cir. 2017); Lupia, 8 F.4th at 1192; Drazen v. Pinto, 

 (11th Cir. 2023) (en banc). As the adverb
“highly” suggests, the offensiveness inquiry involves drawing
lines between intrusions upon seclusion that are severe enough
to warrant liability and those that are insufficient. Although the
Constitution limits Congress to the kinds of harm that lead to
liability at common law, drawing lines between degrees of
harm implicates policy judgments that fall more naturally in
Congress’s wheelhouse. See TransUnion, 

.
Because the disclosure of private video records parallels the
offensive intrusions into privacy recognized at common law,
Congress here simply gave protection to a common law injury
cloaked in more modern garb.

b

Ms. Pileggi’s claim also parallels the longstanding tort of
publicity given to private life. At common law, “[o]ne who
gives publicity to a matter concerning the private life of another
is subject to liability to the other for invasion of his privacy, if
the matter publicized is of a kind that (a) would be highly
14

offensive to a reasonable person, and (b) is not of legitimate
concern to the public.” SECOND RESTATEMENT § 652D.
Publicity “means that the matter is made public, by
communicating it to the public at large, or to so many persons
that the matter must be regarded as substantially certain to
become one of public knowledge.” Jd. § 652D cmt. a. The
Washington Newspaper’s alleged disclosure of video records
to Meta corresponds to those elements.

First, as already discussed, the disclosure of Ms. Pileggi’s
video viewing records is highly offensive to a reasonable
person. Handing out a person’s individual viewing preferences
to others without their knowledge or consent can reveal
intimate facts about that person’s life, putting their likes and
dislikes on display.

Keep in mind that Meta did not simply store Ms. Pileggi’s
private information in a “desk drawer.” TransUnion, 

. Washington Newspaper gave the information to Meta,
which used the information to help Washington Newspaper
target Ms. Pileggi with unwanted advertisements. Am. Compl.
4, 53-58. If Washington Newspaper had sent Ms. Pileggi’s
video viewing history to a stranger, and that stranger repeatedly
approached Ms. Pileggi asking her to buy things based on the
videos she had viewed, most would agree that Ms. Pileggi’s
privacy had been invaded.

To be sure, Ms. Pileggi does not claim to have suffered
public stigma or embarrassment because of the disclosure,
which are harms that not uncommonly accompany the publicity
of private life injury. But stigma and embarrassment are not
elements of the tort. And Ms. Pileggi suffered analogous hurt
because of the loss of control over what, at bottom, is her
private and personal information, as well as a loss of security
from being spied on and having private and sensitive
15

information unwillingly transmitted to a stranger for profit.
Am. Compl. 4 40-51.

In short, the form in which an injury may manifest does
not change the fact of the common law injury itself—namely,
the unconsented prying into private details. While
embarrassment and stigma may increase the damages
recoverable for the violation, that does not mean that more
modern types of intrusion on privacy are any less injurious.
After all, Judge Bork’s penchant for Alfred Hitchcock films
was hardly embarrassing or stigmatizing. See Dolan, The Bork
Tapes. That did not diminish the broad social judgment that
his privacy had been intruded upon.

Second, Ms. Pileggi’s video viewing history is not of any
legitimate concern to the public, and Washington Newspaper
does not argue otherwise.

Third, that leaves the element of publicity. Some circuits
have held that a plaintiff only suffers the kind of harm remedied
by the publicity of private life tort if the plaintiff's private
information is disclosed to the public at large. See Nabozny v.
Optio Solutions LLC, 

 (7th Cir. 2023);
Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F 4th
1236, 1246 (11th Cir. 2022) (en banc); Shields v. Professional
Bureau of Collections of Maryland, Inc., 

(10th Cir. 2022).

The complaint alleges, though, that Meta commonly
provides or sells the data it collects to third parties, which may
well amount to public release. See Am. Compl. § 50 (noting
that Meta tends to sell video viewing data that it receives
through the Meta Pixel).
16

Plus, even if Meta is treated as a private individual who is
unlikely to disclose Ms. Pileggi’s viewing records to anyone
else, the kind of harm protected and remedied by the tort is the
disclosure of one’s private information without consent. See
National Basketball Ass’n, 

 (holding that
“unauthorized” disclosure is analogous to the common law
tort). After all, the injury arising from a disclosure of private
video viewing records to someone like a family member could
exceed that from disclosure of private information to
disinterested members of the public. Congress’s adjustment of
how and to how many people a disclosure of private
information must be made for the disclosure to be wrongful
simply recognizes a remediable injury that captures further
degrees of common law harm. That falls within Congress’s
constitutional bailiwick. TransUnion, 

.

Finally, “[mJany American courts did not traditionally
recognize intra-company disclosures” or disclosures to
“vendors” that were paid to handle private information as
privacy harms. TransUnion, 

 n.6; see also
Barclift v. Keystone Credit Servs., LLC, 

, 146 Gd
Cir.) (a disclosure to an “intermediary” is not sufficiently
concrete), cert. denied, 

 (2024); Nabozny, 84
F 4th at 736 (same).

But that line of cases has no bearing here because Meta did
not act as an intermediary in this case, and Washington
Newspaper has never suggested otherwise. See National
Basketball Ass’n, 

 (“Meta isn’t a ‘ministerial
intermediary,’” and “Meta’s use of the disclosed data is very
different” from that of an intermediary.). Unlike the employees
of a credit reporting agency, TransUnion, 

 n.6,
or a mailing company that distributes debt letters, Shields, 

, Meta was the intended recipient of Ms.
Pileggi’s private information. Meta agreed with Washington
17

Newspaper to track Ms. Pileggi’s video viewing records and
match that information with her Facebook data so that
Washington Newspaper could send _ her _ targeted
advertisements, and so that Meta could further use that
information for its own commercial purposes. Am. Compl.
4] 50-58. So Meta did not simply convey information between
parties. Meta and Washington Newspaper exchanged
information about Ms. Pileggi because knowing what videos
Ms. Pileggi (and others) watch is valuable to both of them.

3

In sum, Ms. Pileggi’s injury is concrete twice over because
it is closely analogous to harms remedied by two different
common law torts. Ms. Pileggi also adequately alleges that
Washington Newspaper caused that harm by transmitting her
video viewing history to Meta without her consent. And that
intrusion on privacy is judicially remediable through damages.
For those reasons, Ms. Pileggi has shown standing.

II

The Video Privacy Act protects the privacy of those who
rent, purchase, or subscribe to a video cassette tape or similar
audio-visual material. A plaintiff has a cause of action if
private information about the video or similar audio-visual
material that she rented, purchased, or subscribed to is
disclosed to a third party without consent. 

(b).

Although Ms. Pileggi received videos and video links from
Washington Newspaper in a newsletter email for which she
registered, the complaint does not allege that Washington
Newspaper collected or transmitted information about her
viewing of any newsletter videos. Instead, Ms. Pileggi’s claims
focus exclusively on the transmittal of information to Meta
18

about videos Ms. Pileggi watched on the Washington
Examiner’s website, separate and apart from the newsletter.
But Ms. Pileggi did not rent, purchase, or subscribe to the
videos on the website. So Ms. Pileggi has not stated a claim
against Washington Newspaper under the Video Privacy Act.

A

Ms. Pileggi’s primary argument on appeal is that a plaintiff
need not subscribe to a video good or service to be a consumer
under the Video Privacy Act. Ms. Pileggi did not present this
argument to the district court. Ordinarily, that would result in
forfeiture. Keepseagle v. Perdue, 

 (D.C.
Cir. 2017).

Forfeiture, however, “does not apply where ‘the district
court nevertheless’ heard and ‘addressed the merits of the
issue.’”” Campaign Legal Center v. Federal Election Comm’n,

 (D.C. Cir. 2024) (quoting Blackmon-
Malloy v. United States Capitol Police Bd., 

(D.C. Cir. 2009)). Here, the district court held that Ms. Pileggi
failed to state a claim because the statute requires the consumer
to purchase, rent, or subscribe to “audio-visual goods or
services,” and the information transmitted to a third party must
concern the audio-visual goods or services that the plaintiff
acquired to violate the Video Privacy Act. Pileggi, 

, at *11. The district court’s premise that the goods or
services must be audio-visual goods or services was a stated
basis for the district court’s holding. For that reason, Ms.
Pileggi may challenge it on appeal.

B

The district court was correct that Ms. Pileggi is not a
“consumer” protected by the Video Privacy Act because, in
19

visiting the Washington Examiner’s website, she did not
subscribe to a video or similar audio-visual good or service. As
a result, Washington Newspaper did not violate the Video
Privacy Act when it gathered information about her viewing
history on the website and gave it to Meta.

1

The Video Privacy Act’s cause of action applies to
“consumer[s]” whose viewing histories have been disclosed
without their consent. 18 U.S.C § 2710(b)(1). And only those
who rent, purchase, or subscribe to a video are “consumer[s]”
under the statute. /d. § 2710(a)(1). As a result, there are five
reasons why it is not enough, as Ms. Pileggi argues, just to
obtain some other good or service furnished by a person who
also happens to provide videos or audio-visual materials.
Pileggi Br. 16-27; Pileggi Reply Br. 3-5.

First, the statutory text tells us that only a “consumer” has
a cause of action under the Video Privacy Act. 

(b)(1). The Act defines “consumer” as “any renter,
purchaser, or subscriber of goods or services from a video tape
service provider[.|” Jd § 2710(a)(1). A video tape service
provider is a person who supplies “video cassette tapes or
similar audio visual materials[.|” Jd § 2710(a)(4). Putting the
words together, a “consumer” of a “video tape service
provider” is someone who “rent[s], purchase[s], or
subscribe[s]” to the “good or service” that a “video tape service
provider” offers—that is, “video cassette tapes or similar audio
visual materials.” Jd. § 2710(a).

Second, “useful clue[s]” in the statute and its structure,
Dubin v. United States, 

 (2023), confirm that
to be a “consumer,” the plaintiff must have obtained a “video
20

or audio visual service” from the defendant, and not just any
good or service.

To start, “the title of a statute and the heading of a section”
can help determine a statute’s “meaning.” Dubin, 599 US. at
120-121 (quoting Almendarez-Torres v. United States, 

 (1998)); see also United States v. Burwell, 

, 991 (D.C. Cir. 2024); Huisha-Huisha v. Mayorkas,

 (D.C. Cir. 2022). Here, the statute’s title and
the liability section’s heading “point to a narrow[] reading” that
is “centered around” videos and those who market them.
Dubin, 

. After all, Congress named the law the
“Video Privacy Protection Act of 1988.” 

, 

 (1988) (emphasis added). The Act’s title is
“Wrongful disclosure of video tape rental or sale records.” 

 (emphasis added); see 

,
102 Stat. at 3195. And the liability section’s heading is “Video
Tape Rental and Sale Records.” 

(b)
(emphasis added); see 

, 102 Stat. at
3195.

A statute’s title “is ‘especially valuable [when] it
reinforces what the text’s nouns * * * independently suggest.”
Dubin, 

 (quoting Yates v. United States, 

, 552 (2015) (Alito, J., concurring in judgment)).
Here, the noun “video” suffuses the statute, independently
indicating that the relevant good that a consumer subscribes to
must be a video, not just any good or service provided by
someone who also happens to offer video or audio-visual
services.

For example, the “personally identifiable information”
protected by the Act refers to information that “identifies a
person as having requested or obtained specific video
materials|.|” 

(a)(3) (emphasis added). A
21

“video tape service provider” distributes “video cassette tapes
or similar audio visual materials[.]’ Jd § 2710(a)(4)
(emphases added). And no liability attaches if the information
disclosed does not identify the “title, description, or subject
matter of any video tapes or other audio visual material”
acquired by a consumer. Jd. § 2710(b)(2)(D)(ii) (emphasis
added).

Third, the statute’s substantial penalty provision weighs in
favor of enforcing the textual linkage between a consumer and
a video. The statute provides that “[a]ny person aggrieved by
any act”—note the singular “act’”—‘in violation of this section
may bring a civil action[.]” 

(c)(1). And the
penalty for each and every single “act” in violation of the
statute: “[N]ot less than liquidated damages in an amount of
$2,500[.]” Jd. § 2710(c)(2)(A).

So each time a defendant transmits information about a
single video that one plaintiff watched to a single third party,
the court must award at least $2,500, even if the plaintiffs
actual damages are less. 

(2)(A). This means
that a defendant with a website that has 100 visitors who watch
five videos apiece would be liable for at least $1.25 million in
damages if it disclosed their video choices. The statutory text
and purpose demonstrate Congress’s desire to protect
consumers of actual video services with such remedies. But
the stringency of the remedy weighs against judicial expansion
of the text to cover harms further removed from commerce in
videos or similar audio-visual services.

Fourth, the Video Privacy Act’s authorization of punitive
damages, 

(c)(2)(B), requires that the statutory
text be construed against the expansive liability that Ms.
Pileggi proposes. The Act’s punitive damages are “intended to
punish the defendant and to deter future wrongdoing|,]|” not to
22

make the plaintiff whole. Cooper Indus., Inc. v. Leatherman
Tool Group, Inc., 

 (2001). Liability
provisions in statutes with civil penalties that punish and deter
must be construed narrowly, ensuring fair notice to regulated
parties. Cf Bittner v. United States, 

 (2023)
(“The law is settled that penal statutes are to be construed
strictly[.]”) (quoting Commissioner v. Acker, 

(1959)).

Finally, the Video Privacy Act could not effectively serve
its purpose of insulating video-viewing records from disclosure
if Ms. Pileggi’s view prevailed. If acquiring any good or
service sufficed to convey a cause of action with such
expansive remedies, a plaintiff could purchase a single ticket at
a baseball game and then sue the baseball team’s owner after
watching a free video on the team’s website years later. Simply
“purchas[ing]” a “good[] or service[]” in the form of a ticket
would entitle people not to have their separate website visits
tracked. 

(a)(1). At the same time, those who
just visit the website without first buying a ticket or another
good or service would not enjoy the Video Privacy Act’s
protections, even though their video-viewing history would be
tracked in the exact same manner as that of the ticket purchaser.
Nothing in the Act’s language, structure, or purpose warrants
such haphazard and unreasoned line-drawing.

In fact, distinguishing website visitors based on whether
they also happened to purchase another good or service offered
by the business could well prove unadministrable. By creating
liability only for the transmission of a consumer’s personally
identifiable video information, the statute presumes that video
tape service providers know whether someone is a “consumer”
of their goods or services. But if any good or service suffices
to make someone a statutorily protected consumer, a video tape
service provider would have to determine and differentiate
23

between those who just visit the website and those who visit
the website after having at some unknown prior time purchased
some different good or service. That would be a daunting task
under any circumstances. Doubly so because usernames
employed by those visiting websites do not always, or even
often, match credit or debit card names. See Mary Madden,
Pew Research Center, Public Perceptions of Privacy and
Security in the Post-Snowden Era 41 (Nov. 12 2014),
https://perma.cc/TUM9-B74B (finding that 42% of Americans
report accessing websites with an anonymous username). And
those buying tickets with cash will leave the provider no ability
to carve their website traffic out from that of others. See Utility
Air Regulatory Group v. EPA, 

, 320 (2014) (courts
should not read statutes to be “unworkable”).

At the end of the day, under Ms. Pileggi’s position, video
tape service providers would just have to assume that all
visitors to their websites are consumers. But that interpretation
would leave the term “consumer” “no work to do” in the
statute. Fischer v. United States, 

 (2024); see
also Pulsifer v. United States, 

 (2024)
(rejecting an interpretation that rendered “an entire
subparagraph meaningless”) (quoting National Ass’n of Mfrs.
v. Department of Defense, 

 (2018)).3

3 The Video Privacy Act’s consent provision insulates video
tape service providers from liability for disclosures if they obtain the
consumer’s “informed, written consent” in advance. 

(b)(2); see 

 § 2710(b)(2)(B), (b)\(2)(B) Gi) & (iii). While
the consent provision may be workable for customers directly
acquiring videos, the statutory text does not suggest that Congress
meant to require every video tape service provider to obtain a waiver
from every t-shirt purchaser on the chance that the same person
might sometime in the ensuing years visit the business’s website and
watch a video on it.
24

2

Ms. Pileggi argues that the statutory text indicates that a
person need not purchase, rent, or subscribe to a video good or
service to be a “consumer” under the Video Privacy Act. She
relies on the meaningful-variation canon of statutory
construction. That canon reasons that if “[a] document has
used one term in one place, and a materially different term in
another, the presumption is that the different term denotes a
different idea[.|” Southwest Airlines Co. v. Saxon, 

 (2022) (first alteration in original) (quoting A. SCALIA
& B. GARNER, READING LAW 170 (2012)). Specifically, Ms.
Pileggi points out that, in defining “consumer,” Congress
omitted the adjective “video” before the phrase “goods or
services[.]” 

(a)(1). Yet in defining
“personally identifiable information,’ the word “video”
appears before the words “materials or services[.|” Jd.
§ 2710(a)(3). From that comparison, Ms. Pileggi concludes
that the Act focuses the cause of action on a specific kind of
harm—the transmittal of video viewing records—regardless of
whether the product consumed was a video.

The point of statutory canons, however, is to aid in
resolving ambiguous statutory terms or phrases, not to cause a
court to miss the forest for a single tree.

To start, Ms. Pileggi’s argument disregards the rest of the
sentence. The definition of “consumer” in full is:

any renter, purchaser, or subscriber of goods or services
from a video tape service provider[.]

(a)(1).
25

Read as a whole, there is no meaningful or material change
in textual focus. Congress confined a “consumer” protected by
the Video Privacy Act to someone who is a “renter, purchaser,
or subscriber of goods or services” that come “from a video
tape service provider.” 

(a)(1) (emphasis
added). The logical meaning of the sentence as a whole is that
a consumer is a person who obtains the products or services
that one seeks from a video tape service provider—that is,
videos. See Paramount Global, 

 (The
definition of video tape service provider is “tether[ed] [to] the
definition of ‘consumer’” and “pinpoints the relevant ‘goods or
services[.]’”). After all, if Congress sought to protect the
consumers of “goods or services from a medical provider,” the
natural reading would be that consumers are those who
received medical services, not those who only bought a coffee
in the foyer. The named source “from” which the product must
derive gives meaning to the scope of the regulated goods and
services.

To that point, the Supreme Court has been explicit that the
word “‘from’ necessarily draws its meaning from context,”
County of Maui v. Hawaii Wildlife Fund, 

, 178
(2020), and that “context often imposes limitations” on what a
phrase beginning with “from” means, id at 172. See also
National Ass’n of Clean Water Agencies v. EPA, 

 (D.C. Cir. 2013) (“‘[F]rom’ is susceptible to
different meanings” and requires statutory context to
interpret.).

To illustrate, in County of Maui, the Supreme Court relied
on context to interpret the word “from” in a definitional phrase
in the Clean Water Act. 590 U.S. at 172. The statute defines
the term “discharge of a pollutant” as the “addition of any

pollutant to navigable waters from any point source[.]” 

(12) (emphasis added). The Court relied on
26

context to reject the plaintiff's broad interpretation that no
matter how “long and far” a pollutant traveled before reaching
a navigable water, a pollutant was “from” a point source if it
could be traced to that source. County of Maui, 590 U.S. at
173, 183. Because the plaintiffs interpretation would extend
the Act’s coverage broadly when the statute’s structure evinced
Congress’s more narrow regulatory purpose, the Court read the
definitional “from” phrase as limiting, not broadening, the
defined statutory term. /d. at 174-176.

Like the plaintiff in County of Maui, Ms. Pileggi’s
interpretation of the Video Privacy Act uses the “from” phrase
in the definition of “consumer” to broaden the statute beyond
what the statutory structure and purpose can support. See
Jarecki v. G. D. Searle & Co., 

 (1961)
(Courts must “avoid” giving “unintended breadth to the Acts
of Congress[.]”). Here, given that the term “video” already
appears in the title, five times in the definitional section, and
thirteen times in the statute as a whole—and keeping in mind
the statute’s animating purpose—Congress could reasonably
have assumed that its regulatory focus was clear. The
placement of “video” at the end rather than the beginning of the
definition of “consumer” is a frail excuse for reading the Video
Privacy Act to reach far beyond its textual “metes and
bounds|.]” United States v. Aguilar, 

 (1995).

Another flaw in Ms. Pileggi’s reading is that courts cannot
put undue weight on a single omission of a word. Instead,
courts must adopt “the reading to which ‘the provisions of the
whole law’ point.” Thaler v. Perlmutter, 130 F 4th 1039, 1046
(D.C. Cir. 2025) (quoting John Hancock Mut. Life Ins. Co. v.
Hrrris Trust & Sav. Bank, 

 (1993)).

Here, too many statutory provisions cut against Ms.
Pileggi’s siloed reading of one part of one definitional
27

provision. Her argument once again takes no account of the
Video Privacy Act’s name, 

, 

 (1988), its title, 

, the definition of
personally identifiable information, 

 § 2710(a)(3), the
definition of video tape service provider, id. § 2710(a)(4), the
liability provision’s title, id. §2710(b), and the consent
provision, id. § 2710(b)(2)(D). The focus on videos, video tape
service providers, and the disclosure of information about
video-viewing or purchasing history pervades the Video
Privacy Act. That makes it both textually strained and logically
improbable that Congress meant for an omitted adjective in the
first half of the definition of “consumer” to transmogrify the
Act into a much more sweeping and unadministrable website
privacy statute that inexplicably turns on _ purchasing
something—anything—at some however-distant point in time
before viewing a video. See Paramount Global, 

 (“The statutory phrase “goods or services’” in the Video
Privacy Act cannot be walled “off from the meaning imputed
by the rest of the statute’s text.”); see also Gustafson v. Alloyd
Co., 

 (1995) (Courts must “construe statutes,
not isolated provisions[.|”). In other words, in statutory

construction as elsewhere, it is best not to let a canon’s tail wag
the dog.

Ms. Pileggi argues that adopting her reading of
“consumer” is necessary to avoid rendering the word “video”
surplusage when it appears in the “personally identifiable
information” definition. 

(a)(3).

Not so. Congress had every reason to add “video” in front
of “materials or services.” In 1988, “personally identifiable
information” referred broadly to things like names, addresses,
social security numbers, and the like. See Cable
Communications Policy Act of 1984, 

(a)(2), 

, 2794 (1984) (defining “personally
28

identifiable information” as information that “identiflies]
particular persons”). So “video” was added to give the phrase
“personally identifiable information” a specialized meaning in
the Video Privacy Act that includes video-viewing choices.‘

Anyhow, even if Ms. Pileggi’s interpretation would
prevent surplusage, the analysis would not change. The
surplusage canon is a tool to effectuate congressional meaning,
not to override contrary textual indicia. See Lamie v. United
States Trustee, 

 (2004) (“[O]ur preference for
avoiding surplusage constructions is not absolute.”);
Chickasaw Nation v. United States, 

 (2001).°

3

Ms. Pileggi offers one last argument for consumer status:
She signed up for the Washington Examiner’ s email newsletter,
which included embedded videos as well as links that
connected to videos on the Washington Examiner’s website.

But Ms. Pileggi does not allege that any of the videos in
the newsletter contained the Meta Pixel that tracks viewing
selections. Neither does she claim that Washington Newspaper
tracked, let alone disclosed to a third party, any video viewing
selections she made within the newsletter. Pileggi, 

, at *10. Nor does she claim that she clicked on any

4 This appeal does not present any question about the meaning
of “personally identifiable information.” Cf Solomon v. Flipps
Media, Inc., 136 F 4th 41, 48-55 (2d Cir. 2025).

> For these reasons, we read the statute differently from the
Second and Seventh Circuits. National Basketball Ass’n, 

; Gardner v. Me-TV National Ltd. Partnership, 132 F 4th 1022,
1025 (7th Cir. 2025).
29

website links in the newsletter that took her to the Washington
Examiner’s website. Ms. Pileggi’s complaint says only that
she went to the Washington Examiner’s website, independently
of the newsletter, and while there, had her viewing information
tracked and disclosed. Only those disclosures are the basis for
her lawsuit. Am. Compl. 7 13-24.

Subscribing to an e-newsletter that includes videos and
video links, by itself, is not enough to make someone a
“consumer” under the Video Privacy Act. Instead, the videos
for which viewing history is disclosed must be the same video
materials or services that the individual purchased, rented, or
subscribed to. Congress, in other words, did not protect every
person who sees a video somehow. Only those who purchase,
rent, or subscribe to a video service are protected, and it is only
to those same videos that the statute’s privacy protections
attach. See 

(a)(2), (a)(3) & (b). Because the
newsletter in no way connected Ms. Pileggi to a relevant video,
we have no opportunity to address what kinds of connections
are required between a product like a newsletter and a video for
a cause of action under the Video Privacy Act to arise.

C

Washington Newspaper advances three additional
arguments for why Ms. Pileggi has failed to state a claim: (1)
Washington Newspaper is not a “video tape service provider”
because its short online videos are not “similar” to the longer
content of most video cassette tapes in 1988; (2) Ms. Pileggi is
not a “subscriber” because she did not pay for the e- newsletter;
and (3) Washington Newspaper did not knowingly disclose
Ms. Pileggi’s private information to Meta.

Because Ms. Pileggi’s complaint does not plausibly allege
that she is a “consumer” protected by the Video Privacy Act,
30

the district court properly dismissed the complaint for failure
to state a claim. Given that, we need not address Washington
Newspaper’s additional arguments.

IV

For the foregoing reasons, the district court’s judgment

dismissing Ms. Pileggi’s complaint for failure to state a claim
is affirmed.

So ordered.
RANDOLPH, Senior Circuit Judge, concurring:

The Video Privacy Protection Act, 

, is a
1988 law “prohibit[ing] video stores” from divulging their
customers’ “video tape” viewing histories.’ S. Rep. No. 100-
599, at 6-7 (1988). The VPPA is expressly limited to
“consumer[s]” of a “video tape service provider.” 

(b)(1). My colleagues hold that plaintiff Nicole Pileggi is
not such a “consumer,” and therefore cannot recover damages
from the Washington Examiner. I join their opinion.

But there is also a straighter path to the same ultimate
result: the Washington Examiner is not a “video tape service
provider.” Technology has overtaken this federal statute and has
rendered it largely obsolete. The VPPA addressed a different
problem in a different time. If the statute needs updating, that is
Congress’s work to do, not ours.

The VPPA imposes liability on “video tape service
provider[s],” defined as businesses transacting in “prerecorded
video cassette tapes or similar audio visual materials.” Jd.
§ 2710(a)(4). These terms are not further explained, but since
the Examiner’s short online videos are unambiguously not
“prerecorded video cassette tapes,” Pileggi can succeed only if
the videos are “similar audio visual materials.” And since the
Examiner’s videos are certainly “audio visual materials,” the
key question is whether they are “similar” to “prerecorded video
cassette tapes.”

" As the majority notes, see Majority Op. 3, the VPPA was a response
to an article in the City Paper summarizing then-Supreme Court
nominee Judge Robert H. Bork’s video tape rental history. The
summary showed that Judge Bork had a weakness for Hitchcock
movies and other classics. For a retrospective on the controversy by
the reporter who first published Judge Bork’s movie habits—and who
claims he still has the full and unpublished movie list—see Michael
Dolan, Borking Around, The New Republic (Dec. 20, 2012).
2

“Similar” cannot mean “other.” The VPPA’s use of
“similar” requires something more than a vague resemblance
between the videos at issue in this case and a “prerecorded video
cassette tape[].” See, e.g., Similar, Webster’s New World
Dictionary (3d ed. 1988) (defining “similar” as “nearly but not
exactly the same or alike; having a resemblance”); Similar,
Black’s Law Dictionary (Sth ed. 1979) (defining similar as
“Injearly corresponding; resembling in many respects”). A
related section of the VPPA, § 2710(b)(2)(D)(ii), highlights this
difference. That section specifically limits the use of marketing
data relating to “any video tapes or other audio visual material.”
Id. (emphasis added). Note the contrast between
§ 2710(b)(2)(D)(ii)’s expansive phraseology of “any” and
“other,” compared with § 2710(a)(4)’s more circumscribed
language of “prerecorded video cassette tapes or similar audio
visual materials.” Had Congress also said “other audio visual
materials” in § 2710(a)(4), id. (emphasis added), “other” would
serve as a catch-all for every potential type of video content. In
that world, the Examiner’s video clips would be covered. But
Congress did not enact that statute.

Two years ago, the Supreme Court faced an analogous
problem in Delaware v. Pennsylvania, 

 (2023), a
case about the meaning of the phrase “money order . . . or other
similar written instrument.” /d. at 123 (emphasis added)
(quoting 

(1)). The unanimous Court
“determine[d] what ‘similar’ entail[ed] in light of the [statute’s]
‘text and context,’ not in the abstract.” Jd. (citation omitted)
(second excerpt quoting Sw. Airlines Co. v. Saxon, 

 (2022)). The Court then identified the relevant “text and
context” by looking to the principal term (“money order’””)—not
Congress’s catch-all language (“similar written
instrument”)}—and explained that “similar’ was defined by
reference to the “function and operation” of money orders. Id.
at 128.
3

Applying that methodology to the VPPA, the Examiner is
not a “video tape service provider.” The “function and
operation” of a “prerecorded video cassette tape[]” bear little
similarity to those of a short online video clip. Pre-Internet users
obtained a physical object when they purchased or rented a
video cassette tape; modern audiences click on a link and
receive a stream of ones and zeros in response. The two formats
plainly do not “operate in the same manner.” Jd. at 127.
Moreover, the “function[s]” of a brief informational clip and a
feature-length movie are entirely different. An online news clip
and a VHS rental may both be videos at some high level of
generality, but the VPPA’s statutory language forecloses such a
broad-brush approach.

Statutory context also weighs in favor of limiting the VPPA
to physical materials. As the majority notes, “the heading of a
section” can shed light on the “meaning” of a statute. Majority
Op. 20 (quoting Dubin v. United States, 

(2023)). The heading of § 2710 is “Wrongful disclosure of video
tape rental or sale records”; likewise, the heading of § 2710(b)
is “Video Tape Rental and Sale Records.” While the majority
emphasizes the word “video,” these titles also demonstrate
Congress’s focus on “video tape[s],” tangible objects which can
be “rent[ed]” or put up for “sale.”

This reading is further supported by contemporaneous
evidence from Congress. In the only discussion of the term
“video tape service provider” anywhere in the legislative
history, the VPPA’s Senate committee report explains that the
phrase encompasses “similar audio visual materials, such as
laser disks, open-reel movies, or CDI [compact disc]
technology.” S. Rep. No. 100-599, at 12 (emphasis added). All
three listed examples of “similar” materials are physical objects:
laser and compact discs encode data in an optical disc, and
“open-reel movies” use magnetic tape for data storage. They are
4

tangible objects which can be held, stored, rented, or sold. And
that makes sense, because the VPPA was principally designed
to target “video stores” like the one that leaked Judge Bork’s
rental history. Jd. at 7.

Limiting “video tape service provider” in this fashion would
avoid the parade of horribles the majority offers and would allay
the majority’s fear that the VPPA would sweep in all websites.
See Majority Op. 21-23. Unless those websites engage in the
specific conduct at the heart of the VPPA—transactions in
physical audio visual media—they face no risk of liability.

The Internet was in its infancy in 1988, and Congress would
have needed remarkable oracular powers to have included
language about online videos in the VPPA. Congress’s failure
to foresee technological change, however, is not a reason to
extend the statute by judicial fiat. Instead, the proper inference
is that “similar[ity]” to a “prerecorded video cassette tape[]’’
entails the type of audio visual materials that Congress did
contemplate: physical data formats like cassette tapes, laser
discs, compact discs, and magnetic tape machines. In today’s
digital world, those analog mediums have no analogue medium.