Websites Deemed 'Place Of Public Accommodation' Under The ADA; Expects Lots Of Sites To Get Sued

from the or-move dept

Professor Eric Goldman is quite reasonably worried about a recent ruling in a case the National Assocation of the Deaf brought against Netflix, claiming it was a violation of the Americans with Disabilities Act (ADA) to not have closed captioning. Never mind the fact that this flies in the face of a ton of precedent (none of which is cited). Goldman is reasonably concerned that this could have a massive impact on all kinds of websites:

If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

The key issue is whether or not a website is a place of public accommodation, which this court ruled it was, despite plenty of other rulings that went the other way:

The most crucial ruling is where the court says that a website qualifies as a “place of public accommodation.” The court deviated from–and, incredibly, didn’t cite to–a nearly unbroken line of precedent rejecting that conclusion. I don’t have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target’s obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn’t had much of an impact on Internet litigation over the past 6 years.

Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily-criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge’s ruling.

Of course, some have pointed out in response that this isn’t that big of a deal, because of the ADA’s “undue hardship” clause, which lets companies avoid accommodating the ADA if it presents an “undue hardship.” While that may limit the most egregious cases, it still creates a ton of problems. The “undue hardship” clause is only a defense, and it’s judged on a case-by-case basis, where the standards are incredibly vague and it has been described as a high bar to meet. Plus, the entire burden is put on the company (in this case, website), so there will likely be tons of lawsuits against websites until the actual standard for what counts as “undue hardship” is cleared up.

Even more insane in all of this is the one issue that Goldman only briefly alluded to in his piece: the requirement for closed captioning presents a massive potential copyright issue. We’ve seen people get in trouble for providing subtitles already. So suddenly this creates a damned if you do, damned if you don’t situation: provide closed captioning and get sued for copyright infringement, or don’t and get sued for ADA violations. Is copyright infringement (and a possible lawsuit?) an “undue hardship?” Who knows.

Of course, the paragraph above points out another issue with this ruling: that this is really an issue for the movie studios, not Netflix. Blaming Netflix is blaming the wrong party. Of course, the judge didn’t seem to care about that. When Netflix raised that issue, the judge said that “this argument lacks traction” because the judge has already decided that Netflix is a place of public accommodation, and that’s all that matters.

Hopefully Netflix successfully appeals this ruling. Otherwise, we’re about to be in for a whole bunch of ADA claims against websites until the “boundaries” are worked out. For lots of small websites, such lawsuits could be extremely expensive and damaging.

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Companies: netflix

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Comments on “Websites Deemed 'Place Of Public Accommodation' Under The ADA; Expects Lots Of Sites To Get Sued”

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91 Comments
E. Zachary Knight (profile) says:

Re: this is kind of tough

How is it Netflix’s fault? Here is a hypothetical conversation between Netflix and a movie studio:

Netflix: Hey movie company. Our customers want closed captioning on all your movies. Will you give us permission to turn that on?
Movie Exec: What?!? That would cut into our DVD’s selling points. If people could watch the movie online with closed captioning, they wouldn’t need to buy the DVD. That would kill our revenue. Of course you cannot turn them on.
Netflix: It’s what our customers want. Maybe we will do it anyway.
Movie Exec: If you do that, we will sue you out of existence for copyright infringement.

See how that works? This is not in Netflix’s ability. It is out of their hands.

Designerfx (profile) says:

Re: Re: this is kind of tough

They can add closed captions with zero required from the studios. Just find a way to run it through google’s live captioning equivalent.

Movie studios don’t really hold any authority over captioning if they don’t provide it, as far as I’ve ever heard. Or am I wrong? Netflix could even do this citing support of the ADA without a lawsuit.

E. Zachary Knight (profile) says:

Re: Re: Re: this is kind of tough

It is copyright infringement to provide captions for films and tv shows without the permission of the copyright holder. So no, Netflix cannot do it and the ADA is not a defense for it. Even if Netflix eventually won the copyright infringement lawsuit using the ADA as a defense, they would have spent millions of unnecessary dollars and many unnecessary years in court to do so. Potentially bankrupting them. If they do end up surviving the lawsuit, they will not survive the withdrawal of uncooperative movie and television studios.

Anonymous Coward says:

Re: Re: Re:2 this is kind of tough

Sounds like a movie studios wet dream if the ruling stands.

You want captioning? No we don’t provide that.
What? You can’t broadcast movies without it? Well I guess you’ll just have to close down, then won’t you.

Well, unless you’d like to by our new captioning license for your movies. It won’t cost you much. Really, you can trust us.

Jason (profile) says:

Re: Re: Re:3 this is kind of tough

You want captioning? No we don’t provide that.
What? You can’t broadcast movies without it? Well I guess you’ll just have to close down, then won’t you.

Well, unless you’d like to by our new captioning license for your movies. It won’t cost you much. Really, you can trust us.

The studios would never license captions. Their only mission is to destroy distributor competition. Your first scenario is correct.

the other Jason says:

Re: Re: this is kind of tough

See how a hypothetical conversation is, on its face, a strawman argument.

If NetFlix can document that this kind of conversation happened, then they’ve at least taken a step to mitigate their liability. If not, then yeah, they share the responsibility.

A lot of ADA law swings on what a reasonable accommodation is and on what an undue burden is. That’s also why a lot of what Professor Goldman Says is HIGHLY reactionary – not bad, and definitely sparks some worthwhile discussion, but very reactionary.

Travis (profile) says:

Re: this is kind of tough

I agree with you 100%. I am actually deaf myself, but don’t agree with suing netflix for this. That being said, DMCA and copyright are NOT a deaf person’s friend. If we can’t get a movie with subtitles, we either have to;

Pirate a movie from another source and add subtitles or
Break the digital locks to turn the movie into an AVI file and then add subtitles

And of course, we don’t have too much trouble finding subtitles… yet. I dread the day when THOSE get driven underground. All because some asshats who don’t want to give us decent subtitling want to take away the ability to do so for ourselves as well.

Lord Binky says:

Re: Re:

That’s exactly my thought process.. Google just needs to bring suit against all the major theater chains for violation of the ADA by not providing subtitles on all their movies. They already had to acommidate wheelchairs so they’ll have to do the closed caption as well. That would be a good starting point to hold over the theaters and therefore the movie studios head for negotiating decent terms.

Any Mouse (profile) says:

Re: Re: Re:

Yes, my theater has this, and I love it. When I can use it, since it’s in the top row seats where I can’t get my wheelchair, but hey, we all make due in some way.

What it is, there are small screens that flip up at the seats and catch a secondary projection from behind that adds in the subtitling. Can’t recall for the life of me what they’re calling it.

WysiWyg (profile) says:

Re: Re: Re: Re:

Wow. That’s a LOT of trouble to go through, just so the general audience don’t have to risk reading something. Yikes.

Now I generally hate the Swedish subtitles that they show on movies in Sweden, since they seem to hire drunk 12-yearsolds to operate Google Translate instead of actual translators for the subtitles, but in general they are also fairly easy to just ignore. Well, unless you have the bad luck of ending up watching a 3D-movie. For some reason they have decided to place the subtitles seemingly about one foot in front of you. Hello headache!

TtfnJohn (profile) says:

Re: Hypocrisy!

You might want to re-read the post because it’s about closed captioning which doesn’t do much for the blind who can’t see the screen anyway but it’s an association that that represents deaf people in the United States that brought the suit.

What Mike is pointing out is the cost of compliance with this ruling and, often, the near impossibility of it as the site owner could very well land in a copyright infringement lawsuit should they provide closed captioning in many cases should the rights owner not have provided it to the site.

This is a case of dueling precedence where copyright may overrule the need for sites to provide closed captioning. I may not have said that well but one requirement may smack up against the brick walls of another one.

This sort of thing gets nothing done for the deaf or for site owners.

As for blind people there are long standing ways built into HTML, PHP and so on that take care of telling the blind person what’s on the screen and, in many cases, reading it to them.

el_segfaulto (profile) says:

I hate this too

But…if you design your site correctly and do NOT use Flash then it should already be completely compliant. I work for the government and a fair chunk of my time is spent making sure my sites are in compliance, problem is that I’m a developer and not a designer…anyway if other people want I can link to some of the tools that I use, including the ones that I wrote myself.

With that said, I am adamantly against legislation like this.

Anonymous Coward says:

Flash

Could every website using Flash have to redesign their sites for browsers that read the screen?

I don’t agree with a government mandate, but sites should be implementing graceful degradation or progressive enhancement anyway. In my opinion a site that won’t work without Flash is already broken. It’s sad how many major web sites just show blank pages or broken links to users with unexpected configurations?it seems one is lucky to even get a ?this site isn’t compatible with your browser? message.

(Thanks, Mike, for making this site functional without Javascript.)

Rich Kulawiec (profile) says:

Re: Flash

One of the most useful exercises for any web designer is to try out their own site in a text-only browser (e.g., w3m). If its basic functions, including navigation, still work, then that’s a good sign. But if it’s not even possible to read the site’s home page, then there are serious problems.

This doesn’t mean that sites can’t have advanced features that depend on bells-and-whistles: they can. But it does mean that basic site functionality shouldn’t rely on them.

Rekrul says:

Re: Re: Flash

A text-only browser? You’re lucky if most sites still work on a browser from a couple years ago.

Until recently, I was using an older system with Firefox 2.0 and there were tons of sites that wouldn’t display correctly. YouTube pages didn’t display the thumbnails. Other sites were so messed up that if you didn’t know where to look for it, some of the content was hidden.

A Guy (profile) says:

Really tough one

On one hand, this will require a lot of redesign if it’s allowed to stand.

On the other hand, think of the implications for the data mining companies. The ADA may be exactly what we need to get data mining companies away from insurance companies and future employers.

On balance, it may be worth it.

http://www.forbes.com/sites/kashmirhill/2012/06/15/data-mining-ceo-says-he-pays-for-burgers-in-cash-to-avoid-junk-food-purchases-being-tracked/

A Guy (profile) says:

Re: Re: Re:2 Really tough one

1) Netflix would have to create or license some close captioned streams to go with their offerings. If they have a decent contract that allows them latitude in making changes to comply with federal laws that shouldn’t be too high a barrier.

2) To me, java seems like a good place to start for implementing some speech to text for youtube, netflix, or whoever. I’m betting youtube could even require users to do it in their TOS. These things don’t have to be perfect. I often turn on the news with low volume and CC while I’m busy. The CC are never exactly right. Sometimes, it’s not even close to right. If TV is any precedent, all you have to do is make a minimal effort.

3) IANAL and I don’t have more than a passing familiarity with ADA law. Don’t companies usually have a reasonable amount of time to implement after being sued? I don’t think you have to close down your store immediately because you forgot to paint in a handicapped spot.

4) If ADA law is going to be enforced on the internet, how long will it be for companies who see you visited a page devoted to a drug, medical condition, eating habits, or other things that may be covered under ADA to start watching their step? If that data mining executive is worried about his insurance finding out about his eating habits, maybe it indicates they’re looking to target potentially obese people. I have also heard stories that some companies sell the fact you looked at pages concerning STD medications to HR departments.

Personally, I’m in decent health but who knows what could happen tomorrow? The whole practice is creepy.

ComputerAddict (profile) says:

Re: Re: Re:3 Really tough one

1) There is no way Netflix got a decent contract from any studio. Hence why others have been sued for user-generated captions.

2) Java seems like a horrible idea for the web. The whole Premise of HTML5 is to incorporate higher level programming and media so we don’t have to keep downloading plugins and runtime environments. The web is trying to move to a unified language, not segmented.

3) Also IANAL, but I am a junior architect and have read large portions of the “ADA Standards for Accessible Design” and have had to apply it in almost daily life (It makes restaurant conversations really boring as you talk to colleagues about how their toilet paper holders in their bathrooms are mounted too high.) ADA Compliance typically is required for a certificate of occupancy, older locations are grandfathered until the building / area undergoes renovation. But if you were suppose to meet a certain code when you opened, yes they can shut you down that day if they want to. Similarly to if you violate a Fire Code.

4) Data Mining and ADA Regulations have nothing to do with each other. ADA doesn’t mine data, ADA doesn’t have logs of visits, that would be the webhost / domain register, and really is a completely separate topic.

A Guy (profile) says:

Re: Re: Re:4 Really tough one

“4) Data Mining and ADA Regulations have nothing to do with each other. ADA doesn’t mine data, ADA doesn’t have logs of visits, that would be the webhost / domain register, and really is a completely separate topic.”

The ADA protects those with disabilities/medical conditions from discrimination in hiring, and other places. If certain data can’t be sold to certain people, it may go a long way toward compliance. If you think these are separate topics, you don’t understand how data mining is done.

Beta (profile) says:

Re: Re: Re:3 Really tough one

1) That is not “some redesign”, that is a radical change of business model that would be legally impossible without the cooperation of third parties, and in any case could easily change a viable, innovative business into a non-starter. Calling that “some redesign” is like calling aggressive chemotherapy “an adjustment of diet”.

2) Ah, you want a free, open-source speech-to-text library for Java. Built and maintained by Somebody Else.

3) If the implementation is impossible or would break the business (as is often the case with ADA), having “a reasonable time to implement” isn’t worth much.

4) What?

A Guy (profile) says:

Re: Re: Re:4 Really tough one

“1) That is not “some redesign”, that is a radical change of business model that would be legally impossible without the cooperation of third parties, and in any case could easily change a viable, innovative business into a non-starter. Calling that “some redesign” is like calling aggressive chemotherapy “an adjustment of diet”.”

Would it be impossible? I haven’t seen their contracts but if netflix doesn’t include a clause that gives them latitude to comply with all applicable laws, they should really have a talk with the lawyers that told them the contracts were okay to sign in the first place. :/

“2) Ah, you want a free, open-source speech-to-text library for Java. Built and maintained by Somebody Else.”

I wouldn’t mind helping maintain it. However, I don’t currently have any use for it from a business or user standpoint, so it probably would be someone else.

GMacGuffin says:

Friggin' ADA Trolls Rejoice

Hey, I’m all about access and such, but I’m sick of ADA trolls overreaching where’s not necessary or practical. E.g., all the corner store parking in my hood. One corner store at a busy fustercluck 5-way intersection now has .8 of a parking space, since a local ADA troll forced them to put a disabled spot there. I drive by there daily and have never once seen it used. Sometimes reality should step in…

Dreddsnik says:

” For lots of small websites, such lawsuits could be extremely expensive and damaging. “

And the real reason shows itself. Though NetFlix isn’t so small anymore it is a thorn in the industries side. It successfully competes with free and they have been trying for a very long time to cripple it. Netflix may survive this due to their size, but smaller sites and startups ( competition ) won’t even make it through the door.
Anything that can wreck Netflix or any other similar service is a win in the industry’s misguided minds.

Andrew F (profile) says:

Ugh ...

Of course, the paragraph above points out another issue with this ruling: that this is really an issue for the movie studios, not Netflix. Blaming Netflix is blaming the wrong party. Of course, the judge didn’t seem to care about that. When Netflix raised that issue, the judge said that “this argument lacks traction” because the judge has already decided that Netflix is a place of public accommodation, and that’s all that matters.

But that’s actually super-relevant to whether Netflix is a place of public accommodation! With physical places, the store owner owns the entire premises, and therefore has the legal right to make changes to the premises, like adding a ramp. But websites don’t always “own” all of the content that they’re displaying — whether it’s the Facebook share buttons, third-party ads, or the movies being shown on Netflix. They simply don’t have the legal right to add “ramps”.

Note that this is distinct from the “undue hardship” issue. Undue hardship is about whether adding ramps would be feasible — e.g. you don’t add a wheelchair ramp to your treehouse. Here, we’re discussing the basic legal right to do something.

That key distinction is a HUGE difference between physical and virtual places of public accommodation, and evidence that there’s no way Congress intended for the ADA to include the latter.

Andrew F (profile) says:

Re: Blind Sites

They have. See Access Now v. Southwest Airlines, and National Federation of the Blind v. Target.

The basic argument is that blind use specialized browsers that read web-pages aloud. When websites use images without alt-text however, or use flash or layout the website poorly, those browsers don’t work. So the blind sued to compel the use of alt-text.

Darren (profile) says:

As a from-birth-hard-of-hearing person, I’m glad to see some action in forcing subtitles. I use lip reading in conjunction with sound to understand conversations. I don’t watch TV/DVDs without captioning (and hate the delayed captioning on some shows). However, I don’t think Netflix is the right company to sue, it should be the media companies in control of the distribution of the product that don’t provide: closed captioning over the air (like AMC’s first season of Walking Dead.), words to songs that are played (a very small minority do), or closed captioning on DVDs (in reality a small minority don’t and usually older DVDs).
There ought be an exception in copyright law to allow companies, if not the producers of product then third parties, the opportunity comply with ADA instead a complicated mess of rights and revenue streams.

relghuar says:

"screw you"...

Hell, I’m in a commenting mood tonight.
A couple discrimination arguments against deaf people come to mind, like “you’re one of those hand-waving idiots”, “look at him, he can’t even hear us making fun of him”,… I’d just like to add a new one 😉 “Screw you, you’re one of those suckers screwing our websites!” …..

Anonymous Coward says:

Hard even ignoring video

Section 508 compliance is difficult to ensure even when not dealing with video.I know because it is part of my job as an application developer for state agencies so I am intimately familar with the rules (some of which there is disagreement over whether they might actually make sites worse for modern accessibility tools but they are written in law so don’t expect them to change to keep pace with tech). And guess what we do leave out functionality because we can’t always implement it in a way that we can be sure is compliant. And all I have to worry about is a defect coming back during testing I can’t imagine how much worse it will be when one defect that doesn’t get caught can result in a lawsuit.

Ron says:

ADA

I for one have always had compassion and empathy for the disabled, but lately the ADA compliance issue has gotten absurd.

In fact I envision Bitter resentful individuals that feel if they can’t see it neither can we and the world should not enjoy anything they can not.

To the disabled, I have a news flash for you. Just because you can’t hear, see, are colorblind whatever, is not justification for destroying or censoring artistic expression in the world.

YOU’RE DISABLED, I agree that sucks, but get over it and compromise with us. I would be more than happy to add a link to every website I build offering a black and white (or whatever color s you choose, text only, easily navigable website version, in order to accommodate you.
But if you think you are going to impose your suffering on me??? You have another thing coming!

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