Two Court Rulings Completely Disagree With Each Other Over Whether Websites Need To Comply With Americans With Disabilities Act

from the waiting-for-the-supreme-court dept

On March 19th, there was a ruling [pdf] in a case in a federal district court in Vermont, brought by the National Federation for the Blind against Scribd, saying that the Americans with Disabilities Act (ADA) applied to the internet, and thus Scribd had to comply with the ADA. The specific concern is whether or not a website is a "place of public accommodation." Three years ago there was a similar ruling against Netflix (also brought by the National Federation for the Blind), which we noted had some troubling aspects to it. Since then, there have been a number of cases that have gone the other way. And, indeed, just this week the 9th Circuit appeals court upheld a lower court ruling [pdf] saying that Netflix does not need to comply with the ADA.

The 9th Circuit ruling made quick work of things, noting that it has ruled on this issue before and websites are not places of public accommodation:
We have previously interpreted the statutory term “place of public accommodation” to require “some connection between the good or service complained of and an actual physical place.” ... Because Netflix’s services are not connected to any “actual, physical place[],” Netflix is not subject to the ADA.
The court in the Scribd, case, however, sees things differently (and, Vermont is a long way from the 9th Circuit, so those precedents do not apply in Vermont). The Vermont court is well aware that the 9th Circuit -- and others -- don't think websites are places of public accommodation:
On the narrow end, the Ninth, Third, and Sixth Circuits each considered ADA claims brought by an employee who received benefits through his or her employer that were issued by a third party insurance company. All three courts held that Title III did not apply because there was not a sufficient connection between the discrimination the plaintiffs alleged and a physical place. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (explaining that “some connection between the good or service complained of and an actual physical place is required”); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998) (holding “public accommodation” and the list of examples in the statute were not ambiguous and did not refer to non-physical access); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir. 1997) (en banc) (noting that “a public accommodation is a physical place” and a benefit plan offered by an employer is not a good offered by a place of public accommodation).
However, the Vermont court also notes that other Circuits have interpreted the ADA more broadly:
On the broad end, other circuit courts have read Title III to apply even in the absence of some connection to a physical place. In Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994), the First Circuit explained that public accommodations are not limited to physical structures. The court reasoned that by including “travel service” on the list of examples in the definition, Congress clearly contemplated that “service establishments” could include providers of services that do not require a person to physically enter a structure or site but may instead conduct their business by telephone or correspondence. Id. It would be “absurd” to conclude people who enter an office to purchase a service are protected by the ADA but people who purchase the same service over the telephone or by mail are not.
It lists a few other examples as well -- including the Netflix case from 2012 -- and then notes: "Clearly there is more than one reasonable interpretation of the language at issue here." And thus, it comes down on the side of saying the ADA should apply, noting how important a law it was in stopping discrimination. It leans heavily on that 2012 ruling against Netflix:
Taking into account all of the relevant background information explored above, the Court finds Judge Ponsor’s reasoning in Netflix persuasive. The Internet is central to every aspect of the “economic and social mainstream of American life.” PGA Tour, 532 U.S. at 675. In such a society, “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Netflix, 869 F. Supp. 2d at 200 (quoting Carparts, 37 F.3d at 20).

The Court must therefore determine whether the services Scribd offers properly fall within any of the general categories of public accommodations listed in the statute. Construing the list of categories liberally, Plaintiffs have persuasively argued that Scribd’s services fall within at least one of the following categories: “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” a “library,” a “gallery,” or a “place of public display or collection.” ... Therefore, the Court finds that Plaintiffs have sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation. Accordingly, Scribd’s motion to dismiss is denied.
With so many conflicting rulings, it sounds like this is a situation where either Congress needs to update the ADA to clarify, or the Supreme Court needs to step in. And while we're very much against discrimination, broadly applying the ADA to websites would have some serious consequences, going well beyond what the law is supposed to be doing. We're already seeing folks like Team Prenda abusing the ADA to shake down small physical shops -- and you can bet that if the law is determined to apply widely to websites, they'll quickly return to their old ways of shaking down folks online as well. Yes, websites should strive to be created to accommodate people with different issues, but using a law that was clearly designed for physical retail stores, and saying it needs to automatically apply to all websites seems like a bad way to do this.


Filed Under: 9th circuit, ada, americans with disabilities act, internet, place of public accommodation, vermont, websites
Companies: netflix, scribd


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  • icon
    That One Guy (profile), 6 Apr 2015 @ 2:17am

    But wait, it gets worse

    It's not quite so easy as the court may seem to think it is to provide equal service to those with disabilities, thanks to everyone's favorite field of law: Copyright.

    For example, say you're Netflix, or some other video/movie/tv streaming service, and you need to provide equal treatment for the hearing impaired. Seems easy enough right, just slap in some subtitles and there you go.

    Yeah, about that...

    If something as simple as providing subtitles can lead to legal fights, while it's nice and all for the judge to say that sites and services need to offer equal treatment to those with disabilities, sometimes the laws can make that a prohibitively expensive and/or difficult matter in practice, something that I would hope the judges take into account.

    When one law makes it ridiculously difficult to follow another one, glibly telling a company that they need to follow the latter, while not taking into account the effects of the former, is going to cause all sorts of problems.

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    • icon
      Gumnos (profile), 6 Apr 2015 @ 4:38am

      Re: But wait, it gets worse

      Intermediaries just need some sort of Section 230 protection, passing the responsibility up-stream. Make the video-providers responsible for captioning (and providing replacement DVDs and stream-sources). This is notably less burdensome as they likely have access to the scripts used to create the media too.

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      • icon
        Beta (profile), 6 Apr 2015 @ 8:10am

        Re: Re: But wait, it gets worse

        You want to make it illegal to make video without subtitles (and/or audio description for the blind)? You want to require creators to provide such addenda for their works, even works made years ago, even creators who are unknown, living abroad, or dead?

        Well, that would be about as logical as a lot of other law. Copyright law is full of such charming eccentricities, and the whole ADA seems to be founded on the premise that no shop at all is better than a shop without a wheelchair ramp, which I've never quite understood.

        But I have an alternative suggestion; as long as we're handing out exemptions from the ADA, let's just give a general one to non-physical services.

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        • icon
          Gumnos (profile), 6 Apr 2015 @ 8:48am

          Re: But wait, it gets worse

          See my other comment here about thresholding the requirement as is done with other laws. Likewise, pre-enactment works are usually grandfathered in as exempt. This combination would limit both audience and the scope to larger sites and post-enactment content, a fairly reasonable demand for equal access.

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          • identicon
            JEDIDIAH, 6 Apr 2015 @ 12:10pm

            Re: Re: But wait, it gets worse

            The really stupid part of this is that these captions are already available in some form that Netflix could potentially use precisely because of the ADA.

            If you're running your own homemade media server based solution, you could easily have a more robust setup in this regard than Netflix.

            It's pretty pervasive but easy to miss if you don't bother to look. Clearly many of the "able bodied" haven't bothered looking.

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          • icon
            Beta (profile), 7 Apr 2015 @ 4:04pm

            Re: Re: But wait, it gets worse

            A "reasonable demand"? Quite apart from unintended consequences, additional legal complications that discourage young people from going into video-making, and arguments about the free market and freedom of expression, that phrase is just weird in this context.

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            • icon
              Gumnos (profile), 7 Apr 2015 @ 4:26pm

              Re: But wait, it gets worse

              See my “Bakeries and websites" conversation above. “Quite apart from unintended consequences, additional legal complications that discourage young religious bakers from going into baked-good-making, and arguments about the free market and freedom of [expression or religion], that phrase is just weird in this context.” When minority groups are shut out of a business, the government needs to apply measures equally: whether allowing websites and businesses such as bakeries the option to discriminate (the leaning of my libertarian side), or requiring websites and business to treat visitors equally (the leaning of my Christian side, contrary to popular media brouhaha on the matter).

              See also my thread about minimum thresholds—an individual “young [person]” or small Mom & Pop business wouldn't be subject to such regulations until they met a minimum size/income, keeping them fairly “reasonable demands”.

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        • icon
          Sheogorath (profile), 6 Apr 2015 @ 7:43pm

          Re: Re: Re: But wait, it gets worse

          [T]he whole ADA seems to be founded on the premise that no shop at all is better than a shop without a wheelchair ramp, which I've never quite understood.
          If there is no ramp at the shop, then wheelchair users can't access it, making them dependent on others to do their shopping for them, denying them the ability to select their purchases for themselves. Whereas if there's no shop at all, then nobody gets to go shopping, making everyone equal. Get it now?

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    • identicon
      Bengie, 6 Apr 2015 @ 5:23am

      Re: But wait, it gets worse

      1) Create sub-titles yourself
      2) Get sued
      3) Don't fight back
      4) Get a ruling saying you can't make your own sub-titles
      5) Claim that following ADA will cause you to break other laws
      6) ???
      7) Profit?

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    • identicon
      Zonker, 6 Apr 2015 @ 12:30pm

      Re: But wait, it gets worse

      If Netflix has to offer subtitles on movies that don't already have them, then movie theaters (an actual physical place) would have to do so too. Yet a quick search shows that AMC Theaters, for one, does not do this (they specifically state that not all movies are subtitled and to look for the closed caption symbol to find out if it is).

      It seems at least AMC Theaters puts the burden on the movie makers to perform the closed captioning, so one would expect Netflix should be able do the same.

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  • identicon
    Anonymous Coward, 6 Apr 2015 @ 3:58am

    Good web site design makes a lot of this moot

    A heck of a lot of modern web sites (including TD's store) are bloated, horrible monstrosities brimming with superfluous Javascript and useless graphics.

    Minimalist web design -- that is, GOOD web design -- is based nearly entirely on text. The highly competent web designers who know and practice this test their sites with text-only browsers on dialup-speed connections to make sure that they're not only usable on congested or slow networks, but that they're usable by people who have scripting/graphics/ads turned off...or, in the case of the blind, can't see them.

    I do. It's not hard. And I'm not even really a web designer. It's simply not that hard to craft sites that are usable for everyone because it means NOT doing stupid, wasteful things.

    That of course won't make all the litigation go away. But making a good-faith effort is a great idea anyway, and everyone should be doing it.

    So go get a copy of w3m or links and look at your own web site. Is it readable? Is it navigable? If not, then you have work to do.

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    • identicon
      Rich, 6 Apr 2015 @ 7:09am

      Re: Good web site design makes a lot of this moot

      None of which applies to the complaint with Netflix.

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      • identicon
        Anonymous Coward, 6 Apr 2015 @ 7:50am

        Re: Re: Good web site design makes a lot of this moot

        However, much of it does apply to the theoretical burdens of applying ADA to more general purpose websites. Like GP, I default block most of the bloat on modern sites and I get annoyed when I encounter a site which is needlessly broken by it. I get that some really fancy "Web 2.0" sites have as their primary purpose something that can't be done using only classic HTML+CSS, but I see a lot of sites that use Javascript, Flash, cross-site embeds, and other junk to design a page that would work fine, and often run better, if they didn't use all that bloat.

        I fear the consequences of applying ADA to the web, but I fear it because ADA is badly written and likely to be badly applied, not because I think it's too hard to write an accessible site. I don't expect an accessible site to be experience equivalent to the flashy site. I only expect that the accessible site be sufficiently machine readable that a screen reader does not fail horribly trying to present it.

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        • icon
          madasahatter (profile), 6 Apr 2015 @ 4:53pm

          Re: Re: Re: Good web site design makes a lot of this moot

          To me the basic problem with the ADA is the fact that what is a reasonable accommodation for one type of disability may often be harmful to another type of disability. Think of the wheel chair ramps on sidewalks; the blind used to use the 4" curb as a warning they were about to step into a street.

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  • icon
    That Anonymous Coward (profile), 6 Apr 2015 @ 4:08am

    So perhaps it would be best to use Team Pretenda as something, other than an example of why we have lawyer jokes.

    If they are using it, it is broken. No amount of hoping that somehow they will be reigned in will lead to anything, we need to find the will to actually deal with the very real problems with the law and repair them. They are extracting misery & cash (and even killing businesses in the process) all while lining their pockets by abusing a system that everyone is terrified to fix because of the bad soundbites.

    The ADA is important, and fixing it should be a top priority. We knew there was a problem when, in the most entertaining example, the copies of the movie "Up" were being made available to the public for rental lacking subtitles as the main character has hearing aids. The mindset was that disabled people needed to buy "full" copies of the movie to be included. The terrible fear of the movie industry that people would just make copies of the movies they if put out full featured discs for rental trumped the right of citizens to have reasonable access to the material. We've seen them holding the blind "hostage" by demanding laws block features the blind would benefit from, because ZOMG someone else might figure out a way to abuse it and cost us money. The disabled are just a bargaining chip, not a demographic they care to serve.

    We need serious reform of these things, despite them not offering great soundbites for politicians... we have fucking National Days for Vanilla and Chocolate Cupcakes but somehow fixing a law to require that subtitles be made available on all versions offered in the marketplace isn't even that important. Says something about the priorities of our leaders and about us not giving a shit about anything other than ourselves.

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  • icon
    Anon E. Mous (profile), 6 Apr 2015 @ 4:23am

    Watch for someone named Steele or Hansmeier to be looking for Craigslist lawyers to act as local counsel for ADA lawsuits in Vermont

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  • identicon
    Anonymous Coward, 6 Apr 2015 @ 4:44am

    Heres an idea, if two courts come up with opposing interpretations, the law is automatically rendered null and void, because there is no way of obeying it.

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    • icon
      nasch (profile), 6 Apr 2015 @ 11:53am

      Re:

      Heres an idea, if two courts come up with opposing interpretations, the law is automatically rendered null and void, because there is no way of obeying it.

      No, it just means obeying the law means different things in different jurisdictions. The Supreme Court is there to resolve such issues.

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  • icon
    afn29129 (profile), 6 Apr 2015 @ 4:57am

    Clearly..........

    "Clearly there is more than one reasonable interpretation of the language at issue here." That sentence right there tell me we are dealing with an activist judge who disagrees with law-as-written and is trying to legislate from the bench.

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    • icon
      Beta (profile), 6 Apr 2015 @ 9:50am

      Re: Clearly..........

      ...or a law that is outdated (or just badly written) and ought to be revised or repealed.

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    • icon
      nasch (profile), 6 Apr 2015 @ 12:30pm

      Re: Clearly..........

      "Clearly there is more than one reasonable interpretation of the language at issue here." That sentence right there tell me we are dealing with an activist judge who disagrees with law-as-written and is trying to legislate from the bench.

      You're saying there is no such thing as ambiguous language in a statute?

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  • identicon
    anony@gmail.com, 6 Apr 2015 @ 5:13am

    What?????

    This is rubbish the whole damn case. If subtitles are a legal necessity for movies then the movie industry as the manufacturer should be investing in them.

    No website should have any responsibility to the blind or the deaf, under any circumstances.

    Maybe netflix should put up a sign on their website, content only available for those that can consume it.

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    • icon
      BW (profile), 6 Apr 2015 @ 5:22am

      My daughter is deaf.

      She can "consume" their website if they would just do the right thing and use closed captioning. It doesn't cost much and it makes her lives and the lives of many other people better. I'm sorry if my daughter isn't important to you, but a lot of people love her - including me. Oh, and by the way - f**** you.

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      • icon
        Mike Masnick (profile), 6 Apr 2015 @ 5:51am

        Re: My daughter is deaf.

        She can "consume" their website if they would just do the right thing and use closed captioning. It doesn't cost much and it makes her lives and the lives of many other people better.

        I don't disagree with that. Netflix should do that if possible. But the real question is what about everyone else? What about the small one person/part-time hobby site? Should it be required to go to the same level of effort? The risk of someone just setting up a site for fun, and somehow failing to meet all of the qualifications of the ADA are very real.

        No one is saying that sites shouldn't strive to be as accessible as possible. The question is whether or not every website should be burdened by a law that was not written for websites and doesn't make sense for many such websites.

        I'm sorry if my daughter isn't important to you, but a lot of people love her - including me

        Did you really get that out of reading my article?

        Oh, and by the way - f**** you.

        Do you honestly think that's an appropriate response?

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        • icon
          Gumnos (profile), 6 Apr 2015 @ 6:40am

          Re: Re: My daughter is deaf.

          What about the small one person/part-time hobby site? Should it be required to go to the same level of effort? The risk of someone just setting up a site for fun, and somehow failing to meet all of the qualifications of the ADA are very real.

          I know that certain regulations don't apply until a business reaches a certain size. E.g.
          • ADA & Title VII of the Civil Rights Act of 1964 when a company has 15+ employees
          • Age Discrimination at 20+ employees
          • Family Medical Leave Act (at a 50-employee threshold)
          • massive SEC regulations when a company goes public
          • Fair Labor & Standards Act triggers at $500k gross receipts
          A similar threshold could absolve smaller sites from onerous development (though as a web-dev, creating an accessible site is good for SEO and broadening your audience/market, so it's good from a business sense too)

          See this article on various thresholds

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          • icon
            nasch (profile), 6 Apr 2015 @ 12:34pm

            Re: Re: Re: My daughter is deaf.

            YouTube is big, should they have to close caption all their videos? Or require users to caption videos before they're made public?

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            • icon
              Gumnos (profile), 6 Apr 2015 @ 1:06pm

              Re: My daughter is deaf.

              1. YouTube offers automatic captioning using voice-recognition that can be used. There are times it doesn't automatically caption things (see that link), but it's better than nothing.
              2. Also, as YouTube isn't creating the content but rather just acting as a delivery conduit for it, see my previous comment about pushing the responsibility upstream to the actual content-providers.

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              • icon
                BW (profile), 6 Apr 2015 @ 2:05pm

                thank you. being hard of hearing I was already aware

                But some deaf people may not be, so it bears repeating. The thing that puzzlese is, why is automatic captioning not available on some YouTube videos? Do they turn it off or what?

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                • icon
                  Gumnos (profile), 6 Apr 2015 @ 2:16pm

                  Re: thank you. being hard of hearing I was already aware

                  Based on the link in my previous comment, reasons can include
                  • the language in the video is not yet supported by automatic captions
                  • the video is too long
                  • the video has poor sound quality or contains speech that YouTube doesn't recognize
                  • there is a long period of silence at the beginning of the video
                  • there are multiple speakers whose speech overlaps
                  • or the person who posted the video intentionally disabled the captions

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                  • icon
                    BW (profile), 6 Apr 2015 @ 3:04pm

                    Re: Actually (IANAL) the ADA would not apply to these small businesses

                    And would not fine them anyway. This is a question of ignorance and ABUSE of the law. The poor small business owners can't know about everything, and so they don't know the ADA laws. Team Prenda knows the law but chooses to lie about how it works. The law itself is fine except in the case of the internet were most complex laws come to fail.

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                  • icon
                    Sheogorath (profile), 6 Apr 2015 @ 7:58pm

                    Re: Re: thank you. being hard of hearing I was already aware

                    You forgot one: the option to have videos subtitled isn't made obvious. Of course, that may no longer be true, but I have no way of knowing since I haven't had a YouTube account since opting out of Google+ when it was forced on users. Google Coercion: preventing free speech since 2013.

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                    • icon
                      nasch (profile), 6 Apr 2015 @ 8:51pm

                      Re: Re: Re: thank you. being hard of hearing I was already aware

                      Google Coercion: preventing free speech since 2013.

                      There's a difference between preventing free speech, and setting up rules for a web site that some people don't like. You are still free to speak, they just have no obligation to allow you to use their platform in whatever way you want.

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                      • icon
                        Gumnos (profile), 7 Apr 2015 @ 5:45am

                        Re: thank you. being hard of hearing I was already aware

                        You are still free to be gay, the bakery just has no obligation to allow you to use their baked-goods platform in whatever way you want.

                        Just seeing some interesting parallels between these discussions on different browser tabs.

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                        • icon
                          nasch (profile), 7 Apr 2015 @ 7:13am

                          Re: Re: thank you. being hard of hearing I was already aware

                          You are still free to be gay, the bakery just has no obligation to allow you to use their baked-goods platform in whatever way you want.

                          I don't think that's parallel at all. A better analogy to a bakery would be that you're free to get a cake anywhere you want but if you want one from this bakery you have to give two weeks notice. Those are their rules and if you want to be a customer you have to follow them.

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                          • icon
                            Gumnos (profile), 7 Apr 2015 @ 7:36am

                            Bakeries and websites

                            I'm not sure how you can think they're not parallel. I used your own words as a template to maintain the parallelism:

                            You are still free to {something}, they [clarified the business being a bakery instead of website] just have no obligation to allow you to use their [clarified the use of platform] platform in whatever way you want.

                            Both are cases of the law requiring a business to serve a class of clientele that the business doesn't want to for some reason—whether religious or financial or laziness.

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                            • icon
                              nasch (profile), 7 Apr 2015 @ 7:55am

                              Re: Bakeries and websites

                              Both are cases of the law requiring a business to serve a class of clientele...

                              That's where you went wrong. YouTube is not refusing to serve someone because of any category they belong to. They're refusing to serve someone who doesn't follow the process they've set up to upload videos. They cannot have a rule that says "you may not upload videos if you're Catholic." They are perfectly free to have a rule that says "you must be signed in to a Google+ account to upload videos", and I challenge you to find any law or court decision that says otherwise.

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                              • icon
                                Gumnos (profile), 7 Apr 2015 @ 8:11am

                                Re: Bakeries and websites

                                Ah, we're talking at different levels. You're limiting the discussion to Google/YouTube's interface for captioning videos & logging in. I'm talking at the broader level of the top article, whether a website (or business) should be able to exclude serving a subset of the population merely on “I don't want to” grounds.

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                                • icon
                                  nasch (profile), 7 Apr 2015 @ 8:17am

                                  Re: Re: Bakeries and websites

                                  I'm talking at the broader level of the top article, whether a website (or business) should be able to exclude serving a subset of the population merely on “I don't want to” grounds.

                                  Well, that depends on who they're excluding and why.

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                                  • icon
                                    Gumnos (profile), 7 Apr 2015 @ 8:58am

                                    Re: Bakeries and websites

                                    I'm trying to come up with good reasons for why one might reasonably advocate the exclusion of a subset of the population—whether Deaf/hearing, blind/sighted, gay/straight/etc, male/female, etc—as customers. And if a site is permitted to exclude folks for Reasons™, why can't a bakery exclude folks for Reasons™?

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                                    • icon
                                      nasch (profile), 7 Apr 2015 @ 9:28am

                                      Re: Re: Bakeries and websites

                                      You must be at least 48" tall to ride on this ride. You have dwarfism and are only 40" tall? Sorry, you can't ride. Not illegal. That's just off the top of my head, it's an example of why who is being excluded and why matters in determining whether the exclusion is legal. I'm sure there are a multitude of other examples.

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                                      • icon
                                        Gumnos (profile), 7 Apr 2015 @ 9:54am

                                        Re: Bakeries and websites

                                        So a dwarf wearing platform shoes… (this conversation took a weird turn)

                                        Yes, there are limitations permitted because of health/safety issues (a ride may have only been tested with certain weight/height ranges and exceeding those may leave a ride unsafe), or because requirements of a position (an employee may be required to visually discern defects in a product's coloration, excluding the blind). That doesn't mean that reasonable accommodations can't be made for the majority of businesses.

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                                        • icon
                                          nasch (profile), 7 Apr 2015 @ 10:03am

                                          Re: Re: Bakeries and websites

                                          That doesn't mean that reasonable accommodations can't be made for the majority of businesses.

                                          Of course, I never said otherwise.

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                                    • icon
                                      John Fenderson (profile), 7 Apr 2015 @ 3:21pm

                                      Re: Re: Bakeries and websites

                                      What about websites that have no customers?

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                                      • icon
                                        Gumnos (profile), 7 Apr 2015 @ 4:44pm

                                        Re: Bakeries and websites

                                        I suppose it depends on how you define terms.

                                        Generally website visitors are the customers. However, there are edge cases
                                        • a site is there to lure visitors' eyeballs to the advertising purchased by the actual customers. I'm somewhat up in the air on this variety, but would posit that ① it would be in the best interest of the site to ensure the widest possible audience, and ② if it's just advertising, there's less harm in (in)accessibility. I do find grey areas where the site provides a useful service in exchange for eyeballs to advertise to (e.g., Facebook, Gmail, etc)
                                        • a small company below a certain threshold of employees or income could easily be made exempt from accessibility requirements
                                        • sites that are put out by above-threshold companies that are merely an art-piece rather than useful are in a somewhat grey area


                                        And if a website has no visitors, that's the “if a tree falls in the forest and nobody is around to hear it, does it make a sound” sort of question.

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                                        • icon
                                          nasch (profile), 7 Apr 2015 @ 4:51pm

                                          Re: Re: Bakeries and websites

                                          Generally website visitors are the customers. However, there are edge cases

                                          a site is there to lure visitors' eyeballs to the advertising purchased by the actual customers.


                                          That's not an edge case, that's a huge proportion of the web.

                                          Would the thresholds categorically exclude non-profits?

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                                          • icon
                                            Gumnos (profile), 7 Apr 2015 @ 6:15pm

                                            Re: Bakeries and websites

                                            In the case of advertising-supported sites, I'd lean strongly toward the thresholding criteria.

                                            I'm not sure I'd exempt non-profits categorically. For those that are above the aforementioned threshold or are below the threshold and receive federal funds, they should meet accessibility criteria. I would exempt those that are below the threshold and don't receive federal funds (though would still assert that making a non-profit's site accessible is a wise move for multiple reasons).

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                                        • icon
                                          John Fenderson (profile), 8 Apr 2015 @ 7:56am

                                          Re: Re: Bakeries and websites

                                          There are a massive number of websites out there that have no customers, in the sense that visitors aren't being monetized at all: there are no ads, they aren't selling anything, etc.

                                          Also, what about websites that are available to, but aren't really intended to be used by, the general public. I run a number of these myself. While anybody can use them, the primary audience of them are people I personally know. Should those websites have to comply with the ADA?

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                                          • icon
                                            nasch (profile), 8 Apr 2015 @ 8:15am

                                            Re: Re: Re: Bakeries and websites

                                            I run a number of these myself. While anybody can use them, the primary audience of them are people I personally know. Should those websites have to comply with the ADA?

                                            Any personal web site would be under the employee count threshold.

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                                        • icon
                                          Sheogorath (profile), 8 Apr 2015 @ 6:27pm

                                          Re: Re: Bakeries and websites

                                          If a tree falls in the forest and nobody is around to hear it, does it make a sound?
                                          Yes, it does. Sound isn't generated by disturbed air impacting our eardrums, it's generated by the creation of the air disturbance itself. Otherwise, you might as well ask, "If a tree falls in the forest and only a profoundly deaf person is around, does it make a sound?"

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                                          • icon
                                            Gwiz (profile), 9 Apr 2015 @ 7:21am

                                            Re: Re: Re: Bakeries and websites

                                            Actually, the real question I want to know is this:

                                            "If a man says something in the forest and his wife isn't around to hear it, is he still wrong?"

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                                          • icon
                                            John Fenderson (profile), 10 Apr 2015 @ 10:03am

                                            Re: Re: Re: Bakeries and websites

                                            "you might as well ask, "If a tree falls in the forest and only a profoundly deaf person is around, does it make a sound?""

                                            Indeed -- that's the same question. However, perhaps you've not thought deeply enough about the koan. "Sound" may be the name we give for our perception of vibration, not the vibration itself. If the air is vibrating, but those vibrations aren't being heard, then you could argue that there was no sound, there was only vibrations.

                                            Of course, as with all koans, this one is intended to be impossible to answer satisfactorily.

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                      • icon
                        Sheogorath (profile), 8 Apr 2015 @ 6:29pm

                        Re: Re: Re: Re: thank you. being hard of hearing I was already aware

                        The issue here is that I'm not being prevented from using YouTube in whatever way I want, I'm being prevented from using it at all. It's getting to the point that I'm now seeking alternatives since some of the revenue from the adverts injected into my emails goes to a service I'm no longer receiving. Google's policy is a total violation of my human right to freedom of speech, and should be cancelled in the UK.

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                        • icon
                          nasch (profile), 8 Apr 2015 @ 6:45pm

                          Re: Re: Re: Re: Re: thank you. being hard of hearing I was already aware

                          The issue here is that I'm not being prevented from using YouTube in whatever way I want, I'm being prevented from using it at all.

                          How so?

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                          • icon
                            Sheogorath (profile), 9 Apr 2015 @ 5:00pm

                            Re: Re: Re: Re: Re: Re: thank you. being hard of hearing I was already aware

                            No Google+ = no account = no uploading of vids. Like I said, I'm being prevented from using YouTube in the way I signed up to use it. Google need to be less data-grabby.

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                            • icon
                              nasch (profile), 10 Apr 2015 @ 6:24am

                              Re: Re: Re: Re: Re: Re: Re: thank you. being hard of hearing I was already aware

                              No Google+ = no account = no uploading of vids.

                              Right, that's their rule. Is there something other than your preferences that prevents you from having a Google+ account?

                              Like I said, I'm being prevented from using YouTube in the way I signed up to use it.

                              Are you saying it should be illegal for companies to change their policies?

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                • identicon
                  Anonymous Coward, 6 Apr 2015 @ 2:17pm

                  Re: thank you. being hard of hearing I was already aware

                  They can be turned off, but most likely it's because of poor sound quality or long stretches with no discernible speech. (YouTube doesn't want a video of a dog barking to have captions that say semi-random words, as humorous as that might be. So the auto-captions will not activate, which also means that the few seconds where the owner speaks will have no captions.)

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        • icon
          BW (profile), 6 Apr 2015 @ 7:04am

          Re: Re: My daughter is deaf.

          No, the F word wasn't an appropriate response. I apologize. I was very angry at your tone. You dismissed my daughter, and all the other deaf, blind, and otherwise disabled people in the United States when you said, "Maybe netflix should put up a sign on their website, content only available for those that can consume it." That's not a reasonable or polite response to the issue either. Small, cheap changes to the website and to the laws would be a much better response.

          I don't think you realize the value that the ADA has brought to the US. Whenever we make something handicap accessible, we make more jobs available to the disabled, which reduces the public burden of supporting them, while making life easier for all or us. When you carry your shopping bags out the automatic door at the supermarket, you are looking at an innovation that would not be in place if the ADA had not mandated it. I could go on, but this is not the forum.

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          • identicon
            PRMan, 6 Apr 2015 @ 7:13am

            Re: Re: Re: My daughter is deaf.

            And then we have your dismissal of "it doesn't cost much". It does actually, you have to hire someone to sit through the movie multiple times and type it all out. It costs thousands of dollars per movie.

            Many movies on Netflix don't even make thousands. There are documentaries on there in that range. Those movies would disappear for everyone if they were forced to follow the ADA by providing subtitles. Is that what your daughter wants? Is she that selfish?

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            • identicon
              Anonymous Coward, 6 Apr 2015 @ 8:50am

              Re: Re: Re: Re: My daughter is deaf.

              I suppose you could have automated speech-to-text software to do this without having someone sit through the movie. On the other hand, BW could just as easily buy this himself.

              Or he could stand by and transcribe everything for his daughter, instead of essentially demanding that someone else do this for her.

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              • icon
                BW (profile), 6 Apr 2015 @ 10:25am

                Re: Re: Re: Re: Re: My daughter is deaf.

                Unfortunately, despite the fact that I would love to transcribe it myself, I am too hard-of-hearing to do so, although I have tried several times.Thank you for your kind, sympathetic and thoughtful response.

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                • identicon
                  Anonymous Coward, 6 Apr 2015 @ 10:52am

                  Re: Re: Re: Re: Re: Re: My daughter is deaf.

                  Unfortunately, despite the fact that I would love to transcribe it myself, I am too hard-of-hearing to do so, although I have tried several times.


                  Well, you never said that. In fact, you implied the opposite:

                  If I could get $200 per movie, I would be doing movies 24/7.


                  So either you're lying or you'd take someone's money for a job you're unable to do.

                  Anyway, if you can't do it yourself, hire someone. Apparently you can get someone for under $50/hour.

                  ... OK, not really, but why should the movie people be expected to do this and not you? Wouldn't the easy solution be speech-to-text software that YOU purchase (and can then configure to your own preferences)? If the script is so cheap, can't you just buy the script yourself?

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                  • icon
                    BW (profile), 6 Apr 2015 @ 11:32am

                    Re: Re: Re: Re: Re: Re: Re: My daughter is deaf.

                    Hi,

                    Sorry to disappoint you. I'm not lying about being hard-of-hearing. If I could get $200 to do a movie, I would spend $150 on the transcriptionist and make the rest on doing the actual closed captioning. I wouldn't get rich, but I'd make $20 an hour which is more than I've made per hour since I lost my hearing.

                    A small warning to you while you're still strong and healthy: As AC said above, "you're not getting any younger. One day, you might be blind, or deaf, or trying to navigate a page using your eye movements. And by the time that happens, imagine how dependent your everyday life is going to be on the web. You'll be trying to pay your bills or order groceries or schedule a checkup -- and if you're lucky, the people who designed the sites you're using will make that possible. But if they're callous and ignorant and insensitive, it's not going to go well for you."

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                    • identicon
                      Anonymous Coward, 6 Apr 2015 @ 1:54pm

                      Re: Re: Re: Re: Re: Re: Re: Re: My daughter is deaf.

                      You'd still take money for a job you'd be unable to verify was done correctly. Whatever.

                      I used to play a certain game on the Internet. The game turned out to be, very accidentally, somewhat blind-friendly for its genre, and it got a small following among the blind. After a few years the creator wanted to make some fundamental changes to the game, including changes to the layout that would take out some of the blind-friendly features and replace them with more visual ones. I don't want an Internet where it would have been illegal for him to do so.

                      Not every form of ENTERTAINMENT must be available to everyone. So yes, I'm rather unsympathetic when the subject is Netflix. And face it: your bill-pay site, grocery order site, and doctor appointment sites do not ordinarily require you to hear anything. Mostly, what requires sound is entertainment: games, videos, podcasts. (OK, there are educational videos too, but given the horrible error rate in most transcriptions I wouldn't trust a transcription for anything technical anyway - and if you want someone who knows what they're talking about to review the transcripts, you can't just pay them peanuts. And what would you have done 25 years ago when none of this Internet content was available in the first place?)

                      One day, you might be blind, or deaf, or trying to navigate a page using your eye movements.


                      If I'm seriously navigating a web page via eye movements then I'm probably not ordering my own groceries - I wouldn't be able to get them out of the bag anyway once they arrived. I'd be grateful for any entertainment, but I certainly wouldn't demand that every site change to accommodate me. If a medical facility that has blind patients does not make their website blind-friendly, they are fools.

                      You want captioning. The blind person wants narration. The colorblind person wants certain colors to not be near each other. The visually impaired person wants larger text. The ADD person wants it broken into 30 second chunks. Anything by itself isn't much of a burden. But you can't just do one thing. You have to do everything. Every time you make a change to your website you have to verify that every single accommodation is still working in every respect.

                      You have, functionally, made it illegal for your daughter to be a solo web developer, because she cannot verify that the blind-friendly portions of the site are working correctly. She will always have to hire someone else to do that for her.

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                      • icon
                        BW (profile), 6 Apr 2015 @ 2:09pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: My daughter is deaf.

                        Well, I guess I'm a liar, and a lousy worker who's looking for a handout from everyone, while wanting everyone to spend all their money on me and my handicapped friends, but whatever.

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                        • identicon
                          Anonymous Coward, 6 Apr 2015 @ 2:20pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: My daughter is deaf.

                          Well, I guess I'm a liar, and a lousy worker


                          To be fair, I said "or", not "and" :P

                          (Emoticons are blind-friendly, right?)

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            • icon
              That Anonymous Coward (profile), 6 Apr 2015 @ 8:51am

              Re: Re: Re: Re: My daughter is deaf.

              "It costs thousands of dollars per movie."

              And yet if the system forced this to happen, more companies would be doing this creating demand and competition in the market dropping the price.

              (Well until the larger player makes the right campaign contributions and we get laws blocking those who do it faster & cheaper by leveraging technology).

              I am not saying it is easy, but many films have scripts they could use as a base to start with. There is mechanical turk and other services that one could use to lower the price. The problem is that the big players keep the price inflated for doing the work (it makes a great write off I am sure) and require some sort of secret handshake to be in the fraternity of those allowed to do it.

              I am willing to bet, like in many things, there is a community of people who care about even the most niche of movies and would offer to help create the subtitles to help spread the word. Heck many of the fan based "services" often create better subtitles than the professionals do. There are always many paths to the goal, one just needs to take the first step and try.

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              • identicon
                Anonymous Coward, 6 Apr 2015 @ 9:09am

                Re: Re: Re: Re: Re: My daughter is deaf.

                And yet if the system forced this to happen, more companies would be doing this creating demand and competition in the market dropping the price.

                Forcing the producers of content to support people with disabilities is the wrong approach. A better approach is to allow other to create the support and sell/give the relevant files to whoever want such support. Unfortunately, over aggressive copyright protection, particularly with respect to derivative works, prevents this approach.

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            • identicon
              David, 6 Apr 2015 @ 9:02am

              Re: Re: Re: Re: My daughter is deaf.

              And then we have your dismissal of "it doesn't cost much". It does actually, you have to hire someone to sit through the movie multiple times and type it all out. It costs thousands of dollars per movie.


              It shouldn't cost thousands of dollars per movie. Given the script, it's a couple hours of someone copy/pasting the text into a subtitle editor and adjusting the timing. Add a bit more for the sound effects, where appropriate. Relative to the total cost of even the cheapest movies, however, it's not even noticeable.

              Of course, that's if it's done at the appropriate level — the studio that's distributing the movie in the first place. If Netflix has to do it themselves (and potentially every other service who shows the same video has to duplicate that effort), then yeah, it's an unreasonable hassle (particularly if they get sued for doing so).

              I would say that Netflix/Scribd/etc should absolutely provide things like subtitles, but they shouldn't be responsible for creating the subtitles. That should be the responsibility of the original creator/distributor, and should be as mandatory as nutrition labels on food. If the nutrition label is missing, you don't sue the store selling the food, you sue the manufacturer.

              The responsibility of Netflix/Scribd/etc is in creating a player that can select and display the subtitles. You can bring complaints against them for poor UI design, bad or unreadable fonts, etc. Bring complaints against the studios for failing or refusing to provide proper subtitles (regular and/or closed captioned versions) for the material they license.

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            • identicon
              Anonymous Coward, 6 Apr 2015 @ 9:55am

              Re: Re: Re: Re: My daughter is deaf.

              Noob question, but why can't captioners be provided with a copy of the screenplay to transcribe for the movie? Rather than sit through it multiple times, why can't they just transfer what's on the script to whatever format is used to embed captions into films?

              Would it cost less if there was, perhaps, a Fair Use exception and a service that provides captioners with copies of Hollywood scripts (because they're providing a public service, not "pirating" the screenplay for personal gain) to work from? Or do licensing/royalties agreements get in the way of this, WGA rules, etc.?

              I mean, it's not like you're "copying" a screenplay to Google Docs or Pirate Bay or anything. I would consider it format shifting which, I believe, has been ruled legal by the SCOTUS. I think the same fair use exception should be allowed for audiobooks for the blind, whereby you don't have to get a licensing agreement from the author to record an audio version of, I don't know, Gone Girl or something as a service to the blind.

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              • icon
                BW (profile), 6 Apr 2015 @ 10:36am

                It would cost less than $100 to CC a movie. I have done it.

                It would cost less than $100 to CC a movie. I have done it. I buy a DVD, rip it (as a backup only). Turn it into a mpg file, find a script, OCR it. and add it to the mpg. I takes me about 5 hours. If I didn't have to rip the DVD or OCR the script it would be even faster.

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              • icon
                nasch (profile), 6 Apr 2015 @ 12:38pm

                Re: Re: Re: Re: Re: My daughter is deaf.

                Noob question, but why can't captioners be provided with a copy of the screenplay to transcribe for the movie?

                Movie studios are not willing to do that. They don't want to give away anything for free, and they don't want to lose control over their productions either.

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            • icon
              BW (profile), 6 Apr 2015 @ 10:20am

              It does not cost thousands to transcribe a movie. More like $400 total

              A transcriptionist costs less than $50 an hour. To turn that into a captioned script for a movie cost about $50/hr. Once transcribed it can be added to an existing movie for less than $50. In fact, if you had the script, which can often be purchased for $25 or so, it wouldn't even cost $150.

              So: Three hour movie = $150
              Compositing to script= $100
              Syncing to movie = $50
              Total _______
              $300

              If I could get $200 per movie, I would be doing movies 24/7.

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              • identicon
                Anonymous Coward, 6 Apr 2015 @ 11:09am

                Re: It does not cost thousands to transcribe a movie. More like $400 total

                The problem is not doing the work, but rather in making the work available to others, as any attempt at distribution would result in the studios bringing legal action until you were destroyed by legal costs and stress.

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            • icon
              orbitalinsertion (profile), 6 Apr 2015 @ 3:13pm

              Re: Re: Re: Re: My daughter is deaf.

              Is she that selfish?


              Ah, there. There's the appropriate "fuck you" moment.

              You know, never mind the ADA or what it may legally applies to, quit acting like business and society are fine as-is with regards to the assumptions about who is a member of society and a consumer. Default mode for entitlement is male, white, straight, able-bodied, average height, and neurotypical. That's an elite group that barely covers anyone yet it is the group everyone else has to fit into a life designed for and by them.

              If you make things generally accessible, you don't have to worry so much about specific disabilities. But that would ruin the argument from the privileged side when they want to play the victim card about have to serve inconveniently different groups of other human beings by claiming they are all small and overly privileged groups.

              Of course bad laws and regulations are bad. Of course not every single business or person can accommodate every single potential consumer. But the selfishness, privilege, and honking huge sense of entitlement aren't where you'd like to project them.

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          • identicon
            Rich, 6 Apr 2015 @ 7:16am

            Re: Re: Re: My daughter is deaf.

            Mike wasn't dismissive of your daughter. The OP was. Besides all that (and speaking as someone who has MANY deaf family members), the ADA is a bad law. It is a blunt weapon that allows ANYONE to sue a small business for cash, even if they never frequent that business. There are lawyers who use it as a money-making scheme by threaten businesses that don't have the resources to fight back. Toilet paper roll an inch too high? Sue for some quick $$$.

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          • identicon
            Landamen, 6 Apr 2015 @ 7:32am

            Re: Re: Re: My daughter is deaf.

            Ok, to clear up the confusion, Mike Masnick did not post the "consume" comment that BW angrily responded to.

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          • identicon
            Anonymous Coward, 6 Apr 2015 @ 8:08am

            Re: Re: Re: My daughter is deaf.

            I help unskilled subject matter experts create web content for a living. I have web design training and experience and they rarely do. If the tools they use don't automatically make the content they create accessible then it will be very time and money consuming for them (or me, even though I'm not an expert on web accessibility) to make it accessible. You essentially have to unlearn everything you know about formatting text on a page and become an accessibility expert and perform extra tests or hire someone to perform tests to make sure your content is accessible. This isn't the same as hiring a contractor to install a ramp at your store. This is like becoming or having to hire an accessibility expert to adjust what is essentially every brick that goes into building your online "store." I'm not saying that websites shouldn't be accessible, but to accommodate the variety of use case scenarios out there isn't a minor burden. It's a full time job.

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            • icon
              BW (profile), 6 Apr 2015 @ 10:31am

              Re: Re: Re: Re: My daughter is deaf.

              It is not that hard. When the technology first came out it required specialized technology and experience to do. It can now be done on a home computer using FREE software. If my hearing were better, I'd be glad to do it for you. In fact, if you gave me the text of your website speech, and a release to use it, I would be glad to do this for you for a nominal sum.

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            • identicon
              Anonymous Coward, 6 Apr 2015 @ 10:32am

              Re: Re: Re: Re: My daughter is deaf.

              Nonsense. It's not a full-time job. It's TRIVIAL.

              Unless...you do dumb things that make it hard. Then it's really difficult.

              Every web designer should have it pounded into their head that web sites are NOT a place for them to show off their creative skills and fancy Javascript chops. Web sites are there to communicate and to be functional, and anything that doesn't advance those twin goals is superfluous. The question, every day, that they should ask themselves is not "What can I add to this site?" but "What can I take away?"

              Simpler is better. Smaller is better.

              This approach not only helps the disabled (and only a subset of those people are visually impaired or blind) but it helps EVERYONE. Sites that are efficient load quicker for everybody. They're more amenable to crawlers. They're easier to cache. They use less bandwidth, less disk, less memory, less everything.

              Contrast with horror of a site that won't even load its home page with Javascript enabled, and then, instead of actually loading something useful, displays a splash screen with a huge graphic of the text "Enter Site". Whenever I see things like that I want to reach through the screen and throttle someone. But least I can see it whereas a blind person gets a big shitpile of nothing.

              And those of you so cavalierly commenting in this thread should remember: you're not getting any younger. One day, you might be blind, or deaf, or trying to navigate a page using your eye movements. And by the time that happens, imagine how dependent your everyday life is going to be on the web. You'll be trying to pay your bills or order groceries or schedule a checkup -- and if you're lucky, the people who designed the sites you're using will make that possible. But if they're callous and ignorant and insensitive, it's not going to go well for you.

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              • identicon
                Anonymous Coward, 6 Apr 2015 @ 1:29pm

                Re: Re: Re: Re: Re: My daughter is deaf.

                I agree with the sentiment, but you're completely ignoring the fact that web designers are often not actually in charge of the web sites they build. They don't always get to make the decisions that you're pretending are easily implemented. Anyone working for a large organization or even for individual clients whose interests run counter to good web design can't necessarily insist that things be made simpler and more accessible by design. Often times you're working with someone else's code and fixing it or simplifying it is not only outside of your job responsibilities and would have to be done on your own time since you're not getting paid to do so, but you could end up breaking functional code that would require even more time to completely redesign while you're getting yelled at for doing something you weren't told to do.

                Your advocacy for simpler design, while noble and idealistic, is completely impractical for the way the internet works today. You'd have to create an entire bureaucracy of web designers to enforce your preference on the untrained and uncaring mass of MBAs, CEOs, VPs, and everyone else who "just wants it to work" but isn't willing (or sometimes able) to pay someone to create accessible content from the start or to overhaul inaccessible code.

                I'm not saying I don't care for people who need websites to be accessible and I'm not defending the way it currently is. I'm just saying that it's a long, hard road to get to where you want to go. Pointing at a destination on a map is significantly different than trying to get there. You have to convince a mass of uncaring people to even bother in the first place, much less pony up the funding.

                Unless there's some volunteer service that goes around helping people make everything they build online simpler and more accessible (and it able to come back every two years when the technology trends change again), there would need to be more WYSIWYG tools that just do this for them.

                I remember when things were as simple as you would like them to be on the internet. It was circa 1994 and most of the people on the web (as opposed to AOL) had to have some level of competency with computers in order to be there. We also didn't have Google or Amazon or smartphones or a host of others things that we have now. The web isn't getting less complicated anytime soon. More technology will only lead to more chaos.

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          • icon
            Mike Masnick (profile), 6 Apr 2015 @ 11:49am

            Re: Re: Re: My daughter is deaf.

            No, the F word wasn't an appropriate response. I apologize. I was very angry at your tone. You dismissed my daughter, and all the other deaf, blind, and otherwise disabled people in the United States when you said, "Maybe netflix should put up a sign on their website, content only available for those that can consume it." That's not a reasonable or polite response to the issue either.

            I didn't say that. Not sure why you are suggesting I did. I did not dismiss your daughter. I did not say that Netflix should put up such a sign on its website.

            I don't think you realize the value that the ADA has brought to the US. Whenever we make something handicap accessible, we make more jobs available to the disabled, which reduces the public burden of supporting them, while making life easier for all or us. When you carry your shopping bags out the automatic door at the supermarket, you are looking at an innovation that would not be in place if the ADA had not mandated it. I could go on, but this is not the forum.

            I'm well aware. But that has nothing to do with the point of this article.

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            • icon
              BW (profile), 6 Apr 2015 @ 2:54pm

              Re: Re: Re: Re: My daughter is deaf.

              Hi Mike,

              I love your articles and usually agree with them. I even agree with MOST of this article. I was on my phone and I was trying to respond to this post:

              anony@gmail.com, Apr 6th, 2015 @ 5:13am
              What?????

              This is rubbish the whole damn case. If subtitles are a legal necessity for movies then the movie industry as the manufacturer should be investing in them.

              No website should have any responsibility to the blind or the deaf, under any circumstances.

              Maybe netflix should put up a sign on their website, content only available for those that can consume it.

              So, I have to apologize twice, one for the F word and once for being so incensed that I targetted to the wrong person. My apologies again. I would like to add that my comment regarding the value of the ADA WAS appropriate to the article. If the ADA provided no benefits to society while it cost individuals money, then it would be a very bad thing all around , as well as being a bad law. I would be a very poor excuse for a person to champion such a law. I feel that, absent Team Prenda and their ilk, the law is a good law that not only helps the handicapped, but also society at large. You cannot understand, just as I did not understand before losing most of my hearing, how difficult it is to get a job when you are handicapped. No one wants to hire you. I have only been able to get small, low-paying jobs since I lost most of my hearing, and I have the advantage of being otherwise healthy and well-educated.

              reply to this | link to this | view in chronology ]

              • icon
                John Fenderson (profile), 6 Apr 2015 @ 3:16pm

                Re: Re: Re: Re: Re: My daughter is deaf.

                "I feel that, absent Team Prenda and their ilk, the law is a good law that not only helps the handicapped, but also society at large."

                To be fair, I haven't seen anyone say otherwise -- so I'm not sure what the relevance of this point is. The question isn't "is the ADA a good thing", the question is "is this an appropriate place to apply the ADA".

                It should be possible to have that discussion without anyone thinking that the concept of the ADA itself is being called into question.

                reply to this | link to this | view in chronology ]

                • icon
                  BW (profile), 6 Apr 2015 @ 3:50pm

                  Re: Re: Re: Re: Re: Re: My daughter is deaf.

                  You're right. I wasn't clear. Given that it really isn't expensive - around $20 per page OR LESS to make a website that accommodates the blind (I'm not counting content like videos etc.)

                  And MORE importantly, given that this cost, meager as it is, would only be imposed on sites that could easily afford it - according to the language of the ADA.

                  And given that it would be the decent thing to do.

                  I am explicitly suggesting that the ADA should apply to the web.

                  You're next question may very well be, "where are you getting these costs from?" I'll tell you. I sat down and translated a few pages, and it took me less than 1/2 hour to copy and paste (and occasionally add text) to make a page that met that VERY LOW bar.

                  BUT- for those of you who can't stand the idea of making life a LITTLE BIT better for the blind - you know who you are. AND for those of you who want to fight over my cost projection, I repeat - This cost would only be imposed on sites that could easily afford it - according to the language of the ADA.

                  reply to this | link to this | view in chronology ]

                  • icon
                    John Fenderson (profile), 6 Apr 2015 @ 6:22pm

                    Re: Re: Re: Re: Re: Re: Re: My daughter is deaf.

                    Well, OK, but even that is talking about problems with how the law is written, not with the idea that such a law exists.

                    I'm just seeing BW and a couple of other camps shouting past each other without really hearing what the other is saying. It's a little painful to watch.

                    reply to this | link to this | view in chronology ]

                    • icon
                      nasch (profile), 6 Apr 2015 @ 8:49pm

                      Re: Re: Re: Re: Re: Re: Re: Re: My daughter is deaf.

                      I'm just seeing BW and a couple of other camps shouting past each other without really hearing what the other is saying.

                      They're just concerned that the other person might be hard of hearing.

                      reply to this | link to this | view in chronology ]

          • icon
            JBDragon (profile), 6 Apr 2015 @ 5:14pm

            Re: Re: Re: My daughter is deaf.

            The ADA did a lot of good, but it's also gone overboard on so many things. For example things in a Bathroom for a business. how something has to be such and such high and if it's off a inch you get sued. What ends up happening, the business just closes the bathrooms from public use!!!

            There's people that spend all their time going into small businesses and then suing the crap out of them for a bunch of money because of the ADA laws. It's completely crazy.

            A lot of it is just a sham.

            reply to this | link to this | view in chronology ]

          • icon
            JBDragon (profile), 6 Apr 2015 @ 5:14pm

            Re: Re: Re: My daughter is deaf.

            The ADA did a lot of good, but it's also gone overboard on so many things. For example things in a Bathroom for a business. how something has to be such and such high and if it's off a inch you get sued. What ends up happening, the business just closes the bathrooms from public use!!!

            There's people that spend all their time going into small businesses and then suing the crap out of them for a bunch of money because of the ADA laws. It's completely crazy.

            A lot of it is just a sham.

            reply to this | link to this | view in chronology ]

            • icon
              BW (profile), 6 Apr 2015 @ 6:26pm

              Re: Re: Re: Re: My daughter is deaf.

              1) The lawyers are just misusing the (reasonable) ignorance of small business owners. If it wasn't the ADA it would be some other law.
              2) You can put a $25 riser on a toilet - send a certified letter and that's it. They won't want to chase someone who's responding. They're looking for the guys who are either belligerent (translation - stupid) or silent (translation - dumb).
              3) This suit over a toilet seat sounds like an urban legend to me (I could of course be wrong - it wouldn't be the first or last time.)

              reply to this | link to this | view in chronology ]

          • icon
            Tanner Andrews (profile), 9 Nov 2015 @ 7:01pm

            Re: Re: Re: My daughter is deaf.


            When you carry your shopping bags out the automatic door at the supermarket, you are looking at an innovation that would not be in place if the ADA had not mandated it

            In your dreams, maybe.

            In the real world, the ADA was enacted in 1990. The grocery stores where I shopped had automatic doors in the 1980s.

            Indeed, automatic doors were hardly rare back in the 1960s and 1970s, though they used a different technology to detect people. I remember one on a hospital office building in the 1960s using light beams to detect people, but the normal technology of the day at retail stores was a rubber pressure mat.

            I normally reject arguments that a thing which came after caused an effect which came prior. I see no reason to deviate from this rule in rejecting your argument.

            reply to this | link to this | view in chronology ]

        • identicon
          JEDIDIAH, 6 Apr 2015 @ 12:14pm

          Re: Re: My daughter is deaf.

          What's the burden for community access channels? Youtube really is nothing new. The idea of self publishing is nothing new. Our obsession with the latest shiny shiny tends to distract us from this simple fact.

          Any particular problem has probably already been seen before and solved.

          ...party on, excellent!

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2015 @ 9:18am

        Re: My daughter is deaf.

        Why doesn't every movie theater have closed captioning?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Apr 2015 @ 9:58am

          Re: Re: My daughter is deaf.

          Another question I have is why is the captioning so awful on talk programs? I get that you're basically attempting to transcribe a real-time conversation, but court stenographers do this pretty well, and I'm sure text-to-speech software could be improved and implemented so that it transcribes the conversation in real time to the captioning system.

          Again, not an expert here, but with all the other improvements being made in other fields of technology, I'm sure there are ways to make this better. Maybe the problem is that there isn't a lot of market ($$$) for it and/or it's too expensive?

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 6 Apr 2015 @ 10:10am

            Re: Re: Re: My daughter is deaf.

            For that matter, why is captioning so awful for scripted movies and TV shows? I always have captioning turned on (in Netflix, for which nearly all of the content I've seen has CC), and have noticed that horrible and laughably wrong captioning is quite common.

            reply to this | link to this | view in chronology ]

        • identicon
          David, 6 Apr 2015 @ 12:46pm

          Re: Re: My daughter is deaf.

          Why doesn't every movie theater have closed captioning?

          Most likely it can be argued as because each individual isn't capable of choosing whether to have said captioning on or off, out of the hundreds of people in the theater. Zonker's post implies both that AMC can provide closed captioning, and that it depends on the movie makers to provide said captioning. A quick Google search showed relevant devices to enable this.

          offtopic:

          On the other hand, while it is a very niche need, it does seem like it would be cool to have it so that you could use the camera on your tablet or phone to take a picture of your movie ticket (or use the digital ticket, if bought online, etc) in order to get the encryption key that would allow you to watch a streamed version of the movie in a theater area that's broadcast simultaneously with the movie being played, and have that streamed version have optional subtitles.

          Basically, a means of getting the subtitles with commonly available tech instead of specialized tech. Doesn't work for everything, but it seems interesting.

          /offtopic

          YouTube is big, should they have to close caption all their videos? Or require users to caption videos before they're made public?

          Same as every other answer: YouTube has to provide the technical capabilities (which they do), the 'producer' has to provide the subtitles. Since this is a business mandate, individual users are not required to provide subtitles for every video they upload, but I'd expect, say, ESPN's channel to be required to have captions on their videos the same as they'd need to have captions on their TV broadcasts.

          reply to this | link to this | view in chronology ]

        • icon
          BW (profile), 6 Apr 2015 @ 3:29pm

          It doesn't pay to do so.

          Movie theaters have the technology - it's called open captioning, but it is expensive - it's way overpriced because it's a specialty item and IT REALLY DOES COST THOUSANDS to install, unlike the fake thousands that some other poster said it cost to caption a movie.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2015 @ 5:34am

      Re: What?????

      Worthless parasites like you are why we actually need laws like this, albeit ones that are clearly written and clearly interpreted by the courts.

      reply to this | link to this | view in chronology ]

  • icon
    BW (profile), 6 Apr 2015 @ 5:42am

    The ADA and its "burdens"

    This article conflates two issues. The burden of complying with the requirements of the ADA, and the possibly criminal, definitely immoral behavior of Team Prenda. What is needed to deal with Team Prenda is an "anti shakedown" law. This law has been needed for a long time and would solve problems not just in copyright, not just in ADA compliance, but in a large number of legal venues.

    The ADA, is not an onerous burden. As Anonymous Coward, points out, good web site design makes a lot of this moot. And, equally importantly, it is good manner, good ethically, and good business to make your website as open to as many people as possible. AND IT IS EASY TO DO. As for the ADA's supposed burdens, as Gumnos above points out, the burden to should be passed upstream to the creators of movies etc., where the "burden" would be lightest.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2015 @ 5:43am

    They should probably make an ada standard implemention of webpages then make an option for it like the mobile implementations. I think it will happen eventually.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 6 Apr 2015 @ 3:22pm

      Re:

      This. So completely, and totally this.

      We have gone far out of the way to accommodate the mobile-ly impaired, refitting entire existing sites or mobile carriers doing it automatically.

      reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 6 Apr 2015 @ 6:37am

    If there is more than one reasonable way to interpret a statute, the interpretation should be obvious -- the court shouldn't be entertaining lawsuits targeting any of those reasonable interpretations.

    The obvious meaning of "place of public accommodation" is a physical place. A place you can enter. Or has physical barriers to entry, such as high steps.

    reply to this | link to this | view in chronology ]

  • identicon
    Pyrosflam, 6 Apr 2015 @ 6:38am

    Ada had this covered

    The ADA already has a section for cost dependency. If the cost of something is to great then you don't have to do it. This is to prevent orders of asking for larger doors on buildings that can't support them. Same for ramps that would have to physically push into the road. Both items are really common in NYC and any city with old buildings or high steps from the street.

    If taken to court over specific movies who refuse to provide CC because of copyright then Netflix would win the case. They would simply point out the cost is huge and that its above the ADA test. As long as they give CC for movies and shows that provide them. People challenging Netflix want them to use there market position to demand CC on all shows. (Actually they want money from legal fees).

    The same thing goes for your personal website. If your redesign cost is more then your original site then you have a defense of cost to the ADA.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Apr 2015 @ 7:44am

    So... just wondering, why would the National Federation for the Blind even care about the websites, if blind people can't technically see the websites in the first place?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2015 @ 8:08am

      Re:

      So... just wondering, why would the National Federation for the Blind even care about the websites, if blind people can't technically see the websites in the first place?
      How many websites do you visit for a purpose other than just seeing what they show? If you visit a financial markets site, you probably went there to learn about how the markets are performing, not to see the particular details of how the analysts convey that information. A blind user might also care how the markets are performing, and would want to get that information in a form he/she found usable. Likewise, if you visit an online news site, you want to know what is going on in the world, not the specifics of how the reporter lays out the article.

      For many years, screen readers have enabled computer use for people with poor or no vision, by having software read the screen aloud. This is obviously less efficient than just seeing the screen like a sighted person would, but if your choice is to go find a sighted person to navigate the site on your behalf or to not use the site at all, screen reader software provides a good alternative. However, screen readers only work if the software can make reasonable sense of the page. Infographics, mouseover sensitive menus/tips, and fancy page formatting can confuse the screen reader. For example, suppose the page author wants to show a paragraph that looks like it was written in an archaic cursive. The fastest, and least accessible, way to do it would be to have an image file which sighted people happen to recognize as containing text written in cursive. Screen readers would simply see "[image here]" or if it contains alt text, they might get "[picture of cursive]" from their screen reader. If that paragraph is essential to understanding the page, then users who rely on a screen reader are shut out.

      Also, keep in mind that some sighted people are considered "legally blind" because their vision is very bad, but they are not technically blind because they do sense light and shapes. Such users may prefer a screen reader over trying to read a monitor through fuzzy vision.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2015 @ 1:59pm

      Re:

      Probably because their members would LIKE to be able to use some websites like everyone else, damn them.

      reply to this | link to this | view in chronology ]

    • icon
      BW (profile), 6 Apr 2015 @ 2:56pm

      Techdirt is a great example of a site that doesn't use much graphics

      But we're here aren't we.

      reply to this | link to this | view in chronology ]

      • icon
        Gumnos (profile), 6 Apr 2015 @ 3:57pm

        Re: Techdirt is a great example of a site that doesn't use much graphics

        And just for the record, I browsed Techdirt in Lynx and had no trouble logging in and navigating articles. Posting comments left TD thinking I was a bot. ☹

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 6 Apr 2015 @ 4:05pm

          Re: Re: Techdirt is a great example of a site that doesn't use much graphics

          Posting comments left TD thinking I was a bot.

          Now that was good for a chuckle.

          reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 6 Apr 2015 @ 8:06am

    Blind person on the net?? Yeah.

    I know there's such a thing as partly blind.

    I even get that a person can be 'legally' blind, and still have some sight - it's down to one or both of how much they can see at all or their visual acuity, even with correction. I get that, I really do.

    But, I've gotta ask. Why is someone with such poor vision trying to use a visual medium in the first place?

    And while we're at it, if the plaintiff here is legally blind (not assuming they are totally blind - look at the first two paragraphs in this remark), then shouldn't the ability to make use of a web site even with any available technology to help them out be a part of standing to sue in the first place?

    Or is that too much like right?

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 6 Apr 2015 @ 12:44pm

      Re: Blind person on the net?? Yeah.

      Why is someone with such poor vision trying to use a visual medium in the first place?

      Because there is no parallel internet that's all audio. The internet is the greatest communication and information network ever built. It happens to be primarily visual, but that is not its core purpose.

      reply to this | link to this | view in chronology ]

    • icon
      Gumnos (profile), 6 Apr 2015 @ 1:17pm

      Re: Blind person on the net?? Yeah.

      HTML is a content-markup language. CSS is for the visual presentation. If an HTML document is semantically marked up and basic W3C/ARIA attributes maintained, it goes a long way to making a website accessible to users of screen-readers. Plenty of completely blind users browse the web every day despite the roadblocks thrown up by developer incompetency/ignorance. Some sites are completely inaccessible. Some sites are merely annoying to navigate with a screen reader (no structural markup means you may have to listen to 200+ links on the page before you actually get to the content). Some sites make it a breeze. There's a continuum, but it's not that hard to make a mostly accessible site.

      reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 6 Apr 2015 @ 3:38pm

      Re: Blind person on the net?? Yeah.

      Because networks and data are not visual.

      Blind people have been on computer networks longer than you know, clearly. There are multiple ways for them to receive data, from speech synthesis to Braille displays. I'll take a random guess and say that this has probably been the case longer than you have been alive.

      The modern Web is cute and all, but there was a hell of a lot available before there was a Web and before it got turned into the social and commercial dumping ground it has become.There was an Internet before the Web, and networks before that. Lots and lots of text. And as these things "progressed", they became worse for a lot of people. And if we are just looking at visual impairment here, the various types of color-blindness figure in as well, not just complete blindness or legal blindness. Content that was easily available in the past becomes more and more inaccessible as time goes on, because some people like dumbed-down flashy trash designed by corporate morons and people who shouldn't be allowed to code 'Hello world" let alone anything else.

      I don't know about the Netflix ruling, but the assumption that a negligible number of people are negligibly affected by the way some people want to design the net is beyond absurd.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 6 Apr 2015 @ 4:04pm

        Re: Re: Blind person on the net?? Yeah.

        There are multiple ways for them to receive data, from speech synthesis to Braille displays.

        Yeah, just watch Sneakers! Come on! I wonder if that's on Netflix...

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2015 @ 10:52pm

        Re: Re: Blind person on the net?? Yeah.

        Yeah, a lot of web design is junk. But making a junky web site shouldn't actually be illegal. If someone wants to make a website where the text is white-on-white, mirrored, and spins in circles when you hover over it, that's their prerogative.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 7 Apr 2015 @ 7:08am

          Re: Re: Re: Blind person on the net?? Yeah.

          It seems the ADA if applied on the internet has the potential to run into first amendment issues which wouldn't come up with a physical location.

          reply to this | link to this | view in chronology ]

  • identicon
    PyRosflam, 6 Apr 2015 @ 9:17am

    Wrong Target

    "It costs thousands of dollars per movie."

    From what everyone is saying people are suing the wrong company. Netflix is a distribution channel, Just like Itunes and walmart. Netflix's job is to only release product that others made, if FOX wants to put married with children on Netflix, you should be required to sue FOX for subtitles with the ADA.

    This both protects the small fry from being required to put subs as they are to small and forces the large to do there job. BUT it's inconvenient to be required sue each company when you can go after Netflix.

    reply to this | link to this | view in chronology ]


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