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9th Circuit Gets it Wrong, Rules Netflix Isn’t Subject to the ADA

3990049531_e1c94fdd9e_bUS courts have long disagreed on whether the Americans with Disabilities Act applies to websites, and this week the 9th Circuit Court of Appeals came down on the wrong side of the debate.

I caught the story from Ars Technica:

A federal appeals court ruled (PDF) yesterday that the Americans with Disabilities Act (ADA) doesn’t apply to Netflix, since the online video provider is "not connected to any actual, physical place."

Donald Cullen sued Netflix in March 2011, attempting to kick off a class-action lawsuit on behalf of disabled people who didn’t have full use of the videos because they aren’t all captioned. A district court judge threw out his lawsuit in 2013, and yesterday’s ruling by the US Court of Appeals for the 9th Circuit upholds that decision.

The decision is "unpublished," meaning it isn’t intended to be used as precedent in other cases. However, it certainly doesn’t bode well for any plaintiff thinking about filing a similar case in the 9th Circuit, which covers most of the Western US.

While I don’t have a copy of the ruling, I would bet that Netflix made the same argument which Scribd made when it was sued by the National Federation for the Blind last year. Both argued that the ADA did not apply to their respective online services because websites weren’t places.

Scribd made the argument before a judge in New England, and lost the argument last month. The Netflix case was filed out west, where the 9th Circuit has repeatedly reached the wrong conclusion.

While the 9th Circuit is technically correct based on a literal reading of the ADA, but as a matter of principle and common sense they are wrong.

Passed in 1990, the ADA was intended to guarantee that disabled Americans have equal access to businesses, services, and public spaces – but not the internet, which is understandable because there was no such thing at the time.

Common sense tells us that Congress would have included online services when writing the ADA if they had known about them, but unfortunately the existing BBS and other computer networks were relatively unknown and obscure.

As a result, the ADA doesn’t mention the internet, so there was doubt as to whether the law covered online services.

Luckily for us that oversight was corrected in 2010, when Congress passed the 21st Century Communications and Video Accessibility Act (CVAA).

I love the CVAA; it takes the same basic idea as the ADA and applies it to the internet. So Scribd and Netflix want to argue that the accessibility requirements of the ADA don’t apply to them?

Fine. The CVAA does, and it says that online services have to be accessible.

I first heard about the CVAA in late 2013 when several ereader makers asked that their devices be granted an exemption from the regulations. Amazon and other companies argued that ereaders were so limited in function that they could not reasonably be made accessible.

The ereader makers got their exemption in January 2014, and it was extended earlier this year.

Fun Fact: Amazon et al got an exemption from the exact same regulations which requires Netflix and Scribd to have accessible websites. Yes, the law was rather broadly written, but that isn’t important.

What matters is that there are accessibility regulations which apply here, and there is a way to go after Scribd and Netflix.

The FCC has a complaint process for issues like this.

Consumers cannot sue directly, but they can complain to the FCC. Should companies like Scribd and Netflix be found in violation, they can be fined up to $100,000 per violation per day (source).

That will get real painful real quick.

image by See-ming Lee

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Medium Punch April 2, 2015 um 11:41 pm

Ugh, should not have read the arstechnica commentary after reading the article. The peanut gallery pretty much boils down to a "fuck the disabled" viewpoint…

May the results remain "unpublished" when the next go around comes. Especially if there’s another play to extend the ereader exemption once more.

Richard Adin April 3, 2015 um 3:49 am

I am curious. The lawsuit was because not all of the videos are captioned, not because the website is inaccessible. On what basis should Netflix be required to add captioning? Shouldn’t the lawsuit be against the producers of the videos, such as Viacom and Comcast, because they have control over the content. The distributor (Netflix in this case) doesn’t have the right to remaster the videos. Or am I missing something?

Nate Hoffelder April 3, 2015 um 7:27 am

They both have a legal obligation towards accessibility. One obligation does not preclude the other, and what’s more Netflix can either develop or buy the necessary tech.

fjtorres April 3, 2015 um 8:04 am

They *theoretically* can but the courts are saying the law, as written, doesn’t force them to.
There is a difference between "they should" and "they must". Morally, they should; legally, they can’t be forced to do it, according to the courts. I’m not sure an appeal to SCOTUS will produce a different result.

It costs money to do those things and Netflix, being in expansion mode like a startup, is minimally profitable. And there is a lot of vintage content in there that right now would require a lot of manual labor to caption. If they were legally forced to pay for that captioning, the only viable response would be to drop all non-captioned content. Which might degrade the value of the service enough that they would lose customers and lose their profitability. At which point, nobody gets the content, captioned or not.

The courts tend to tread lightly in economic matters which is probably why their interpretation of the law differs from the advocates. History has shown that overly expansive interpretations only create bigger problems than they solve.

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