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Free Library of Philadelphia Lawsuit Casts a Pall Over eReader Lending Programs Everywhere

Lots of libraries have been buying ereaders and lending them to patrons, with as many as 28%reporting that they did so in Fall 2010 (the latest data). But it looks like all those libraries may have been wasting their money.

Four visually impaired Philly residents filed suit this week against the Free Library of Philadelphia. They allege that the Free Library’s new Nook lending program, which is about to expand to cover 5 library branches, violates the Americans with Disabilities Act because the Nook is not accessible to the blind (it has no audio support at all).

The thing is, they’re probably correct.

FYI: When you read the word accessible, I’m sure you’re thinking of text to speech. But the technical meaning of the word accessible as used  here extends beyond the support for text to speech, which for example the Kindle can do.  The Kindle qualifies as accessible because it also includes a feature called Voice Guide. This helps the visually disabled navigate around the menus that they cannot see, thus enabling them to independently use the Kindle.

The story broke earlier this week when the National Federation of the Blind  issued a press release on this lawsuit, which you can find it here. You can also peruse the court filings (here, here), thanks to InfoDocket. The press release is formulaic, but the filings are worth a read.

Caveat: I have not yet heard back from the FLP yet, so all the details mentioned here are from one side and should be taken with a grain of salt.

The first detail that jumped out at me was that the FLP funded their Nook lending program with a $25k federal grant. That leaves me scratching my head as to why the grant didn’t require that the library comply with laws like the ADA. It’s not relevant to today’s story, but it is curious.

The basis for the lawsuit is rather simple. The 4 plaintiffs have each checked out a Nook and tried to use it. They couldn’t because it did not support audio of any kind. Since the ereader program consists of 65 Nooks but not any other devices, the plaintiffs were unable to make use of the equipment bought by the Free Library of Philadelphia.

The National Federation of the Blind then sent a letter to the FLP about this issue. The reply is not included in the court filings, so I do not know how the FLP responded. (I’m planning to post that when I can.)  But if you can judge anything by the 5 months delay between that letter and this lawsuit, this did not end well.

On a side note, there’s a corollary here that I don’t think anyone has considered yet (I haven’t heard of it, at least). What about audiobook collections that some libraries are investing in? Those cannot be used by the deaf, given that most are recorded audio and not spoken text (ie, they’re MP3 files, not text files). So wouldn’t that content also qualify as a violation of the ADA?

And that really isn’t such a stretch. Quite a few libraries are investing in Playaway devices like the one pictured at right, or they are buying MP3 players. Both can be checked out to patrons, just like libraries do with ereaders. And neither type of device can convert audio to text, so they clearly cannot support the blind.

In any case, libraries are going to have to come to terms with the fact that they need to support all patrons with their programs. They are covered under the same requirements as the universities who were sued for their ereader pilot programs back in 2009.

I didn’t like the lawsuits when they were resolved in 2010, but they did force everyone to confront the issue. It’s now a settled point of case law that ereader programs have to be ADA compliant. That’s not a bad thing. And it’s long since been a recommendation of the American Library Association, who issued a resolution at their annual conference in July of 2009 (it’s in the court filings).

It’s also not an insurmountable requirement. Libraries do have options, which I plan to cover in more depth in a later post. The NFB posted a video a few days back which showed one of the pricier alternatives to non-compliant ereaders. It’s an iPad equipped with a Braille reading device.

The upside to this lawsuit is that it is going to affect all library ereader programs, not just Nooks. Yes, B&N is making a strong effort to sell to schools and libraries, the Nook isn’t the only ereader which is falling down on the job. The Kobo Touch is equally inaccessible. In fact, of the major US ereaders, only the Kindle qualifies as being usable by the visually disabled.

The transition will likely be painful and expensive, but it still needs to be done.

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Tyler May 5, 2012 um 10:25 pm

How about racks and racks of books in the library that blind people can’t read!

finrind May 6, 2012 um 2:19 am

I don’t understand. Nooks are bought for reading, just like paper books. Are they suggesting libraries should stop buying paper books because blind patrons are unable to use this program?

Karl May 6, 2012 um 6:52 am

Yeah; like others have said, aren’t all library’s non-Braille books inaccessible to blind readers? And audiobooks inaccessible to deaf people? And un-subtitled movies? Some aspect of the blind plaintiffs' case must be missing here.

Nate Hoffelder May 6, 2012 um 7:51 am

You guys are correct about the point on paper books. But it’s also not relevant here because they’re not covered under the ADA, so far as I know.

I don’t think anyone ever expected libraries to do something about their vast paper book collections; that is financially and logistically impossible. But institutions can meet the needs of the disabled when they launch new programs, and they should.

It’s like y’all are saying that since we cannot make the crawlspaces in the attic wheelchair accessible there’s no reason to make the rest of the building wheelchair accessible. It really doesn’t make any sense.

Tyler May 6, 2012 um 8:35 am

The Kobo Touch is even inaccessible to patrons who can see when the touchscreen doesn’t work.

Richard Adin May 6, 2012 um 9:03 am

I’m wondering what the ancillary braille device is in the video. I don’t recall iPads coming with that device as standard equipment. In addition, what good is a device that permits the audio when the books themselves do not come enabled?

After hearing how the iPad reads the books, I would think the listener would prefer a real audiobook.

I strongly support accessibility but I find this case going the wrong way. The original intent of the act was to make things accessible when there were no alternatives at all. There is nothing preventing the blind from buying an iPad and a braille reading device and then borrowing the ebooks from the library.

I guess the Federation’s position is that it is better for no one to have access than there to be limited access, a fairly selfish view. The iPad costs nearly 5 times what the Nook costs, resulting in fewer purchases, so what is the likelihood that a device would be available for a blind patron to use in any event? Perhaps the Federation not only wants iPads bought but wants them reserved for the blind.

Fbone May 6, 2012 um 11:59 am

My comment from Teleread:

Reading Exhibit B by the president of the NFB was interesting. For example he acknowledges that there are different forms of “print disabilities” such as low vision and manual disabilities that many ereaders would satisfy. Then he demands that libraries purchase only ebooks that publishers have enabled text-to-speech to comply with various laws. Also, libraries should not use any inaccessible software to obtain these ebooks. One such software in violation of the ADA is Adobe Digital Editions.

So, he wants an unnamed device that satisfies all possible disabilities.
Only ebooks that have text-to-speech enabled.
DRM free ebooks or books that don’t require ADE.

I did laugh at his “libraries can force publishers to change” remarks.

Peter May 6, 2012 um 4:16 pm

Couldn’t they just buy one or two handicap-enabled devices for blind patrons, and keep everything else the same?

The requirement is that the library itself be accessible to the disabled, not every individual device.

That also explains why paper books are allowed.

Nate Hoffelder May 6, 2012 um 5:15 pm

That’s what they should have done, yes.

Fbone May 6, 2012 um 8:20 pm

No, the lawsuit requests that all Nook devices be removed.

CC May 7, 2012 um 1:08 pm

There are many things available in public libraries that are not also provided in accessible formats. Not every Kindle book is text to speech enabled. When I checked into a Kindle Fire a few months ago, I was told it did not have text to speech. Adaptive equipment for the visually impaired is so expensive many people who need it cannot afford it. Check out the prices of readers that will support audio books from the National Library for the Blind and Physically Handicapped on the NFB page
such as the Victor Reader Stream on sale for $359. Apple has done an exceptional job with built-in accessibility…which is why I went into debt to buy my iMac so I can zoom up to read and write this with my limited vision. No library provides every book in accessible format. Not every book is even available in accessible format.Even the National Library service does not provide every book I would like to read in accessible format. There is simply no way to provide accessibility across the board to everyone with every type of disability. Libraries are pushed into new technology like e-readers to keep circulation numbers up to fight funding cuts and make the public happy. Yes, libraries should provide accessible devices when possible…but with the mobility limitations that often come with visual impairment and other disabilities…how many will be able to get to the library to check out that coveted device? It’s a complicated issue.

Libraries and eBooks CAN Live Together May 7, 2012 um 8:17 pm

[…] course, the libraries have their own challenges, but I […]

PF Anderson May 7, 2012 um 8:36 pm

Some of the misunderstandings in the comments are not overtly stated in the blogpost, so I am unsure of the source of the confusion. Or perhaps it is I who is confused! I am a librarian and accessibility advocate. Please note, I am NOT a lawyer.

I’m aware of the PFL suit, but have no inside knowledge. I am as perplexed as any of you that they would accept federal funds and then not follow federal guidelines. It is even more perplexing since just a couple years ago they hired an accessibility consultant to advise them. Simply put, based on the information currently available to us, it seems that PFL should have known better.

Practically speaking, it is not always possible (especially in these times of limited budgets) for any of our institutions to supply all information in all formats for all audiences. I used to work in a very tiny library. Our solution was basically to provide a guide. The aisles weren’t wheelchair accessible, so if someone needed a book and couldn’t get to it, a staff person would get it for them. Likewise, if a book was available in print and someone needed audio, there was a campus conversion service. The reverse was also true. If someone needed a print book and the only copy was audio, then we would try to find a print copy.

You get the idea. It isn’t necessarily the device that has to be accessible — it is the content, and the services. I’m guessing that the primary focus is on the content. So, if the library had the ereaders, and for the books included on them, ALSO had print, large print, and accessible audio, then it doesn’t seem like so much of a problem that the e-reader is inaccessible.

Given that this was a grant funded program, it may not be considered a core library service, but might be something that the library was field-testing. If that is the case, then during the beta trial, they wouldn’t necessarily have to address all accessibility concerns. They would be expected to address them before making the service permanent.

I don’t know. I don’t know what books were on the Nooks, and I don’t know if there is alternative access to the same or equivalent content. I don’t know if the service was promoted as a permanent core library service, or as a test run. Different standards apply for the different situations.

The basic message I take from all this is to clearly demonstrate GOOD WILL and GOOD INTENT regarding accessibility. If, when you have an accessibility challenge, someone from the library cheerfully volunteers to help, and then goes above and beyond to the limits of the resources available to them, chances are that any good-hearted person will be grateful for the assistance and not blame them for the original problem. That is especially true if they make efforts to prevent a repeat of the same problem. The very existence of the lawsuit implies that THIS is not what happened. That is much more sad than the question of whether or not libraries will be allowed to have Nooks.

Nate Hoffelder May 7, 2012 um 11:45 pm

"It is even more perplexing since just a couple years ago they hired an accessibility consultant to advise them"

Now that is an interesting twist. I wish I knew why they didn’t consult the consultant.

SmokeyJose May 8, 2012 um 4:14 pm

So the solution is for a machine that costs 5x as much or technology that doesn’t yet exist?? ADA keeps giving and giving – into lawyers pockets. with a few crumbs for the disabled as well.

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