Will the Americans with Disabilities Act tear a hole in Internet law?
arstechnica.com
arstechnica.com
Here's the other thing: the technology, and the data, have existed here for several decades. With the exception of old foreign movies where subtitles are burned in, or where subtitles tracks were never produced, they exist, and it's not an unreasonable thing for Netflix to require subtitle tracks be submitted with new content.
It's not just subtitles, though, there are also audio tracks to consider. Netflix has droves of anime fans as customers that don't use Netflix to watch anime, because about 95% of it is in English and because subtitles aren't available.
Netflix has made a number of really bad decisions around subtitling and audio selection, and frankly, I severely hope they comply with the ruling even as they appeal it.
Fixing these features in Netflix is not only about the ADA. In this instance, it will give them a better product.
Netflix did do it years ago. As far as I know, all Netflix clients now fully support closed-captioning, and also multiple audio streams. (The XBox360 was a bit behind, but it supports it now.)
This isn't about Netflix supporting CC, it already does and has for a while. When they receive videos with CC, they make the CC available. This is about Netflix not being able to give videos without CC to anybody, and/or being required to put CC on videos that they were not provided with CC for and, as they say, actually can't CC without violating copyright law (though one imagines that if they are found to be required to add CC that their licensing contract will simply grow a new clause).
I mention this because I just read over all the comments as I post this, and nobody else seems to have mentioned this. The tech is there. If your Anime doesn't have the Japanese stream, it's because they weren't provided a Japanese audio stream, not a limitation on Netflix's side, and so on.
This is the way this is supposed to work: Netflix designs a service. People who don't enjoy service give feedback to Netflix. Netflix then decides how (and how quickly) to improve their service. If people are happy with this, then everyone wins. If people aren't, then they go and build their own service. If they succeed, then shame on Netflix for missing an opportunity. If they fail, then why should government regulation be have to get involved when the market proved this to be a bad idea (keep in mind, this is a video streaming service, not something really related to the pursuit of life, liberty & happiness).
It is very possible that the thought to add closed captioning crossed Netflix's mind, but then maybe they found it to be too expensive & possible illegal to implement this feature that wouldn't be used by their target audience. Maybe this feature is on their roadmap. There is also little precedence here. Not every screen on every movie is required to show closed captions. So why should Netflix be hamstrung by the government in this way?
It is a totally different thing to deny someone service based on factors they cannot control as skin-color or disabilities, than to not extend your service to take every group in the world into account.
If i develop a service that is useful to a lot of people, I shouldn't be punished for not taking into account every possible user.
I am not saying that deaf people don't deserve to be able to watch movies on Netflix, but I think that Netflix should be encouraged through grants etc. to make the site more useful for people with disabilities instead of forced.
Your argument misses the point of the ADA though, which is that the cost-benefit of accommodating disabled people is never worth it. The best you can hope for are ghettoized solutions for demographics that have sufficient clout for a meager market to emerge. There are some problems which pure capitalism can not solve, but we nevertheless deem worth solving as a society.
That said, video streaming is far too nascent an area to be hamstrung by this type of activist regulation.
In all honesty though, "closed captioning" is not Netflix's business & it's probably not something they are good at. When I was writing my post, I was under the assumption that deaf people already have tools to support this (like real time speech to text tools grabbing audio from the sound card).
I think the view of the ruling would be that if you are selling video then closed captioning should be part of your business.
I'm not sure how good they would need to be at it, beyond hiring a few people with some experience doing this or more likely getting subtitles from somewhere else that has already done them.
If there's a licensing issue here, then people should be suing hollywood.
The problem with free-marketism in cases like this is that we are talking specifically about quite small minorities (less than 1% of the population are deaf) therefor it's quite likely that most business can ignore them without noticing a difference in their bottom line therefor the problem would never be fixed.
The place each person watches is on their personal computers. When a user streams content or "looks" at a webpage, they are downloading it and viewing it on their personal computer. In this context, where is this place of public accommodation?
This case is like suing the sales man on the corner that you buy your newspaper from because he doesn't know sign language.
Of course this is all a rather technical interpretation of the situation, but think about it another way. Should this precedent be set, American businesses could be paying tens of thousands of dollars more than foreign business websites who need not comply with U.S. Law. The best part is closed captioning streaming video is just the tip of the iceberg. Once the ADA patent trolls get moving, we may our see(or what would have been our) tech start-ups incorporate abroad to lesson not only the direct web site costs, but the lawyer fees they will be paying once the ADA trolls think they are richer enough to be extorted.
Ammmerrricca, Fuck Yeah!
The patent issue is a separate one, so I think if the government wants people to comply with this then they have some obligation to help protect people from patent trolls.
If this sort of law is not put in place now, then the deaf will be increasingly pushed out of access to the entertainment for which they have already had to fight pretty hard.
So, I upload videos to my site, do I have to close caption them? Do I have to close caption a stream I do from my iPhone? It would seem if my site has ads, it would count as commercial and be subject to these rules.
This isn't the case. When was the last time you went into a movie theater and watched a movie that had closed captioning? I have a deaf friend and he complains about having to drive great lengths to find a specific theater playing a specific movie with closed captioning.
Really, though, as a web developer/designer, you need to be considering accessibility from the very start. It's likely to come up as an issue at some point, especially if your software is going to be used by educational institutions or non-profits.
Should you be? Yes.
Do you need to be? No.
I can't spend an extra 10% (or 5%... or even 1%) of development time for the 0.001% of my users who are disabled or using screen readers. The return on investment is just not favorable enough.
This on the other hand.. aiya.
But that wasn't always true. It took legislation and experimentation and a lot of work to change architects' habits. It's second nature now only because we (as a society) forced them to do it all the time.
You just proved my point. Making it a law made it standard in the industry. Disabled parking spots cost more than regular because of the extra markings and signage. Ramps cost most than stairs. Even if the cost is just 1% - 5% more, that cost has to be absorbed by the business owner and over time, businesses have learnt to take that into consideration.
Other countries where ADA or equivalent laws do not exist, do not have ramps, special parking spots, or similar accommodations for the disabled. Ramps are not standard there. It is a challenge for my cousin's family in India to take him ANYWHERE because he is in a wheelchair. Some elevators are so small that even the smallest wheelchairs don't fit. Most parks, malls, and other public places usually have no ramps so his wheelchair has to be carried with him in it. ADA makes the lives of disabled individuals and their caretakers better.
The question is, does the Internet need an ADA? I myself am split on that. On one hand, I make software to help the disabled communicate but on the other, who wants to be regulated by the Government in their own field?
This move would me more akin to requiring Wal-Mart to attach braille price stickers to every individual item in the store.
Special parking spots easily cost 1% more than regular parking spots because of the markings on ground and the metal signage. That fits into the excessive cost range that the original parent post was against.
I do like your analogy of braille on every item. I think make something accessible should mean accessible not perfectly suited in the best environment. That is, you should make your site/app accessible to e-readers, not be required to make a whole another custom UI just for e-readers.
Eh, I don't know that it would even be 1% more - for a construction project most of the cost comes from the mobilization of equipment and prep work. For the construction of a parking lot, you have excavation, installation of drainage, installaction of subgrade, paving, curbing, signage, and line painting, all of which take a week of more for a decent sized lot. When it comes time to lay out the HPV sport, the line-spraying and post-hole digging equipment is already there, it's just applied differently. I'd be shocked if it were even a 1% difference.
In any event, given that the contingency on construction projects is typically 5% to 10%, so even 1% is insignificant. But we're in the weeds here ;)
In the case of Title III, architects and other people involved in the design are individually liable should they fail to design in accordance with the technical standards.
ADA is civil rights law, and ROI doesn't enter into Title III, only "technical infeasibility." To put it another way, "I make more money by discriminating against the disabled" isn't any more a valid argument than if one substituted "women," "Latinos" or "Coloreds."
If I throw up a proof of concept website in a weekend as a test, it takes off, and I work on it full-time just to make sure it's not exploding/falling over as it scales, and I don't go back and make everything 100% accessible to 100% of my users, am I really discriminating against the disabled?
Am I obligated to cut into my revenue (if _any_) to make the site accessible to users who will not be or are not a valuable asset to me? What if it's a video site and I don't provide closed captioning? Do I have to caption all my videos do the deaf can watch them? Do I have to provide complete transcripts for every blind person?
I'm not intentionally discriminating, I'm just unable to justify allocation of my development time/resources to that particularly area.
I don't think it's a moral problem since I'm not going into it with a "fuck the handicapped" mentality. It's a result of allocation of extremely constrained resources.
(Note: I agree with you. I'm just arguing here for fun. This is unenforceable, anyways, and, if it did become enforced, companies would just move their sites/online companies offshore.)
Yes. At the point where your site stopped being a proof-of-concept and became a public offering, that's when an inaccessible website starts discriminating against disabled people.
Simply put, a service offered publicly needs to be accessible to the public. That public includes people with disabilities.
But there is no legislation that says my website must be publicly accessible. I could randomly return 403 errors, or only block people using Firefox, or only block people from the state of California.
When there's legislation saying that my website must not exclude people, then I'll consider accessibility.
If I whip up a HTML5/CSS3 website over the weekend that does nothing to be accessible, is it still technically accessible? The entire document is readable with a screenreader even though the contents may be out of order if your reader does not support CSS (or even a certain CSS revision).
What if I use Facebook Connect exclusively to let people login? That's not gonna work with a screen reader.
Who, exactly, will be judging my site to ensure compliance with this legislation? Are they really going to ensure compliance of every page on every website?
Nothing against disabled people (and I, like most people probably do, have some in my extended family), but if I'm building a lean startup and getting stuff out to market quickly, I'm not going to do an accessibility pass. Sorry. If this does become law, you'll start to see Internet entrepreneurs move to more accommodating countries like Singapore as Western countries continue to legislate everything in sight.
http://en.wikipedia.org/wiki/Closed_captioning#Legislative_d....
I'm not sure this ruling is as wide as the article makes it out to be. Books aren't required to be printed in braille or published in audiobook form.
There will have to be a second ruling that puts 'video content on the internet' into the same category as television shows in order for this to apply.
Amazon got into trouble for this: http://phillipsgivenslaw.blogspot.com/2009/03/new-kindle-aud...
Netflix's primary defense was, essentially, "We're a website and the ADA doesn't apply to websites." (It also claims that the CVAA exempts them, but I don't think the ruling on that issue is really what folks are worried about here.) The Court's decision primarily affirms that websites are not summarily exempted from the ADA. It does not imply that all websites are subject to ADA requirements, or that all content on all websites is subject to them, or any of the other breathless hand-wavy Chicken Little style speculation that the article engages in.
Netflix did make an argument pertaining tangentially to copyright, but as the ruling points out it was framed as a technical argument that was again intended to demonstrate that it exempted Netflix from the ADA on the grounds that they were a content distributor rather than a content provider. The Court ruled that this argument did not stand, but it also took time to specifically clarify that, because Netflix did not actually make the claim that they may not have had the right to generate closed captions under copyright law, that issue was not actually placed before the Court and therefore could not be addressed by the ruling. It did suggest, though, that it could be visited if a motion for summary judgment is filed. (p. 14)
So it seems that small businesses and start ups are not forced to comply unless they become sufficiently big enough such that they cannot assert as under "undue hahrdship" clause.
I'm not informed enough to comment on whether the particular ruling made sense in light of the law, but the "this is obviously a horrible decision!" vibe of the article is confusing, and leads me not to trust their conclusions about it.
Because anything less doesn't translate down into actionable items that you can hand to designers/developers/IT/monkeys/nephews. We're also going to need some way to test it that doesn't break the bank.
This is going to be a mess. There are no established standards that one can point to in a court of law and everyone has a different opinion about what constitutes reasonable effort.
The only people that will clean up here will be lawyers and so-called consultants.
All online spaces?
Frequently asked questions:
Q: How's the government going to police this?
A: They won't. However, you will comply simply because not complying exposes you and your employer to financial liability if someone makes a complaint.
Q: What if this change puts my company out of business?
A: If your margins are too thin to achieve compliance, you'll go out of business; the law doesn't care how much it costs you to comply.
In practice, you will raise your prices to compensate, and if your competition are eating your lunch by not being compliant you'll tattle on them.
Q: Won't this make my job a lot harder for no good reason?
A: Yes it will, but you'll get to ask for a higher salary (see "financial liability").
Look at it this way: if you have an ADA from the start, there isn't going to be some segment of the population you exclude from using your product. That's a good thing. Now, nailing on ADA compliance to something that had poor design decisions is going to be painful. In that case, the positive side is that you're going to be forced to get rid of that technical debt.
Regulation is important, but it shouldn't be stifling. Laws ought to be dynamic and scalable so that the proverbial "two guys in a garage" don't have to sink their startup by investing time in energy in compliance issues.
Ideally, businesses would be subject to regulation based on some index of revenues/profit. This might range from simply paying taxes on the least profitable end, to having a dedicated team of government regulators for the largest corporations.
However, this runs afoul of numerous legal principles, so I'm not expecting change anytime soon.
As others have pointed out: the point of the ADA is that the disabled are a tiny, tiny market, and the cost-benefit analysis done by a for-profit business is rarely going to result in any accommodation for them. It is explicitly a government mandate that these people be accommodated because society is a better place when people who have been disabled are not also woefully under-served.
(You can disagree with that last statement, I suppose -- it's a question of values. But I agree, in general.)
What I think needs to happen is an adjustment in the ADA. I'd love to see exceptions made for very small businesses (so startups aren't choked by the requirements) and for user-generated content. Netflix is an edge case: the content is not theirs to close-caption, but it's not "user-generated" either. I could see either requiring that they only show close-captioned material, or imposing more requirements on the production side of streaming video.
But I really don't see any reason that large, profitable web companies like Google, Facebook, or Amazon should be exempt. "It will cost money" or "Making screen-reader-friendly sites is boring" are not good excuses.
You mean like all those exceptions that are already provided for in the ADA's repeated use of the phrase, "readily achievable"?
In the US Code, "readily achievable" is a term of art that is specifically designed to account for the fact that different organizations might be more or less able to do certain things. For example, large companies have a whole lot more resources available than smaller ones. In other words, what you're advocating is already deeply embedded into the ADA.
A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
The typical paraphrasing I hear from developers is that it requires an organisation (but not necessarily the developer) to make "every reasonable effort to comply", for which there is a baseline of appropriate colour contrast and reviewing WCAG validation.
It does mean that developers for UK-based services are less disposed to Javascript-heavy applications/components and video content (because of the requirement for ARIA and transcripts/CC respectively).
[1] http://www.legislation.gov.uk/ukpga/2010/15/part/3/crosshead...
Of course the Act has of course done immense public good. It was passed with the best of intentions, but I've known folks who gloat over the amount of money they made settling out of court simply over suing small businesses who have a single step to get in their door off of the street.
Also, they can't possibly have the right (as was alluded to in the article) to modify these films without permission.
Finally, can you imagine the resources required to do this. I do not know how many films and tv shows Netflix hosts, but surely it is in the thousands, or even tens of thousands. (More?)
Yes, shops are required to be accessible (ramps, etc...) but they are not required to make sure that everything they sell is suitable for people with disabilities. A cinema will be accessible, but not all of the films they show will be sub-titled.
In the same way, commercial web sites should be accessible, but surely they can't be forced to try to make everything they sell suitable for those with disabilities.
If films are available with captions, then they should try to make them available with captions - but surely they can't be forced to add captions to films and TV shows that don't already have them. That responsibility should surely be shouldered by the producer of the media.
I am a little less worried about Netflix and a little more worried about live video streams and videos hosted on individual websites. Sending out ADA lawsuits is a full time job for some lawyers and most are pay money to settle types.
For example, the rules going into effect (delayed until after the election) for hotel pools pretty much mean that the Mom & Pop or non-chain hotels will close their pools. The cost of new equipment is pretty high and most just don't have the space to install it. Defending against lawsuits is not terribly fun.
A Barnes and Noble book store is a place of public accommodation and is required to be accessible. Why shouldn't their website be held to the same standard when they conduct substantially the same business transactions with the general public?
Keeping in mind that ADA is civil rights law designed to prevent discrimination on the basis of disability , the question may be put another way - why should Barnes and Noble be allowed to create physical barriers to the disabled on their website in a way that is illegal in their store?
I believe that Youtube would be exempt from the Twenty-First Century Communications and Video Accessibility Act of 2010.
It's hard to imagine Google having it any other way without stories appearing on HN.
Forcing B+N to produce Spanish/French translations, or Braille editions of all its stock isn't.
'The most crucial ruling is where the court says that a website qualifies as a "place of public accommodation."'
The context of my comment was in regards to the general case of website accessibility falling under the scope of the ADA as a place of public accomodation, i.e. as web commerce replaces bricks and mortar stores, the nature of what constitutes a place of public accommodation will shift to keep up in order to protect the rights of persons with disabilities to participate in civic life just as the Uniform Business Code has been extended into these new places of business.
This goes further and claims that all the content must also be available to the deaf with CC, and presumably described audio for the blind as well.
This is the bit that goes beyond reasonable. The ADA requires me to make the store accessible from the parking lot for those in wheelchairs - it doesn't require me to modify my stock of mountain bikes to be usable by the disabled