
Will the Americans with Disabilities Act tear a hole in Internet law? - iProject
http://arstechnica.com/tech-policy/2012/06/will-the-americans-with-disabilities-act-tear-a-hole-in-internet-law/
======
dthunt
Here's the thing: Netflix should have done this years ago, and it's a fucking
crime that people are still making inaccessible websites. I'm not visually
impaired or hard of hearing, but it irks me when I run into a site that is
unusable by people. Especially when you're talking about a wildly popular site
like Netflix.

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.

~~~
jerf
"Netflix should have done this years ago"

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.

------
dfxm12
Regulation stifles innovation. We are in an era of rapid & incremental
deployment. This is an undue burden to place on developers.

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?

~~~
sp332
This doesn't work in real life. Your scenario would apply just as well to not
serving "blacks" and "coloreds". Well if they don't like it, they can complain
to management and it will get fixed when they feel like it.

~~~
drharris
That's a bit of a straw man argument. Serving "blacks" and "coloreds" does not
require any extra work. Serving people with various disabilities can take an
extreme amount of extra work.

~~~
sp332
I think dasil003 made the point better than I did. My main problem with
dfxm12's post is that the way he describes "This is the way this is supposed
to work" does not work.

------
blaqsmith
I highly suspect the negativity of this article and the comments attached to
it are unwarranted. The ADAs goal here (or at least, its original goal) is not
to force Netflix to create captions for things that do not have them, but to
maintain accessibility for a certain class of entertainment that is already
required to be accessible when it's not on the Internet. This means tv shows
and movies, things that already have captions offline -- this sort of
entertainment should be required to maintain their accessibility when moved
online.

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.

~~~
dfxm12
_but to maintain accessibility for a certain class of entertainment that is
already required to be accessible when it's not on the Internet._

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.

------
jmcqk6
This is going to be very tough to enforce, but I think it could have a
positive effect on many websites. Forcing ADA requirements could lead to a
better design in some places. Heck, just making sites readable on a screen
reader could force huge improvements. Of course, the downside is that this is
going to be a very costly change for most websites out there who have never
even considered accessibility issues. That is, assuming this ruling is upheld.

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.

~~~
getsat
> you need to be considering accessibility from the very start

 _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.

~~~
chime
Everything you just said can also be said by Walmart or Applebees but they are
required to build ramps, custom bathroom stalls, and special parking spots.

~~~
Karunamon
Ramps and stalls are standard on any construction nowadays, and there's
nothing special about disabled parking spots - they're just the ones closest
to the entrance with blue lines instead of yellow.

This on the other hand.. aiya.

~~~
chime
> Ramps and stalls are standard on any construction nowadays, and there's
> nothing special about disabled parking spots - they're just the ones closest
> to the entrance with blue lines instead of yellow.

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?

------
krschultz
Every TV show in the US is required to have closed captioning (in English &
Spanish, and no matter whether it comes via cable/satellite, broadcast, or
web).

[http://en.wikipedia.org/wiki/Closed_captioning#Legislative_d...](http://en.wikipedia.org/wiki/Closed_captioning#Legislative_development_in_the_U.S).

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.

~~~
dfxm12
That doesn't solve the problem that Netflix does not own the copyright to the
video content it streams & might not be legally allowed to create/distribute
derivative works like closed cpations.

Amazon got into trouble for this:
[http://phillipsgivenslaw.blogspot.com/2009/03/new-kindle-
aud...](http://phillipsgivenslaw.blogspot.com/2009/03/new-kindle-audio-
feature-is-text-to.html)

~~~
bunderbunder
Netflix has not claimed anything pertaining to that issue in its defense, so
the court cannot rule on that issue.

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)

------
khoslav
It seems that we are over-hyping the impact. A quote from one of the comments
on the article page: "In summary, the ADA has an "undue hardship" clause. This
clause basically states that a private business does not have to provide an
accommodation if it would present an undue hardship for the business. There
are actually several examples that I can think of IRL, because my girlfriend
uses a wheelchair. How many small businesses do you enter that do not have
either (A) automatic doors or (B) a handicap door? I'd venture a guess at
least few, more or less, depending on where you live. It probably seems
relatively minor if you aren't using a wheelchair, but I challenge you to
think of how you would get into the all the places of business you enter for a
day or two and it may become easier. These small businesses, because they do
not have the financial ability to make ADA compliant changes to their
buildings, are exempt from compliance. "

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.

------
dllthomas
Online spaces _are_ spaces of public accommodation. Companies should be taking
reasonable steps to allow access by the disabled.

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.

~~~
drivingmenuts
Define "reasonable".

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.

~~~
dllthomas
This is a fantastic argument against using my comment as law or judicial
precedent.

------
fusiongyro
Web developers, welcome to the world DBAs live in, where the law has something
to say about what you do!

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").

~~~
jmcqk6
For no good reason? I hardly think removing discrimination is not a good
reason. You might mean that the financial benefits are outweighed by the
financial cost.

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.

~~~
fusiongyro
In the interest of humor I'm overstating the position.

------
csharpminor
I think this case highlights one of the fundamental problems with our legal
system making policy decisions: all companies will be held to the same
standard regardless of their individual characteristics.

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.

------
ajdecon
If it stands, this ruling is going to be a huge mess for a few years... but I
actually think it will turn out to be a good thing overall. (Measured in
society's terms, not web developers.)

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.

~~~
bunderbunder
> I'd love to see exceptions made for very small businesses . . . and for
> user-generated content.

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.

------
famfamfam
To see where this might lead, consider the UK, where this is already the case.
The Equality Act 2012 [1] (which itself is a replacement for the Disabilities
Discrimination Act which also applied to websites) requires:

    
    
      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.
    

It applies to websites (Airline BMI Baby was sued by the National Institute
for the Blind for failure to meet the as-then Disabilities Discrimination
Act).

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...](http://www.legislation.gov.uk/ukpga/2010/15/part/3/crossheading/provision-
of-services-etc?view=plain)

------
hack_edu
One can only hope that the extent of litigation allowed against individual
companies is appropriately limited and understood in the appropriate contexts.
This certainly wasn't the case when the the ADA of 1990 was first passed. In
those first years after the passage of the ADA we saw thousands of
opportunistic lawsuits that made their filers instant millionaires.

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.

------
Digit-Al
This doesn't make sense to me. Surely Netflix is, basically, a shop that sells
access to other peoples content (ignoring the hosting, etc...) In that case,
requiring them to close caption all of their content would be like requiring
Amazon to close caption all of the DVD's they sell.

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?)

~~~
Digit-Al
I notice from a lot of the comments that there seems to be a certain amount of
confusion about making a site accessible and making content accessible.

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.

------
brudgers
[IANAL] But I deal with ADA Title III all the time.

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?

~~~
protomyth
Who is responsible to make sure every video on YouTube is closed captioned?

~~~
brudgers
[IANAL]

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.

<http://www.govtrack.us/congress/bills/111/hr3101>

------
SeppoErviala
I live in a country that has closed captioning on all tv-content and on most
content on national video streaming services. I don't see why this should be
of any problem for company like Netflix.

------
sageikosa
Next up: mute/deaf people with no fingers suing Apple over the App Store not
having sufficient affordances for people no fingers and unable to converse
with Siri.

------
j_s
I would like to see more effort invested in potentially disruptive enabling
technologies, like YouTube auto-captioning + translation, etc.

