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Netflix sued for lack of captions on streaming videos (gigaom.com)
46 points by benwerd on June 17, 2011 | hide | past | web | favorite | 65 comments

>According to the lawsuit, the ADA requires that all “places of entertainment” provide “full and equal enjoyment” for people with disabilities.

I'm sure it's lost in translation from legalese, but that seems like a really broad requirement. How can you claim full and equal enjoyment of deaf people at a nightclub say? Googled the act and tried to read it (http://www.ada.gov/statute.html) but I can't parse it.

Edit: removed the bit where I said surely captions aren't hard - article links to netflix saying it is (http://gigaom.com/video/why-netflix-doesnt-offer-subtitles-o...)

NetFlix has been trying to implement captions[1], it's actually a lot more challenging then you'd think (with a library as large as NetFlix's).

They've been rolling it out slowly the past few months, but I'll at least give them credit for trying.

I had never noticed the lack of closed captioning on online video until I dated a deaf girl a few years ago, and then you sort of notice how much content exists that is suboptimal when you can't hear.

[1] http://blog.netflix.com/2011/02/30-of-netflix-streaming-cont...

I notice it every time I'm linked to a news story that's only in a video format. I'm literate, thanks, I don't need an announcer slowly explaining things to me.

This. A million times this. I don't understand the push that's been made on the web wherein content that would be perfectly usable as normal plaintext & images becomes videos. It is really easy for me to move freely spatially and really difficult for me to move freely temporally and this is no different on the web. Moreover, it is really easy for me to randomly access a single sentence of text and actually pretty damn difficult for me to do the same with a sentence of spoken word (and this is before you account for my minor hearing difficulties).

> I don't understand the push that's been made on the web wherein content that would be perfectly usable as normal plaintext & images becomes videos.

My guess is that it's better for advertising because they can show you ads that cannot be skipped before getting to the content.

That certainly explains some cases, but it definitely doesn't account for all cases. I still distinctly remember a video someone made that was just reading a joke list that is widely spread across the internet. The delivery didn't add anything to the list. There was no reason to be a video whatsoever. A number of howto-type videos are the same way (while some really do benefit from a video, many more don't). I've even seen a few videos with no audio and the only content was text on a black background.

My various problems with online video mean there's a lot of content from which I'm essentially cut off unless I want to put forth a special effort, and such effort is usually (though not always) not worth it.

The vast majority of Netflix's DVD contains subtitles, so they are available. There is very little excuse that Netflix has for not having this content available. While "the best" solution from a technical perspective is to figure out a way to add captions to content, the alternative, serving up a "burned in" caption feed for those who need it, is technically possible and easily done.

Of course that costs Netflix money, they have to maintain two copies of each movie. But the law says you have to make the same accommodations available to disabled individuals as others have. Disabled persons shouldn't have to wait until Netflix can find "the efficient" answer, or the best technological solution. It is Netflix's responsibility to make this content accessible, and if today that means two copies of the content, so be it. Such laws are there to protect disabled individuals when it's not the best answer for a company's "bottom line" to accommodate them.

Netflix has been dragging their feet on this, and this is why they will likely lose this case.

I had a blind (legally, but not completely) roommate in college, and he found my dogmatic adherence to widescreen movies annoying, because it made everything smaller (on a 4:3 screen).

I did, however, get in the hang of navigating apartments in the dark, and relying more on spatial memory and less on my vision for finding things (e.g. picking up your toothbrush and toothpaste).

Hopefully this will change over the next few years as voice recognition improves.

Closed captioning often requires more than that, e.g. for transcribing important non-speech events. Nevertheless, progress in large vocabulary continuous speech recognition might help a lot, with subsequent editing.

Actually, I think I'd like to work on that :). Ah, so little time..

This is why there are devices that help caption public performances like the opera and scheduled sign language interpreters.

The Boston Opera provides a great specific example. http://www.bostonoperahouseonline.com/Accessibility.htm

It's not an overly broad requirement it's an appropriately just one.

For whatever it's worth, this is the Boston Opera House, a venue usually used for Broadway tours, not an actual opera company. Boston Lyric Opera (arguably the largest opera company in Boston) does have similar accessibility though.

Easy, if you have captions available, if not then it is a bit more difficult. They have been working on it and most of their streams do support it.

Only a third of their streams support it, and they have been "working on it" for a long time. Working on it isn't good enough, you need to make the experience accessible to disabled individuals, period. That's the law, and rightly so.

All their DVDs contain subtitle options, so the content is there. They can make the content accessible by providing a separate "burned in" copy of the content with subtitles for those who need it, and they could have done that a long time ago.

I hate to see lawsuits like this, but unfortunately it is the only way to get captions on the majority of content. TV would not have captions if it weren't for the brave fight of some deaf activists.

I never really appreciated captions much, but my wife does not speak English as her first language, and not having captions on a movie sometimes means she will be bored and unable to enjoy it with me.

It's not the only way. In the article it says that Netflix already has 30% of streaming content captioned, with plans to expand that to 80% by the end of the year.

Well, that puts a different complexion on things, doesn't it? If they are actively working on it, that proves that they're not discriminatory. This is a pure opportunistic cash grab.

Opportunistic is a bit harsh. I think it's more to force Netflix to make this a priority. Sure they're "working on it", but I doubt it's a huge priority since it affects, percentage wise, a small portion of their audience.

I bought my mother a third-party device for her television so she could stream Netflix last Christmas only to find out that Closed Captioning wasn't supported. It was pretty depressing - she couldn't use it at all because she is hearing impaired.

There's a reason why there are laws in place for compliance - often times good business strategy and "accessibility for all" don't align.

One of my best friends is profoundly deaf, and (obviously) they really transform her experience. Only 0.2 to 0.4% of the population in the US is "functionally deaf", but I think the principle is important: if it's required on TV, why not on the Internet?

It's easy to forget about accessibility. Another friend can't use iOS devices because he's mobility impaired, and is a little dismayed by the broad move to touch-based devices. But they're cool to develop for, right?

iOS devices that come with the VoiceOver screen reader are changing the lives of visually impaired people who were formerly limited to bulky and/or very expensive devices with a limited selection of apps for mobile use. Nowadays, any iPhone or iPad sold in stores works out of the box to do everything from making phone calls to email, browsing, gps, games, productivity apps, facebook, and more spoken in dozens of languages, displayed with different zoom levels and higher contrast, and even in conjunction with bluetooth braille displays.

I also remember back when Apple introduced easy to use videochat in iChat with the iSight in ~2003 and again with FaceTime in iOS devices, and my deaf/hard of hearing friends thought this was an awesome alternative way to communicate.

They are cool to develop for, and I feel incredibly lucky to be working on an iPad app for visually impaired people right now and to help said people learn how to use the screenreader. It's amazing how I've watched some people go from technophobia caused by progressive vision loss to being inseparable from their newly purchased iPad/iPhone and doing more than they ever learned to do on traditional computers.

The Apple Accessibility team is made up of incredibly cool people that always seem to be open to suggestions to better improve their products. Your friend should shoot them an email at accessibility@apple.com instead of just grumbling about how iOS devices are out of his reach. I remember a lot of blind folks I knew that grumbled a lot when the iPhone first came out, because they thought an all-touch interface meant that the device was doomed for use for the blind. That turned out to be very, very wrong. You never know what they might have in mind, and maybe your friend has some cool ideas to pass on.

>> if it's required on TV, why not on the Internet

You certainly need to be careful that requiring captions doesn't require everybody putting a video on Youtube to caption it. As great as that would be for deaf people (and for searching video), it's a burden that might kill a lot of things.

The move to touch-based devices being hard for the disabled/elderly/etc. is an issue I've been thinking about too. It's a hard problem but one that will hopefully spur some innovation in the coming years.

Maybe splitting hairs, but actually I think it was a law passed by Congress that mandated captions for broadcast television, not the threat of civil lawsuits.

English captions, or captions in her native language?

English captions help a lot for someone that doesn't speak English as their first language. She has a pretty decent grasp on it, but when actors talk fast, it can sometimes be tough to get it all. Captions help.

So, am I allowed to sue Netflix if I can't afford to be a subscriber? What if I only like a genre of movies that isn't available on Netflix? I understand the need to have subtitles and in an ideal world, everything would come with them, but this seems a bit too much.

The important distinction is that being poor or disliking Lost are not considered disabilities per the Americans with Disabilities Act. That law attempts to guarantee that anyone who is disabled has equal access to, among other things, the entertainment available to those without.

I think your point is that it is a somewhat arbitrary to grant this group of people this right of equal access compared to the two other groups you mentioned, which certainly has some merit. But, that's the law, and Netflix should have to follow it the same way the entire television industry does.

Netflix shows intent with plans to expand to 80% by end of year. What's the problem? Is having a lawsuit really going to make that happen more quickly?

The deaf community has been nothing short of begging Netflix to add captions for over 5 years now, and have essentially been ignored the entire time. The usual excuse was that it was technically impossible to add the captions (bs, really).

In the last year or so they've made slight motions towards implementing ~some~ captions, but have done a very bad job of it. Most shows would just have random episodes captioned. So you start a new show, then a few episodes into the season realize you couldn't keep watching them in order because the next few episodes were uncaptioned. To say that this is frustrating, especially for an arc based show like Lost (which was their flagship example of "we are captioning for you!" for the longest time) is an understatement.

This lawsuit is essentially the deaf community having reached a boiling point. These were patient people who tried for the longest time to get Netflix to act like a decent company, and it just didn't happen. It's rather sad that without this lawsuit, they probably never would.

They should probably stop sending Netflix $8 per month and support a competitor instead.

It's absurd that a private business can be forced via lawyers to offer a particular product. "We don't want to" should be allowed in a free society.

In principle, I agree with you. On the other hand, what is the difference between "We don't want to offer captions" and "We don't want to build wheelchair ramps"? How about "We don't want to serve or hire [ethnicity]"?

In a free society all of those things WOULD be allowed. And most of us sane, rational people would opt not to give those discriminatory companies money. That's what freedom actually is. Its having the freedom to be an asshole, bigot or racist, and its my freedom not to support that kind of behavior with my wallet.

But yes, I agree, there isn't a big difference there, and personally I'm of the opinion that the government shouldn't be in the business of regulating any of it.

it pushes a lot of work on consumers - you need a lot of information/research to know who you can buy from (and if you're being strict you'd have to follow their supplier chain also for your opinion to affect all the B2B companies).

I feel like that already with sweatshops/child labour already - you hear a couple big companies when it hits mass media, but it's no doubt widely spread, so boycotting scandalised company of the day might not be effective (and just incentivise better PR/press control).

"And most of us sane, rational people would opt not to give those discriminatory companies money."

I still remember all those "whites only" stores going out of business in the 50s...

Sounds nice but look at the history of business. Laissez faire was attempted and didn't work out so great.

Sometimes there need to be rules and they need to be applied evenly so nobody has an advantage that others don't. If one business has to build wheelchair ramps or close caption while another doesn't, that's an unfair advantage.

You can dislike government all you want, but don't pretend these things we have would magically occur without some kind of intervention.

Obviously this isn't the forum to get into an economics debate, so I'll just leave it at this: we have never, ever had true "Laissez faire" free markets. We have always had corporatism/corporate capitalism. There is a very distinct difference between the two. I am arguing in the theoretical "given a truly free market" but we don't have such a thing, and never had, so it truly is theoretical. Given the current situation I largely agree with you - given the right circumstances however, I do think true freedom would work.

"Rational people" would weight the costs and benefits of finding out which companies have discriminatory policies and might decide that they just don't care enough for spending their time on it.

Unfortunately, disabled individuals "voting with their dollar" will likely not be enough of an impact to cause Netflix to alter their business practice. That's why laws to protect minorities exist, because when left to the free market, such minorities cannot exert enough market force to prevent being discriminated against. There are minority groups that we protect against discrimination as a civilized society, and disabled individuals are one such.

That would have potentially have been a valid point to bring up in 1990 when George H. W. Bush signed the ADA into federal law, but it's not appropriate anymore that it's the law of the land. Should businesses be allowed to ignore physical mobility impairments, and not install ramps?

Actually, yes, and the reason is, if the disabled (and being able-bodied is only a temporary situation, for everyone) took their business elsewhere, those companies would lose business to those that of their own free choice did install whatever accessibility.

It's better of society if people do the right things for the right reasons, not because there's a threat of the law hanging over their heads.

History has shown that people do the wrong things for the wrong reasons. This is why we have food safety, fire codes, building codes, worker safety, privacy & disability laws.

Most regulatory laws come from chronic & rampant abuse. The fantasy land of free market ideology assumes that all important information is knowable & understandable in an instant, when that is rarely if ever the case. It also overestimates the power of a boycott or that a company will even understand that they're being boycotted or why.

What if all the disabled people in a town took their business away from Cafe A that didn't have disabled access & go to Cafe B. Given that Cafe A is extremely popular with non-disabled people, they eventually get enough money to expand. They buyout Cafe B, remodel w/o the disabled access & now there are no cafes that are disabled accessible. Has the market failed or has the market basically said "you don't matter disabled people, suck it".

It's better of society if people do the right things for the right reasons, not because there's a threat of the law hanging over their heads.

It might be better, but it's not realistic. You might be surprised at the amount of violent crime that doesn't happen because of the law.

And the free market dynamics are just not effective in cases such as for the disabled. It may not be financially possible for a small company to cater to disabled customers -- this is why the law usually requires a business of a certain size. But once you hit a certain size you can afford to accomodate the disabled.

Now you're saying that a big company can say, "We don't allow disabled access", but small companies who may want to target them may not be able to afford it at all. So now you have a situation where the disabled aren't served at all because the big companies won't do it, and the small companies can't afford to.

ADA is needed because the number of disabled people in the US isn't large enough for the free market/competition process to play out as you suggest. It will never be economically efficient for private enterprise to look after the needs of some groups, hence legislation is needed to ensure their needs are met.

That requires people who are (temporarily) able-bodied to be sufficiently foresighted and activist-y - I'm not sure consumer boycotts frequently work (either due to lack of information or coordination or it being too much effort).

I agree I'd like the market to sort it out instead of law, but I don't think it's realistic. Consider access ramps/elevator requirements for example - if a fairly significant chunk of key businesses (say supermarket, banks, workplaces, transport) in an area don't all have them, the area becomes practically uninhabitable by people in wheelchairs.

Maybe a stupid way of putting it, but given the fact that only a small percentage of the US are physically disabled, will their boycott have any impact at all?

We all grow old. That's what I mean when I say being able-bodied is only temporary.

Am I required to change my product to make everyone happy, or capable of using it? It might make business sense, but it very well might not.

Netflix IS working on it. There isn't any magic faerie dust to make it happen. 30% of their content has it now with a projected 80% by years end. That is pretty darn good. This is a cash grab pure and simple. I don't think the law applies to them as written anyway. Netflix isn't a "PLACE of entertainment" and you would be hard pressed to prove that in court.

This lawsuit, and threat of litigation on behalf of disabled individuals, is the only reason why they've been making the relatively quicker process this year. This isn't a cash grab, this is simply the only tool disabled persons have to force Netflix to comply with the law and accommodate them.

Interesting. I wish this article went into some of the history with Netflix and ADA compliance for people who know nothing about their past (like myself). Thanks for that insight.

Netflix doesn't seem to like to act unless they get in legal trouble. Such as their misrepresentation on how their customer DVD priority system works, the possibility of private information being leaked via the Netflix Prize & now this.

This should have been an important priority from the get-go. If the DVD or BR has subtitles, then there really isn't much reason the online streaming version shouldn't have this option. They gave numerous excuses on why they couldn't do it & they just kept giving out new ones. So now they have a lawsuit on their hands.

Truthfully, I don't think Netflix cares about the deaf people who use their service & those who complained they'd rather have them drop the service & get off their backs. I think they had their lawyers look over the law, feel it doesn't apply to them & they've put it on the back burner allotting very little resources to it because they truly don't care & were essentially waiting for the deaf community to put their money where their mouth is.

Sort of surprised they aren't covered by some variation of the "safe harbor" clause in ISP laws. They are not creating the content, they are making existing content created by others available over the Web.

It's sort of like suing Blockbusters because they carry DVDs that do not come with closed captions.

In any event their current captioning needs work. I tried watching "Stone of Destiny", which takes place in Scotland, and these American ears could not understand all it. I tried using the captioning but it had a very peculiar glitch: every so often I would see a rush of captions for the next few minutes of audio. It would vanish, and then I'd hear the audio it was meant for. So I gave up.

I assumed their streaming was pulling the captions from whatever was provided on the corresponding DVD.

I have a heard-of-hearing friend and when we watch DVDs together we almost always turn on captions. However, some TV shows, such as from the BBC some years back (e.g The Poirot series) have no captions. Are the American distributors of these DVDs open to a lawsuit as well? What about my local library, where I got them?

I don't think that would work here. It would be like a TV station claiming they didn't have to broadcast the caption stream because they were just retransmitting content from a media company. Bottom line is the ADA says you must broadcast captions.

It would be like a TV station claiming they didn't have to broadcast the caption stream because they were just retransmitting content from a media company.

Sure. But I've never thought of Netflix as a TV station any more than YouTube is a TV station. They don't do scheduling, they don't have an obligation to carry certain kinds of material (as, I think, TV stations must) and they aren't using limited, licensed bandwidth.

I see NetFlix as a video rental store, like Blockbuster. They've just abstracted the "get a disk, put it into a device, press play" thing by allowing me to use their servers as my DVD player (more or less).

Also, if Wikipedia is correct, "Title III of the ADA requires that public facilities, such as hospitals, bars, shopping centers and museums (but not movie theaters), provide access to verbal information on televisions, films or slide shows."

If anything NetFlix may be more of a movie theatre than a TV station.

I'd actually be curious to see if they use that in their defense. It'd be a unique argument that could have some traction.

They are a bit cheesy in visual style, but these videos http://www.ada.gov/videogallery.htm communicate a lot of great information about what is required by the federal Americans with Disabilities act, signed by George H.W. Bush in 1990.

Sort of off-topic, but can someone explain the theoretical basis behind class action lawsuits, as applied to this instance? The article says "The Netflix lawsuit was filed on behalf of the 36 million Americans that are either deaf or hard of hearing." Is that just a turn of phrase, or can someone really file a lawsuit on your behalf without your consent? (I'm assuming they didn't contact all these people for permission ahead of time). Is there some central registry of which Americans are deaf/hard of hearing? Will they be paid out from the proceeds if NAD wins?

can someone really file a lawsuit on your behalf without your consent?

Apparently so.

Is there some central registry of which Americans are deaf/hard of hearing?

I doubt it.

Will they be paid out from the proceeds if NAD wins?

If they win, then there'll be an ad in the paper (hopefully not on the radio) inviting anyone who is deaf to fill out a form in order to claim their share of the winnings (after a very substantial fee to the lawyers). It'll be a few dollars. Hardly anyone will bother to write in, and lawyers will collect the rest.

Everybody wins! And by "everybody" I mean the lawyers.

You should probably start with the fairly comprehensive wikipedia article. The basic idea is that one or more plaintiffs go to court, showing both an injury (in the legal sense of being worse off through a tortfeasoer's action or inaction), and the existence of a large class of 'similarly situated' plaintiffs. The class of deaf people would easily fit that description - deafness is something that's easy to define and not very controversial.

If the original plaintiff has standing, a trialable issue exists, and a class of similarly situated plaintiffs can be certified, then a jury trial takes place like it would for any other kind of tort case. If the defendant is found guilty, then economic and/or punitive damages are calculated, the defendant may agree to settle or appeal, and so on. If there is a settlement or award, then lawyers for the plaintiffs make reasonable efforts to contact the other similarly situated plaintiffs (by advertising in newspapers, magazines, or wherever else there's a good chance of reaching those people), who can either opt out of the settlement and preserve an individual right to sue, object to the terms, or do nothing and receive a coupon or some other benefit. Leftover monies that are unclaimed after distribution are usually donated to some charitable organization. Having a plan in place for the distribution and disposal of any settlement or award is one of the necessities for class certification.

Obviously, I am giving you a ridiculously simplified summary here. Entire books can be written on this subject. Class actions can be frivolous or abusive in some cases, but in general they are a good thing because otherwise it would be uneconomical for individual plaintiffs to sue as the cost of going to court would exceed any award they could possibly win, and so tortfeasors would have no incentive to accomodate their requests or settle with them.

I believe that at a minimum you must be given the opportunity to opt out. I've been a "member" of a class action suit on a couple of occasions. I only knew I was a member because mail showed up informing me that I was, and giving instructions on how to opt out. (which I did because I was entirely unaffected by the circumstances outlined in the suit)

Since our son was born, we had to turn down the volume of the TV and rely on the captions. Too bad sometimes even pre-recorded cable movie would not have them (SHO or Starz I think). Or broken captions (It could be our digital box, that's doing the rendering of the captions). I'm missing every 1 out of 10 captions while watching prerecorded Game Of Thrones on HBO.

Could someone sue Comcast so that I can turn on closed captions, without having to completely turn off the box, go to the offline menue, change to closed captions -- and then have to reverse the process to turn them off!?

I'm trying to understand why is so difficult for Netflix to add captions when sites like http://www.cuevana.tv have had subs for quite some time now.

Stream (at least one movie) on the Netflix iPad app gave me captions. I was really shocked to see it but pleased.

I think it was "Sabah" if anyone is checking.

It seems like captions are something that could so easily be crowd sourced.

How many times does each video on Netflix get watched? More than 1000? If just 1/1000 watchers is willing to transcribe the video, it's done. Hell, even starting bootstrapping the initial transcription with a speech recognition system would probably go a pretty long way.

You just need some clean UI and an easy way to have Wikipedia style edit logs/discussion pages.

Transcription isn't the hold up for Netflix.

The issue for Netflix is either embedding the transcript directly into the video (open captions) where you can't turn them off, or dynamically displaying a text stream via your device software, as a layer over the video.

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