by Michael S. Kaplan, published on 2012/06/21 07:01 -04:00, original URI: http://blogs.msdn.com/b/michkap/archive/2012/06/21/10322443.aspx
People who know me know that I am not the biggest fan of the ADA -- the Americans with Disabilities Act.
Not because I think it goes too far, mind you.
But because its language has been so thematically restrictive that it is so commonly co-opted to describe limits on how far one has to go to support accessibility.
Although applied broadly by lawmakers, it is applied narrowly by all the people who would rather avoid the extra effort.
it is the inspiration behind the NOT MEDICALLY NECESSARY language created by lawyers for letters signed by doctors who work for insurance companies, like I hinted at previously here.
An analogous narrow reading of the ADA was probably behind NetFlix's lame position about the need to provide captioning for their content -- the argument that the ADA applies only to physical places and therefore could not apply to website-only businesses like Netflix’s “Watch Instantly” streaming service.
They probably wouldn't be moved by arguments like this one:
However, there was at least one person in a position to correct the company's narrow reading of the Americans with Disabilities Act.
A Federal judge. :-)
As the National Association of the Deaf posting titled Landmark Precedent in NAD vs. Netflix indicates:
Judge Ponsor denied defendant Netflix’s Motion for Judgment on the Pleadings seeking dismissal of the case. The District Court of Massachusetts is the first court in the country to hold that the Americans with Disabilities Act (“ADA”) applies to website-only businesses. The underlying lawsuit alleges that Netflix violates the ADA by failing to provide closed captioning on most of its “Watch Instantly” programming streamed on the Internet, thereby denying equal access to the deaf and hard of hearing community.
Netflix argued that the ADA applies only to physical places and therefore could not apply to website-only businesses like Netflix’s “Watch Instantly” streaming service. Judge Ponsor denied the motion, stating that it would be “irrational to conclude” that: “places of public accommodation are limited to actual physical structures…In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.” Moreover, Judge Ponsor stated that the fact that the ADA “does not include web-based services as a specific example of a public accommodation is irrelevant” since such web-based services did not exist when the ADA was passed in 1990 and because “the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.”
It's funny how so many court cases go in this direction -- and how many updates to the law have.
So the legislature routinely takes an open view.
And the judiciary often ends up taking this view as well.
It is mostly the people in the big companies who look at the ADA as costs to be avoided whenever there may be a legal justification to do so who want to block this progress.
It almost makes me sad that I used a simple appeal to get my own iBOT when Premera Blue Cross originally denied it (as I described here), and then in the reconsideration made it clear that it was not a policy change.
Even though such a change might have knocked over this flimsy legal manuever and replaced it with something better.
Perhaps if I had fought for broader recognition of the inherent flaws in the "NOT MEDICALLY NECESSARILY" approach, I could have had a landmark precedent of my own!
Now I did say it almost makes me sad -- because had I pursued such a case, then I probably would never have gotten my iBot, even if I won the case.
A tremendous moral victory, to be sure. But I'm not that moral, you know?
Or maybe I'm too lazy to go that route. I'm much more the stuff of winning small battles and enjoying the spoils than of fighting big battles and bringing society forward. :-)
Thankfully, there are organizations like the National Association of the Deaf that take the wider view than I.
Between the legislation Congress has already started on during the last few years regarding online captions and precedents like this ruling, people are being forced to start treating more people like people.
Kind of The Best Of Times....
To be continued, tomorrow!
Mark on 21 Jun 2012 9:41 AM:
If I understand correctly, the closed-captions are not in the content provided by the movie studios, etc.
If it were, and netflix were stripping it out (or refusing to write software to pass it along), I could see that netflix would be in violation.
But if not, why is netflix suddenly responsible for hiring armys of people to watch movies and transcribe the dialog? Why not the movie studios who produced the content in the first place? Don't they violate the ADA by selling DVDs without captions? Or, for that matter, since voice recognition software is improving, why aren't TV manufacturers responsible for including auto-captioning software, so that all their customers can enjoy watching TV?
It seems odd to pick one company in a long chain and make it their responsibility.
Michael S. Kaplan on 21 Jun 2012 4:32 PM:
It is not just NetFlix -- Google is under pressure to provide captioning in YouTube videos, for example.
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