July 16, 2012
While browsing news articles on the Internet last week, I came across a Forbes piece entitled, A Judge Just Broke The Internet.
I immediately panicked.
I thought, “If the Internet’s not around anymore, I’ll have to go to the law library to do legal research!”
Then I realized that the article was posted on the Internet, so the web was still alive and well.
Still, the title, though somewhat misleading, had piqued my interest nonetheless.
Upon reading it, I discovered that the judge that “broke the Internet” had, according to the article, done so with a ruling in a case I wrote about over a year ago.
That case was the National Association for the Deaf (NAD) suing Netflix over the latter’s lack of closed captioning content in its “Watch Instantly” service.
I learned from the article that the ruling recognized websites as “places of public accommodation” under the Americans with Disabilities Act (ADA) – meaning that websites would be required to be accessible to the disabled.
The Forbes piece didn’t actually have a legal analysis of the ruling, though.
It just waxed on in an almost absurdly alarmist fashion about how the ruling would lead to every website in the world being sued for not being accessible to the blind.
The legal analysis on which the Forbes article was based is found on a post in Eric Goldman’s Technology & Marketing Law Blog, which I checked out shortly after finishing with the Forbes piece.
Though not quite as doomsaying as the article I just came from, Goldman minced no words describing just how wrong this ruling was, and how it was going to open the “floodgates…for ADA claims against websites.”
“Wow, this must have been one terrible ruling,” I thought.
So, I checked it out on Westlaw.
I was more than a bit surprised by what I found, though.
First of all, the ruling was only on a Rule 12(c) motion for judgment on the pleadings (made only on the pleadings without any evidence).
These rulings (as opposed to final judgments) are rarely cited as precedent.
So this ruling, by itself, isn’t going to open the “floodgates” for anything.
Secondly, despite Goldman’s insistence that that court went against established precedent to make the determination about websites being a place of public accommodation, it really didn’t.
True, there are certainly cases that held that “places of public accommodation” must be actual physical locations, but every one of them is from a different circuit than the Netflix case.
Though such cases can certainly be persuasive, the court is bound by a decision from the court of appeals within its own circuit.
Which case is that?
Yeah, it’s from 1994 – before the Internet came into wide public use – but that doesn’t change the fact that it explicitly holds that “places of public accommodation” are “not so…limited to actual physical structures.”
Since the ruling is in direct conflict with the decisions of other circuits, the court in the Netflix case was bound by precedent to disregard other circuits’ findings that such places must be physical locations.
Admittedly, the court did extend the Carparts ruling to include websites, but, given the discussion in Carparts, such an extension seems completely supported by the logic of the 1994 ruling.
Regardless of the legal accuracy of the ruling, does such a finding warrant the hysterical reactions about its effect on the Internet at large?
There may be some ripples, but not the tidal wave predicted.
The ADA could never be construed to require accommodations for the blind on the Internet, since that would be “unduly burdensome” under the ADA (I don’t really think I need to explain why).
We may be getting more than a little ahead of ourselves here, though.
The ruling only held that the pleadings were sufficient enough that the suit may proceed.
Considering that a successful ADA claim here would require a showing that Netflix “specifically controls the modification of the [things at issue] to improve their accessibility to the disabled,” I highly doubt that this claim will be successful.
Though the court accepted Netflix’s assertion that “it is working to provide captioning for the content on Watch Instantly” as sufficient to pass the initial pleading stages of the issue of control, it also gave Netflix a generous gift:
There is currently no evidence before the court concerning how much of the streaming content and associated copyrights [Netflix] owns, what the terms of [Netflix]‘s agreements with other copyright owners may be (including whether [Netflix] already has permission to caption content), and whether content is delivered to [Netflix] with or without captioning. This issue may be revisited on a motion for summary judgment. [emphasis added]
In other words, the court said that if Netflix can show that the content isn’t delivered to it with closed captioning, and that it doesn’t have permission to provide the closed captioning, it doesn’t have control over the “things at issue,”
Considering that both of these things are true, Netflix would likely prevail in a motion for summary judgment.
And that would be the end of it.
So could everyone please stop freaking out over nothing?