Poisoning the Treaty for the Blind

See this piece by that title in the Huffington Post.  An excerpt:

For years, international negotiations have been moving forward on what many have come to know as the "Treaty for the Blind." The goal of the treaty is to make it possible for people who are blind, or have other print disabilities, to get access to the books they need for education, employment and inclusion in society--no matter where they live. It's something we already do, with great success, in the United States. Early versions of the treaty embodied this principle, and in addition, would ease the international transfer of accessible books for people with disabilities. 

In the end, a good treaty would mean real progress, and allow accessible books to reach millions of disabled people in other countries. Extending our own principles--that should be the United States' negotiating position. 

Now, the progress made is all in jeopardy. Private interests have been hard at work to insert poison pills in the treaty, such as provisions that make the treaty either unpalatable for many countries to sign on to it or too complex to implement. It's a terrible case of private interest trumping the public good.

LA Times on UC Berkeley Settlement

Nice article here.  It begins:

UC Berkeley is making its vast library collections and course textbooks more readily available to students with visual and other impairments under an agreement reached Tuesday that could set a precedent for universities nationwide.

The settlement with the nonprofit legal group Disability Rights Advocates was reached after more than a year of negotiations and will provide students with physical, developmental, learning and visual disabilities more timely access to printed materials in alternative formats such as Braille, large print and audio. 

The agreement is important because there are few standards required on such accessibility. The Americans with Disabilities Act, for example, doesn’t spell out what accommodations schools must make and includes a clause allowing schools not to make any concessions if costs create an undue burden, said Rebecca Williford, an attorney for the disability rights organization.

Important Settlement with UC Berkeley on Information Access for People with Print Disabilities

See this press release, which begins:

Disability Rights Advocates (DRA) and the University of California, Berkeley announced a settlement agreement today that will significantly improve information access for students with print related disabilities. The settlement puts in place a range of new policies and procedures to ensure that print disabled students have access to all of the written material students need to read to succeed in a university setting. The University’s Vice Chancellor for Equity and Inclusion Gibor Basri explained: “We live in the age of information. It is critical that students with print disabilities be able to take the same advantage of academic and employment opportunities as all Berkeley students.” 

DRA’s Executive Director Larry Paradis commented that “Disability Rights Advocates commends the University of California, Berkeley for implementing this new system to break down barriers to higher education. UC Berkeley has taken on an important leadership role in addressing the barriers that all too often cause difficulty for students with print disabilities. This settlement is a model plan that colleges and universities should consider adopting nationwide.”

Pleased with the experience of engaging in the one year structured negotiations process, Paul Hippolitus, Director, Disabled Students' Program remarked:“Throughout this process, I was especially proud of the University's leadership, as well as our students and their representatives, for holding the same values and principles of equity and inclusion for students with disabilities. As the birth place of the disability rights movement, UC Berkeley has had a long and illustrious history of supporting disability rights. With this agreement, a new chapter in this history has been written. This process has again reminded me of the value of disability advocacy efforts, such as those of DRA -- which help institutions reassess their position.”

Some key points of the settlement:

• Students who request course materials in alternative media can now expect to receive textbooks in 10 business days and course readers in 17 business days.
• The University has created and implemented a new Library print conversion system, the first of its kind in the nation, to enable students with print disabilities to request that a specific library book or journal be converted into an accessible digital format, with an average turnaround time of five business days.

Forthcoming Student Note on Internet Accessibility

New on SSRN: Courtney L. Burks, Improving Access to Commercial Websites Under the Americans with Disabilities Act and the Twenty-First Century Communications and Video Accessibility Act, Iowa Law Review, forthcoming.  The abstract:

In 1990, Congress enacted the Americans with Disabilities Act ("ADA") — one of the most comprehensive set of antidiscrimination laws to date. Title III of the ADA requires private businesses to make reasonable efforts to ensure that disabled individuals are able to access their "place[s] of public accommodation." However, as the internet has grown more ubiquitous in Americans’ lives, there have been debates whether a commercial website is a place of public accommodation under Title III. In order to help ensure that the disabled community is not left behind as the nation’s dependence on web-based technology increases, Congress enacted the Twenty-First Century Communications and Video Accessibility Act ("CVAA"). This Note examines conflicting interpretations of Title III, and how the CVAA may affect the ADA’s application to commercial websites. This Note concludes by arguing that a broad definition of “place of public accommodation” is in line with the history and purpose of the ADA, and federal regulations imposing uniform technical accessibility standards are needed in order to diminish the accessibility barriers to websites that fall within the scope of Title III.

NC Journal on Law and Technology on Possible New Web Access Regs

See this blog post, which jumps off from a Wall Street Journal article (behind pay wall) suggesting that DOJ may issue its long-awaited proposed internet accessibility regulations later this year.

Blind Government Attorney Sues Department of Homeland Security for Inaccessible Technology

Last week, the ace disability rights law firm of Brown, Goldstein & Levy filed this lawsuit in the United States District Court for the District of Columbia.  The plaintiff is Michael Leiterman, an attorney who has worked at the Department of Homeland Security since 2006.  The complaint alleges that Leiterman, who is blind and uses JAWS as a screen reader, has faced numerous barriers at work, including an inaccessible travel-booking system, inaccessible software, inaccessible intranet pages, an inaccessible telephone, inaccessible telecommuting technology, and inaccessible training modules.  As a consequence, Leiterman alleges, he was denied a promotion.  He claims that DHS's conduct in this regard violates his rights under Sections 501 and 508 of the Rehabilitation Act.  The Section 508 claim should be particularly interesting to watch.

Reid on How the DMCA Makes Digital Media Inaccessible

See this interesting Slate piece by Blake Reid.  Excerpts:

Making creative works accessible often involves transforming content from one medium to another—such as adapting the audio of a television show to closed captions to make it accessible to people who are deaf or hard of hearing. Copyright law ordinarily vests authors of creative works with the exclusive right to create adaptations, such as translations to foreign languages. But making works accessible to people with disabilities is arguably exempt from copyright law under the fair use doctrine and other laws like the Chafee Amendment to the Copyright Act. Congress, federal courts, the U.S. Copyright Office, and even the World Intellectual Property Organization have begun to recognize that it’s bad policy to block efforts to create accessible versions of copyrighted works. 

At least, that’s the case with physical and analog media. But publishers, video programmers, and other copyright owners lock down digital content with digital rights management technology designed to limit users’ ability to access, copy, and adapt copyrighted works to specific circumstances. And copyright owners frequently fail to account for the need to adapt DRM-encumbered works to make them accessible to people with disabilities. For example, e-books often include DRM technology that preventspeople who are blind or visually impaired from running e-books that they have lawfully purchased through a text-to-speech converter that reads the books aloud. Similarly, Internet-distributed video and DVD and Blu-ray discs include DRM features that prevent researchers from developing advanced closed captioning and video description technologies that make movies and television shows accessible. (For example, some Internet-delivered videos don't include closed captions at all, and subtitles on DVD and Blu-ray discs can be incomplete, riddled with errors, or so badly formatted that they can't be read.)

Bypassing this DRM technology is often trivial from a technical perspective. But the DMCA makes it illegal—even if the person bypassing DRM is doing so for a noninfringing use like making it accessible to people with disabilities. If you want to get around the DMCA, there is no fair use; instead, you must petition the librarian of Congress for a special exemption to circumvent a class of works, such as e-books. The proceeding to consider exemption petitions, known as the “triennial review,” takes place only once every three years and requires petitioners to navigate a complex bureaucratic process, satisfy an incredibly high burden of proof, invest months of effort, and overcome opposition from copyright lobbying groups with nearly bottomless resources. It’s no wonder the vast majority of exemption petitions are denied.

CNN Argues that Requiring Captioning of Web Videos Would Violate Free Speech

Alice Wong passes along this interesting story about a Ninth Circuit argument yesterday.  It begins:

The 9th Circuit pressed advocates for the deaf to explain how their demands for captioned videos on CNN's website supersede First Amendment media rights. 

Hoping to keep a jury from hearing claims that it discriminates against more than 100,000 deaf web surfers, CNN had sought relief under California's anti-SLAPP (strategic lawsuit against public participation) statute. Such laws allow for the early dismissal of claims that are designed to chill the exercise of First Amendment rights. 

It claimed that the lawsuit threatens its right to gather and disseminate news on matters of public interest, and that the disability advocates cannot establish a likelihood of success in the suit.

Student Note on Accessibility and Intellectual Property

Just out: Mary Bertlesman, The Fight for Accessible Formats: Technology as a Catalyst for a World Effort to Improve Accessibility Domestically, 27 Syracuse Sci. & Tech. L. Rep. 26 (2012).  The abstract:

This note addresses the proposed WIPO International Instrument on the Limitations and Exception for Persons with Print Disabilities. I conclude that the current growth in technology - making previously inaccessible works accessible -- calls for a change to current domestic copyright law and that ratification of the proposed treaty should be this change. 

The proposed treaty compliments the growth of adaptive technology and the need for accessibility by permitting the creation of limited types of derivative works; providing rights to circumvent technological protection measures; and granting the freedom of import and export of accessible works. Furthermore, the proposed treaty compliments current disability law in the sense that it mirrors the legislative intent to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities, including discrimination in access to information.

A Harsh Assessment of the Accessibility of the New Kindle Fire

See this post from the National Federation of the Blind.  The harsh conclusion:

Amazon needs to stop burning blind readers with these half-hearted attempts at accessibility in all versions of the Kindle, including the Fire. What is needed now is for it to implement real accessibility, rather than expecting blind readers to accept a cassette tape equivalent in an era of multi-purpose tablets.

Interesting Article on Implications of the Hathitrust Ruling

See this article, which begins:

While the verdict in the Authors Guild v. HathiTrust case has been widely hailed for its impact on how libraries can handle digitization for search, the findings on access for the print-disabled may lead to even more profound changes in practice. On an Association of Research Libraries (ARL) webcast, Daniel F. Goldstein, counsel of the National Federation of the Blind (NFB), said the decision could revolutionize university services to their blind and print disabled students. LJ caught up with Goldstein to explore in more detail what the verdict means and what role university libraries might play in implementing the changes. 

According to Goldstein, up until now, many colleges and universities have re-digitized the same books over and over, on demand, for each blind or print-disabled student that needs them. It’s a process that “presupposes semesters geological ages long… I’ve talked to a blind student some years ago at Princeton who got her first materials for her microbiology class three days before the final,” Goldstein told LJ. “By the time the blind student shows up, if you haven’t already made the information available, it is too late.” Universities followed this cumbersome procedure because they weren’t sure they were legally allowed to retain the scan. 

It also meant that there wasn’t time to do anything to improve the quality beyond the minimum, because “every semester the disabilities services office is like a baby garter snake trying to swallow a chicken,” said Goldstein. “If you take Great Expectations, it’s really easy to make an accessible copy. There’s no complicated layout: Dickens didn’t use footnotes, graphs, or sidebars. But the more complex the print book is, the harder it can be to create an accessible digital copy from a print copy,” Goldstein explained. Tagging of illustrations, for example, must be done by hand. 

Now that the HathiTrust verdict has held that digitizing works for the purpose of providing access to the blind and print-disabled is not only a fair but a transformative use, schools can feel safer hanging onto those scans until the next student who needs them comes along, and can spend their efforts on improving them or scanning more books, instead of doing the same bare minimum of texts over and over. And Goldstein believes making the text available to sighted persons to crowdsource the manual work would also be fair use.

National Federation of the Blind, Various Universities, Win Big Victory in Digitization Case

Read this post from Rebecca Rosen at the Atlantic.  It begins:

One of the biggest questions in copyright law today is what kinds of repurposing fall under the "fair use" exception. If a university scans a book and allows students to download it, is that a violation of copyright law? What if students can't download it, but can search through it? What if only certain students can download it? 

These questions are at the center of a lawsuit brought by a group of authors, The Authors Guild, and several other associations against HathiTrust, a massive repository of digital books, founded and supported by many of the country's leading universities. For a few years, Google has been scanning the books held in these universities' libraries, retaining a digital copy for itself (the contents of which fuel Google Books' "snippet view" we all know and love/hate), and providing another for the universities, which all students can search but whose entire texts are only available to students with visual disabilities who do not have access to printed works. If you're a student who can see just fine, a search of copyrighted works (which make up about three-quarters of the 10 million scanned books) will only provide you with a page number, and from there it's off to the hard copy for you. The universities, Google, and HathiTrust all keep full, digitized copies. 

Is this fair use? Yesterday, in a decisive, make-no-bones-about-it opinion, a federal court in New York said yes, this was quite fair indeed. Two lines of argument run through the court's reasoning: 1.) remaking a text for search constitutes a "transformative use" and therefore falls under fair use, and 2.) the Americans With Disabilities Act does not merely make this activity legal, it may even require it. (The full text of the opinion is available here.)

(I should note that one of the universities sued was the University of Michigan, my employer.)

For additional coverage, see this press release from NFB and this post from Wired.

Consent Decree Filed in Netflix Captioning Case

Wow.  This is a big deal.  My friends at DREDF just announced a consent decree in their case against Netflix.  The decree will provide for closed captioning in 100% of Netflix's streaming content within two years.  This is a major step toward fully opening up the internet's incredibly important space of entertainment and commerce to people with hearing impairments.  The press release:

Netflix Inc. and the National Association of the Deaf (NAD), a non- profit organization, have submitted a joint Consent Decree to a federal court in Springfield, Mass., ensuring closed captions in 100% of Netflix streaming content within two years.

NAD, along with the Western Massachusetts Association of the Deaf and Hearing- Impaired (WMAD/HI) and Lee Nettles, a deaf Massachusetts resident, brought suit against Netflix seeking that commitment in 2010.

The agreement indicates the parties’ mutual intent to increase access for people who are deaf and hard of hearing to movies and television streamed on the Internet. Netflix began its closed-captioning program in 2010. Netflix has increased captioning for 90% of the hours viewed but is now committed to focusing on covering all titles by captioning 100% of all content by 2014. Captions can be displayed on a majority of the more than 1,000 devices on which the service is available.

Howard A. Rosenblum, CEO of NAD, the lead plaintiff in this case, said, “The National Association of the Deaf congratulates Netflix for committing to 100% captioning, and is thrilled to announce that 48 million deaf and hard of hearing people will be able to fully access Netflix’s Watch Instantly services.”

“We have worked consistently to make the broadest possible selection of titles available to Netflix members who are deaf or hard of hearing and are far and away the industry leader in doing so,” said Neil Hunt, Netflix Chief Product Officer. “We are pleased to


have reached this agreement and hope it serves as a benchmark for other providers of streaming video entertainment.”

Netflix will also improve its interface so that subscribers will be better able to identify content that has been captioned in the period until 100% captioning is achieved. The parties have asked the court to maintain jurisdiction of the case for four years to assure compliance with the terms of the Decree, and plaintiffs will monitor Netflix’s progress.

“We’re so pleased that Netflix worked jointly with plaintiffs to devise a reasonable and workable way to achieve 100% captioning. The Decree is a model for the streaming entertainment industry,” said Arlene Mayerson, Disability Rights Education & Defense Fund's Directing Attorney. “DREDF hopes that this is the beginning of opening the Internet for deaf and hard of hearing individuals in streamed entertainment, education, government benefits, and more.”

Seven Credit Unions Sued for Inaccessible ATMs

See this article, which begins:

A Pittsburgh attorney, on behalf of three blind clients, has sued seven credit unions and several more banks, claiming their ATMs don’t comply with the Americans with Disabilities Act’s standards for accessible design. 

And, according to court documents filed by attorney R. Bruce Carlson, the lack of compliance is widespread despite a March 15 deadline to comply with the 2010 rules. Carlson cited in court documents a March 7 Wall Street Journal article that said at least 50% of all ATMs in the U.S. are inaccessible to blind individuals. 

Credit unions sued by Carlson are the $131 million Century Heritage FCU of Pittsburgh, the $203 million USX FCU of Cranberry Township, Pa.; the $1.2 billion American Heritage FCU of Philadelphia; the $415 million Primeway FCU of Houston, the $1.6 billion JSC Federal Credit Union of Houston; the $412 million Members Choice CU of Houston; and the $1.5 billion Premier America CU of Chatsworth, Calif. All suits were filed after March 15.

Cinemark Agrees to Provide Audio Description at All First-Run Theaters

Linda Dardarian passes along this press release, announcing a very big deal.  It begins:

Cinemark Holdings, Inc. (NYSE: CNK), one of the world’s largest motion picture exhibitors, today announced that it is providing an audio description option for people who are blind or have visual impairments in all of its first-run theatres. Cinemark is installing audio description systems on a rolling basis across its circuit in conjunction with the chain’s conversion to an all-digital format. Installation is already well under way, and all of Cinemark’s theaters in California already have audio description capability. Cinemark will be able to offer audio description at all of its first-run theaters by mid 2013. 

In audio description (also known as descriptive narration) a narrator provides vocal description of key visual aspects of a movie, such as descriptions of scenery, facial expressions, costumes, action settings, and scene changes, described audibly during natural pauses in dialogue or critical sound elements. Narration of these elements is then woven into the soundtrack of the program or film, so that the finished version is a mix of program audio and descriptive narration. The description, which is provided by movie studios, is available only to members of the audience who choose to receive it via personal headsets and a receiver provided at the theater. 

The California Council of the Blind (CCB), a consumer advocacy organization of people who are blind and visually impaired, and individual blind Cinemark movie patrons applauded Cinemark’s commitment. Cinemark has worked closely with CCB and individual patrons with visual impairments on its audio description initiative.

The full settlement agreement is here.

Eleventh Circuit Overrules Objections to Disney Segway Class Action Settlement

A few days ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Ault v. Walt Disney World Co..  The case was brought as a class action to challenge Disney's refusal to permit Segways in its facilities.  After some back and forth, the district court certified a settlement-only class of everyone with a mobility impairment or disability who has brought, intends to bring, or may bring in the future a Segway into one of the Disney Resorts (including Disneyland, Disney World, and other Disney facilities).  And the district court approved a class settlement under which Disney would continue to refuse to permit Segways.  In that settlement, Disney agreed to "develop a four-wheeled, electric-stand up-vehicle ('the ESV') for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."  Notably, Disney committed only to provide 15 of these ESVs, and the terms of the settlement permitted Disney to charge patrons with disabilities for renting them.  The settlement also included "a nationwide waiver of declaratory or injunctive claims relating to Disney’s policy."  The case was certified as an injunctive class action under Federal Rule of Civil Procedure 23(b)(2); class members thus were not permitted to opt out of the class or the settlement.

A number of individuals with disabilities, organizations, state attorneys general, and the United States objected to the settlement.  (Disclosure: I supervised the relevant section of the Civil Rights Division at the Department of Justice during part of the time this litigation proceeded, and I had some involvement with the case in that capacity, though I was gone from the Department by the time the United States filed its brief on appeal.)  The district court overruled the objections and approved the settlement, and various objectors appealed.  In its opinion last week, the Eleventh Circuit affirmed.

In an opinion by Chief Judge Joel Dubina, the Eleventh Circuit first rejected the objectors' challenges to the class certification.  The objectors argued that the named plaintiffs' claims were not typical of those of the class, because the named plaintiffs only occasionally used Segways for mobility.  Myany absent members of the class, by contrast, rely on the Segway as their primary mobility aid.  The Eleventh Circuit waved this argument off:

Class members’ claims all stem from the same policy prohibiting the use of Segways® within Disney Resorts, and all claims require analysis of Title III to determine the outcome. While each class member may have a stronger or weaker claim depending upon his or her degree of reliance, we conclude that this alone does not make class representatives’ claims atypical of the class as a whole.

The Eleventh Circuit then turned to the question whether the district court abused its discretion in determining that the settlement was fair, adequate, and reasonable (the showing required for a settlement of a class action).  The appellate court found no abuse of discretion, because it concluded that the plaintiffs would have been unlikely to prevail if the case had been tried to a final judgment:

During an extensive fairness hearing before the district court, Hale [Disney's Chief Safety Officer] testified regarding the safety risks posed by the operation of Segways® in Disney Resorts. The very factors Hale considered before deciding that Segways® are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v) (requiring a public accommodation to consider the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safety restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility). The district court found that based upon this testimony Disney is likely to succeed at trial in showing that it has fulfilled its obligations under Title III. Objectors and the DOJ would like us to hold that this finding constitutes an abuse of discretion. We decline to do so. The issue before us is not who prevails over whom, but rather, the question is whether the district court abused its discretion in its finding regarding who was most likely to prevail at trial. We conclude from the record that there is no abuse of discretion.

The court also noted in a footnote that the Ninth Circuit had recently permitted an ADA challenge to Disney's exclusion of Segways to proceed.  (I blogged about that case here.)  But it distinguished that case on the ground that the Ninth Circuit hadn't reached the question whether there was a legitimate safety basis for Disney's policy.

A few quick points about this decision:

1.  The settlement here was extremely problematic on class action grounds.  The district court heard substantial testimony that the ESV -- the Disney-created alternative to the Segway -- just would not work for a number of the absent class members due to their height or the nature of their disabilities.  And many of the absent class members, unlike the named class members, use the Segway as their principal means of getting around.  Yet this class action settlement, brought by named plaintiffs whose disabilities were substantially different from the disabilities of that set of absent class members, forecloses those absent class members from challenging the no-Segway policy and provides them nothing.  That's a typicality/adequacy-of-representation problem if I ever heard one.

2.  In concluding that Disney would likely have prevailed on its safety defense if the case had gone to trial, the Eleventh Circuit completely failed to engage the analysis of the Department of Justice, which drafted and enforces the relevant ADA regulation:

The relevant question under the regulation is not whether “unrestricted” Segway use would raise safety concerns, see R.208 at 124, but “[w]hether legitimate safety requirements can be established to permit the safe operation of [Segways] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv). The regulation permits a public accommodation to impose reasonable time, place, or manner restrictions on the use of OPDMDs to ensure safe operation. See 28 C.F.R. 36.311(b)(2); 75 Fed. Reg. at 56,299. Specifically, the regulation prescribes several factors that a public accommodation must consider in determining whether permitting use of a particular class of OPDMDs is safe and reasonable. See 28 C.F.R. 36.311(b)(2). Among those factors are the vehicle’s speed, the design and operational characteristics of the facility, and the volume of pedestrian traffic, including variations in such volume during the day, week, month, or year. 28 C.F.R. 36.311(b)(2)(i), (ii), & (iii). In its commentary interpreting the regulation, the Department explained that “[o]f course, public accommodations may enforce legitimate safety rules established for the operation of [OPDMDs] (e.g., reasonable speed restrictions).” 75 Fed. Reg. at 56,299. The Department further emphasized that “public accommodations should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public accommodations should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device.” Ibid.

Other safety-related restrictions may be permissible, depending on the circumstances and the particular facility. For example, Segway users may be required to use elevators, but not escalators, to move between floors, and they may be banned from using cell phones or headphones while operating Segways. See McElroy v. Simon Prop. Grp., Inc., No. 08-4041-RDR, 2008 WL 4277716, at *5, *7 (D. Kan. Sept. 15, 2008) (upholding such restrictions imposed by a shopping mall). It may also be reasonable in some facilities to temporarily suspend Segway use during periods of heavy crowds until the congestion clears. See ibid. And in some circumstances, a public accommodation might legitimately require an individual with a disability to perform a brief field test to show his ability to maneuver a Segway prior to using it in the public accommodation’s facility, particularly if the individual wishes to use the Segway when the facility is especially crowded.

Disney also failed to present a facility-specific analysis to establish the safety defense. As noted, the relevant inquiry is “[w]hether legitimate safety requirements can be established to permit the safe operation of the [OPDMDs] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv) (emphasis added); accord 75 Fed. Reg. at 56,299. “Facility” is broadly defined to include “any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. 36.104.

Even if legitimate safety concerns might justify a ban (or partial ban) on Segway use at one Disney facility, those concerns would not necessarily mean that Disney could establish a valid safety defense for other facilities that differ in size, configuration, or levels of pedestrian traffic. Disney’s Segway ban applies to a wide variety of facilities within its resorts, including six theme parks (and the multiple facilities found in each park), hotel complexes, restaurants, shopping districts, and individual stores. R.208 at 124-126. Disney’s evidence of Segways’ purported safety risk was limited the devices’ use at its theme parks. E.g., R.208 at 92, 94-95, 110-111; R.209 at 301-302. Disney’s general assertion that Segways, by design, pose a risk in a crowded venue is insufficient to establish that at every time of day, every day, all of Disney’s facilities have a crowd capacity that would preclude the safe operation of Segways. See R.208 at 77-78, 80-81, 88, 115-116. The district court thus erred in concluding that Disney’s evidence “likely” would establish this safety defense. R.252 at 8.

3.  Finally, even if this decision does not formally conflict with the Ninth Circuit's recent decision, the breadth of the class approved by the Eleventh Circuit, and of the release of claims in this settlement, creates a serious practical impediment to other cases challenging Disney's no-Segway policy.  I doubt this decision is the last word we'll hear on the matter.

DOJ and NFB Reach Settlement with Sacramento Public Library Over Inaccessible E-Readers

See Wednesday's DOJ press release, which begins:

The Justice Department announced today that it and the National Federation of the Blind have reached a settlement with the Sacramento Public Library Authority in Sacramento, Calif., to remedy alleged violations of the Americans with Disabilities Act (ADA). The agreement resolves allegations that the library violated the ADA by using inaccessible Barnes & Noble NOOK electronic reader devices in a patron lending program.

Under the settlement agreement, the library will not acquire any additional e-readers for patron use that exclude persons who are blind or others with disabilities who need accessible features such as text-to-speech functions or the ability to access menus through audio or tactile options. The library has also agreed to acquire at least 18 e-readers that are accessible to persons with disabilities. The settlement agreement also requires the library to train its staff on the requirements of the ADA.

“Emerging technologies like e-readers are changing the way we interact with the world around us and we need to ensure that people with disabilities are not excluded from the programs where these devices are used,” said Assistant Attorney General Thomas E. Perez.

Here's the NFB press release:

The National Federation of the Blind (NFB), the nation’s leading advocate for access to information by the blind and other people with print disabilities, announced today that a complaint filed by the NFB with the United States Department of Justice, Office of Civil Rights, against the Sacramento Public Library Authority has been resolved. The NFB filed the complaint last fall because the library was lending NOOK e-readers preloaded with e-books to its patrons. Unlike some other e-reading devices, the NOOK, which is manufactured and sold by Barnes & Noble,cannot be used by blind and print-disabled readers because it does not have text-to-speech capability or the ability to send content to a Braille display.

The goal of the agreement is “to provide a library e-reader circulation program where library patrons, with and without vision disabilities, are able to access and use the same technology to the maximum extent possible.” Under the agreement, the library will “acquire only technology that does not exclude persons who are blind or others” who need accessibility features such as text-to-speech or Braille output and the ability to access the device’s menus and controls independently. The library’s commitment is also in line with a resolution passed in 2009 by the American Library Association entitled Purchasing of Accessible Electronic Resources, which urged “all libraries purchasing, procuring, using, maintaining and contracting for electronic resources and services” to “require vendors to guarantee that products and services comply with Section 508 regulations, Web Content Accessibility Guidelines 2.0, or other applicable accessibility standards and guidelines.” 

Dr. Marc Maurer, President of the National Federation of the Blind, said: “We are pleased that the Sacramento Public Library Authority is showing leadership by ensuring that the e-books that it lends will be accessible to all of its patrons, including those who are blind or have print disabilities. E-books represent an opportunity for the blind to have access to the same books at the same time as our sighted friends, family, and colleagues, but sadly most e-book vendors have not designed their technology so that it can be used by the blind, despite the fact that it is not difficult or costly to do so. Libraries, schools, and other institutions have a legal and moral obligation to make sure that the content they deploy is accessible to the blind and print-disabled. If they meet these obligations by demanding accessibility from their e-book vendors, then accessibility will happen.”

The settlement is here.  This is a big deal in the efforts both DOJ and NFB have taken to ensure the use of accessible e-reader technology by ADA-covered entities.

Disability Advocates Question Accessibility of New Metro SmarTrip Dispensers

See this article by that title in the Washington Post.  It begins:

Advocates for people with disabilities say Metro’s plans to make SmarTrip cards more accessible to riders by installing new vending machines at every rail station fall short in one crucial area: The new machines are not expected to be immediately accessible to all people with limited vision. 

The machines, which are scheduled to make their debut Sept. 1, have no audio feature. Riders who are blind or have impaired vision or those with cognitive impairments may find them difficult, if not impossible, to use, disability advocates said. 

“In this day and time I can’t imagine how. . . the Metro system [is] purchasing things and then . . . installing them and paying for them and they are not accessible to everyone,” said Denise Rush, who is blind and serves on Metro’s Accessibility Advisory Committee (AAC). “It is not acceptable. It is ludicrous.”

SoMeLaw Blog on Netflix

The social media law blog SoMeLaw Thoughts has this interesting commentary on the Netflix decision, about which I've blogged a couple of times.  An excerpt:

Given the uncertain nature of the law and the regulations so far, what does this tell us about whether corporations and individuals should spend the time including captions on online videos? My take is that it’s a good idea to do so now. Partly because it’s the right thing to do, and partly because most courts are going to be sympathetic to entities who have made at least a good-faith effort to provide captioning. 

Captioning is time-consuming, and can be expensive (and real-time captioning for webinars and suchlike is even more expensive). But it’s not difficult anymore. YouTube’s voice-recognition capability makes the process more like editing and less like transcribing. Not to mention that captioning adds value in terms of SEO (which is why YouTube does it). And captioning makes your video more inclusive, and I think we can all agree that that is a good thing. And I also think we can all agree that it’s just wrong to make cats dress up in Renaissance fair costumes and lip-sync to Katy Perry songs.

Eric Goldman Doesn't Like the Netflix Decision

See this post on Ars Technica by law professor Eric Goldman.  A couple of points.  First, one can search Professor Goldman's post in vain for any acknowledgment of the basic, brute fact here -- that inaccessible websites mean that people with various disabilities are shut off from the important aspects of civic and economic life that, more and more, take place on the internet.  Applying the ADA to demand accessibility of websites does nothing more than serve the statute's basic purpose.  Second, I'm not quite sure why Professor Goldman thinks that people will make "buckets of money" suing internet companies under a statute that doesn't provide for a damages remedy, or why he thinks it was so problematic for the District of Massachusetts (which is in the First Circuit) to follow the First Circuit's Carparts precedent, however "heavily-criticized" he thinks that precedent is.  In any event, as the Department of Justice's ANPRM on web accessibility explained a couple of years ago, the Department has long taken the position that Title III of the ADA applies to the websites of public accommodations:

The Department has also repeatedly affirmed the application of title III to websites of public accommodations. The Department first made this position public in a 1996 letter from Assistant Attorney General Deval Patrick responding to an inquiry by Senator Tom Harkin regarding the accessibility of websites to individuals with visual disabilities. See Letter from Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996), available at www.justice.gov/crt/foia/tal712.txt. The letter has been widely cited as a statement of the Department´s position. The letter does not, however, state whether entities doing business exclusively on the Internet are covered by the ADA. 

In 2000, the Department filed an amicus brief in the Fifth Circuit in Hooks v. OKbridge, Inc., which involved a Web-only business. The Department´s brief explained that a business providing services solely over the Internet is subject to the ADA´s prohibitions on discrimination on the basis of disability. See Brief of the United States as Amicus Curiae in Support of Appellant, 232 F.3d 208 (5th Cir. 2000) (No. 99-50891), 1999 WL 33806215, available at www.justice.gov/crt/briefs/hooks.htm. In a 2002 amicus brief in the Eleventh Circuit in Rendon v. Valleycrest Productions, Inc., the Department argued against a requirement, imposed outside of the Internet context by some Federal courts of appeals, that there be a nexus between a challenged activity and a private entity´s "brick-and-mortar" facility to obtain coverage under title III. See Brief for the United States as Amicus Curiae in Support of Appellant, 294 F.3d 1279 (11th Cir. 2002) (No. 01-11197), 2001 WL 34094038, available at www.justice.gov/crt/briefs/rendon.htm. Although Rendon did not involve website access, the Department´s brief argued that title III applies to any activity or service offered by a public accommodation, on or off the premises.

So the Netflix case is not some surprising new development.  To be sure, as the ANPRM acknowledged, the cases do not speak with one voice on this question:

While some actions have been brought regarding access to websites under the ADA that have resulted in courts finding liability or in the parties agreeing to a settlement to make the subject websites accessible, a clear requirement that provides the disability community consistent access to websites and covered entities clear guidance on what is required under the ADA does not exist. See generally, Target, 452 F. Supp. 2d 946; Amazon.com and National Federation of the Blind Join Forces to Develop and Promote Web Accessibility (Mar. 28, 2007), www.nfb.org/nfb/NewsBot.asp?MODE=VIEW&ID=174 (last visited June 29, 2010); Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired (Aug. 2004), www.ag.ny.gov/media_center/2004/aug/aug19a_04.html (last visited June 29, 2010). Two independent Federal agencies have also formally called on the Department to revise its regulations to make clear that the websites of entities covered under title III are subject to the ADA. See Federal Communications Commission, Recommendation 9.10, National Broadband Plan (Mar. 16, 2010), available at www.broadband.gov/plan (last visited June 29, 2010) ("The DOJ should amend its regulations to clarify the obligations of commercial establishments under title III of the Americans with Disabilities Act with respect to commercial websites"); National Council on Disability, The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination (Dec. 19, 2006), available at www.ncd.gov/newsroom/publications/2006/discrimination.htm (last visited June 29, 2010) (urging the Department to clarify the ADA´s coverage of websites of title III entities). Although the Department has been clear that the ADA applies to websites of private entities that meet the definition of "public accommodations," inconsistent court decisions, differing standards for determining Web accessibility, and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by title III.

The regulatory process is the ideal place to address the various questions of how to implement the ADA with respect to the website of public accommodations.  (I should note as a matter of full disclosure that I was the political appointee in the DOJ Civil Rights Division who supervised disability rights matter when the web ANPRM was issued.)  But, according to DOJ's longstanding interpretation, which finds support in controlling precedent in the First Circuit, the statute applies of its own force right now.  All the NAD is doing in the Netflix case is enforcing that statute.