Professor Eric Goldman is quite reasonably worried about a recent ruling in a case the National Assocation of the Deaf brought against Netflix, claiming it was a violation of the Americans with Disabilities Act (ADA) to not have closed captioning. Never mind the fact that this flies in the face of a ton of precedent (none of which is cited). Goldman is reasonably concerned that this could have a massive impact on all kinds of websites:

If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I’m not creative enough to think of all the implications, but I can assure you that ADA plaintiffs’ lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

The key issue is whether or not a website is a place of public accommodation, which this court ruled it was, despite plenty of other rulings that went the other way:

The most crucial ruling is where the court says that a website qualifies as a “place of public accommodation.” The court deviated from–and, incredibly, didn’t cite to–a nearly unbroken line of precedent rejecting that conclusion. I don’t have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target’s obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn’t had much of an impact on Internet litigation over the past 6 years.

Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily-criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge’s ruling.

Of course, some have pointed out in response that this isn’t that big of a deal, because of the ADA’s “undue hardship” clause, which lets companies avoid accommodating the ADA if it presents an “undue hardship.” While that may limit the most egregious cases, it still creates a ton of problems. The “undue hardship” clause is only a defense, and it’s judged on a case-by-case basis, where the standards are incredibly vague and it has been described as a high bar to meet. Plus, the entire burden is put on the company (in this case, website), so there will likely be tons of lawsuits against websites until the actual standard for what counts as “undue hardship” is cleared up.

Even more insane in all of this is the one issue that Goldman only briefly alluded to in his piece: the requirement for closed captioning presents a massive potential copyright issue. We’ve seen people get in trouble for providing subtitles already. So suddenly this creates a damned if you do, damned if you don’t situation: provide closed captioning and get sued for copyright infringement, or don’t and get sued for ADA violations. Is copyright infringement (and a possible lawsuit?) an “undue hardship?” Who knows.

Of course, the paragraph above points out another issue with this ruling: that this is really an issue for the movie studios, not Netflix. Blaming Netflix is blaming the wrong party. Of course, the judge didn’t seem to care about that. When Netflix raised that issue, the judge said that “this argument lacks traction” because the judge has already decided that Netflix is a place of public accommodation, and that’s all that matters.

Hopefully Netflix successfully appeals this ruling. Otherwise, we’re about to be in for a whole bunch of ADA claims against websites until the “boundaries” are worked out. For lots of small websites, such lawsuits could be extremely expensive and damaging.

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