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ADA May Force Netflix To Provide Closed Captioning On Content 694

Shivetya writes "Last year Netflix was sued by the National Association for the Deaf for failing to provide closed captioned text through its on-demand streaming service. Now, a judge has denied Netflix's attempt to have the suit thrown out, saying that the Americans with Disabilities Act prohibits discrimination in any venue — not just physical structures. The easiest means to comply would be to remove all videos which do not have a closed captioning component, the other route would require Netflix to pay to have this done to any video it wants to provide. The implications to other providers is immense as well. The plaintiffs will still need to prove that Netflix is legally obligated to provide closed-captioning, but the ruling is still significant for recognizing that Internet sites may fall under the purview of the Americans with Disabilities Act."
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ADA May Force Netflix To Provide Closed Captioning On Content

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  • Mixed feelings (Score:5, Insightful)

    by Anonymous Coward on Tuesday June 26, 2012 @08:03PM (#40460629)

    On one hand this sucks. The amount of revenue you bring in by making your content accessible is not going to pay the cost of doing so. Same can be said with making websites accessible to the blind (and really probably most brick n’ mortar establishments.. especially if retrofit).

    On the other hand that’s part of living in a civilized society. Most of us could easily by freak accident be in a position where we’d want these services... and doing non-profitable stuff like this just becomes another cost of business.

    The implications on other content and especially user supplied content where no/very little revenue is being generated are of course the most scary. Where do you (or do you) draw the line between content that is “real” enough to require closed captioning (commercial productions, movies, etc..), and content that doesn’t (videos taken on cell phones, etc..).

    The obvious answer would be monetization. If the video author isn’t getting money, the requirement goes away. But trying to turn that into a concrete policy becomes very mucky, as sites like youtube are profiting from it either directly from ad revenue, or indirectly through increased traffic/draw to their site.

  • by cpu6502 ( 1960974 ) on Tuesday June 26, 2012 @08:08PM (#40460675)

    I can't figure out how the Congress has power to regulate private businesses and impose the ADA. Maybe it's through the corporate licensing.
    Yes the Federal Communications Commission (FCC) ruled long-ago that broadcast TV must carry closed captioning. Then they extended it to cable TV (by what authority I have no idea). Including captioning on netflix really isn't a big deal..... it's encoded in the video steams of VHS tapes, DVDs, and Blurays so netflix just needs to dump that CC to the internet stream.

  • Youtube? (Score:5, Insightful)

    by 24-bit Voxel ( 672674 ) on Tuesday June 26, 2012 @08:08PM (#40460677) Journal

    Would this include YouTube?

  • Re:Mixed feelings (Score:5, Insightful)

    by ganjadude ( 952775 ) on Tuesday June 26, 2012 @08:09PM (#40460681) Homepage
    well we could take it to the next logical step, What about blind people? we need to make sure blind people can access the internet and "watch" their videos as well!

    I am all for "fair access" but if the CC was not made available by the content maker, than how is it netflixes fault for not having them? Shouldnt the judge be charging the movie maker for not providing CC to begin with??
  • by Anrego ( 830717 ) * on Tuesday June 26, 2012 @08:10PM (#40460691)

    Probably because they wouldn't do it at all.

    Like everything else, we can't seem to find a happy medium. Making something (anything) accessible is almost always a financial loss. You spend thousands of dollars adding ramps, special bathrooms, etc and might gain 4 new customers.. you add CC to a video and again, you probably won't draw enough extra traffic to pay the cost of doing so.

    We have decided as a society that simply having no accessibility is unacceptable. So we have to bite the bullet and call it a cost of business. Unfortunately as usual, we went to far.. and now as you said, we end up putting unreasonable burdens on people for very little benifit.

  • Re:Mixed feelings (Score:4, Insightful)

    by Lumpy ( 12016 ) on Tuesday June 26, 2012 @08:13PM (#40460727) Homepage

    "On one hand this sucks. The amount of revenue you bring in by making your content accessible is not going to pay the cost of doing so."

    HUH? The Subtitles are on the DVD's they are ripping to create their content. It costs them nothing to send a fricking text stream.

  • by sideslash ( 1865434 ) on Tuesday June 26, 2012 @08:15PM (#40460743)
    There are a lot of people who would participate in typing up the CC track for movies, especially if it was allowed to be copied around for noncommercial use. Unfortunately, I seriously doubt that the MPAA would allow it, for the same reason they don't want you to rip your own DVD for backup purposes -- their policies are directed by lawyers whose priorities rarely overlap with what's good for consumers. If they could sue the IMDB project, they probably would.
  • by rahvin112 ( 446269 ) on Tuesday June 26, 2012 @08:17PM (#40460761)

    Deaf "Culture" will be gone in a generation.

    The vast majority of children born deaf are receiving cochlear implants before the nerves degrade. This is rapidly degrading the number of deaf children. Over the long term I fully expect enrollment in deaf schools and existence of deaf culture to disappear with the only remaining deaf people being those that were afflicted by the condition later in life. Though even that is not certain, it takes several years of hearing loss before the nerves die and the body re-purposes resources so anyone that is caused to go deaf later in life will probably receive cochlear implants as well. As the technology of cochlear implants improves there will be more and more outlying cases where people are given implants.

  • Re:Mixed feelings (Score:5, Insightful)

    by Dachannien ( 617929 ) on Tuesday June 26, 2012 @08:22PM (#40460815)

    Some channels actually have "descriptive audio" here. It's actually exactly what it sounds like. A voice describes what is happening, overlaid onto the audio. Once in a while I'll turn it on and try watching something with my eyes closed.. surprisingly for stuff that's heavily dialog driven, it works surprisingly well.

    Once upon a time, those were called radio shows.

  • by pla ( 258480 ) on Tuesday June 26, 2012 @08:27PM (#40460875) Journal
    Netflix cannot comply with the ADA in this case, because doing so would create a derivative work of the original, without the permission of the copyright holder.

    Simple as that.

    Now, whether or not Netflix still has to comply... Well, perhaps we can twist this to our own gain - Does the obligation to make their content "accessible" trump copyright? If so, you can bet your left nut I'll have a business model the very next day designed to exploit that fact.

    Your turn, courts - Punish us all to protect the weak, or give up your paternalistic attitude toward Big Media.
  • Re:Mixed feelings (Score:1, Insightful)

    by Anonymous Coward on Tuesday June 26, 2012 @08:36PM (#40460995)

    We can go the route of practical universality of consequences like showing inconsistencies in applying this 'principle' to other groups(like the blind) but I like to go the other direction, and consider the logical consequences of the action itself. Consider what these people are doing. They are asking our government to steal money from people because they do not like what it is that the people at netflix is offering willing customers. They are requesting theft against peaceful traders. They are advocating the initiation of violence against innocent people.

    We can point out how unsustainable such action would be if it were taken to its logical and universal conclusion. No problem there. But we can also just stop at 'its fucking evil, shame on you sick fucks' and be done with it.

    Or, if it is too painful to confront and demand virtue from people, if the cost of ostracism from a society that isn't quite ready to hear such condemnation is too high, one can refrain from pointing out the immorality of their action and instead one can describe its internal logical inconsistencies. Namely, advocating the initiation of theft against innocent people arbitrarily, which necessarily requires victims who resist the violence(otherwise it wouldn't be). This then means that their principle is that either "some arbitrary set of people should initiate violence and some other arbitrary set of people should oppose violence" or "each person should arbitrarily initiate and also at the same time fight against violence". Either way this violates universality and consistency which are both necessary requirements for any rule describing reality to possibly be true.

    The argument from practical effect is reasonable, but it runs the risk of being countered by people who prefer some effect of such actions. Lawyers for instance would gladly have blind people also suing netflix. The effect for them is great. So, be careful of relying too strongly on argument from effect.

  • by spire3661 ( 1038968 ) on Tuesday June 26, 2012 @08:37PM (#40461003) Journal
    Becasue we as a society have determined that private enterprise can only exist at our discretion. Part of that discretion is making sure if you are open to the public, that you make reasonable accommodations for differently-abled. We then pretty clearly spelled out what those obligations are. If you open a business without factoring in these responsibilities, then i do not feel sorry for you if your model fails.
  • by Anrego ( 830717 ) * on Tuesday June 26, 2012 @08:38PM (#40461017)

    that we should let economics figure this out.

    The ADA exists (and here in Canada, the equivilant) because this won't happen. Making things accessible isn't a good business decision. It costs a lot of moeny and doesn't bring in much additional revenue. Society has decided that it's not fair to exclude the <whatever the correct term is now> from everything .. and so complying with accessibility rules just becomes a part of doing business.

    Personally I think it goes too far. As usual we failed to find a reasonable medium. I'm all for society incurring some burden to help those who could easily by freak chance be us. At the same time however, we have to accept that it's impossible to make it so a <whatever the correct term is now> person can do everything in the same way that a non <whatever the correct term is now> can. If this was the case, then there'd be no problem. It sucks but it's life...

  • Re:Mixed feelings (Score:5, Insightful)

    by dgatwood ( 11270 ) on Tuesday June 26, 2012 @08:49PM (#40461159) Homepage Journal

    At which point Netflix would then be obligated to refuse to provide those pieces of content until the creators provide the subtitles, at which point the creators would be forced to provide the subtitles. More to the point, these rules would apply to all similar services, presumably, so if the content providers don't solve the problem, they'll lose most of their digital distribution.

    There is some flexibility allowed for providing content created prior to when the rules were adopted, so this doesn't require magically creating subtitles where none exist (unless they can't manage to strike a balance where at least 75% of their pre-rule content contains subtitles).

    This doesn't suck at all. This is the law working exactly as it is supposed to work, doing exactly what it was intended to do. Now if we were talking about YouTube being forced to provide subtitles, that would be another matter....

  • Re:The ADA sucks (Score:5, Insightful)

    by RudyHartmann ( 1032120 ) on Tuesday June 26, 2012 @08:57PM (#40461227)
    This is an absurd argument. Netflix is providing something to be consumed for a fee. They throw it out there and say, here's our food. This is what we are serving and here is the price. So, let's say I have a gluten allergy. I can't walk in to the local bakery and scream that they are obligated to provide me with gluten free bread? I am not entitled to any of the products or services of the bakery. I can either buy it or not. Same with Netflix. I have sympathy for the deaf, but private business does not have to change to accommodate their disadvantage.
  • by dodobh ( 65811 ) on Tuesday June 26, 2012 @09:07PM (#40461329) Homepage

    Given that any corporation exists via state privilege, the ADA could simply be treated as one of the terms for corporate existence.

  • Re:Mixed feelings (Score:5, Insightful)

    by andymadigan ( 792996 ) <amadiganNO@SPAMgmail.com> on Tuesday June 26, 2012 @09:09PM (#40461349)
    Your argument also allows supermarkets to have stairs but not ramps for the disabled. After all they're "peaceful traders" too. The ADA is intended to make sure that the disabled can live as normal a life as possible. It's rarely in the interest of a business owner to make accommodations, since the amount of revenue gained will not offset the cost. As a society we've decided that all men are created equal and therefore should all have the same rights.

    Personally, I've run into far too many movies and shows on Netflix that lack subtitles (even though the broadcast and DVD version both have subs), I can hear fine but sometimes I miss a word with all the background noise, I usually turn subs on when they're available. I'd like to see more.
  • by Darinbob ( 1142669 ) on Tuesday June 26, 2012 @09:41PM (#40461653)

    The constititution is not the whole of the law, and neither is it a sacred document. Over time there has been precendent and and affirmed that expand the power of congress. It is cearly affirmed by the courts over time that congress has to power to regulate private businesses in regards to worker safety, worker discrimination, and similar issues. What the framers intended is no longer relevant because times have changed and the laws did not freeze in 1790.

  • by bornagainpenguin ( 1209106 ) on Tuesday June 26, 2012 @11:33PM (#40462817)

    I think it's child abuse to deny a baby born deaf a cochlear implant

    No, what is child abuse is using the misfortune of someone's child being born with a hearing impairment to excuse human experimentation on infants with dubious real world results.

    I'm not a Deaf militant, but I am hard of hearing since childhood and have participated in the Deaf community and use sign language, so I know a little bit about this stuff because it involves me and those like me. I find the saddest thing has always been the way the families involved and the children diagnosed with it are treated. The second saddest thing is how many people who spout off about the issue do so from a position of ignorance and emotion, not facts.

    The fact is that cochlear implants are a dangerous gamble, one that rarely pays off as much as those who subject others to it expect. It requires drilling into the skull to place a piece of hardware in the head, one that still requires the use of an external aid to function. There are heightened risks of meningitis, nerve damage, necrosis of the cochlear implant skin flaps...none of which are really explained to parents before hand. Instead all parents of Deaf children hear is that there is a surgery that can "fix" their children.

    Worse, the recommendation is that the surgery be done at an early age because there is a limited window to get some form of language to the brain. The problem is that proponents of the surgery often advise against the children also learning sign language because it would interfere with them learning to process sounds. This is where the biggest gamble of all takes place--if the child doesn't properly learn to process the signals as sounds, they are effectively retarded in their development.

    By contrast sign language has shown to allow communication and build cognitive function at preverbal ages!

    That is why so many Deaf people get so militant about the issue!

  • by dAzED1 ( 33635 ) on Tuesday June 26, 2012 @11:55PM (#40463001) Journal
    movies are an "art" form that has two components - sound and video. If you're blind or deaf, you're missing part of it - that's not netflix's fault. Supermarkets don't have as a requisite part of the experience audio or video. Supermarkets are also a necessity. It's a silly analogy. Besides, to add captioning, netflix would be altering the video...which they don't have the license to do. Why would the content providers not be the responsible parties for captioning, versus the distributor? Would you sue a record store for not making captioned versions of every LP? Would that make sense at all? Or sue the Louvre for not providing a braile version of the Mona Lisa? How is suing netflix in this case any different?
  • by muridae ( 966931 ) on Wednesday June 27, 2012 @12:00AM (#40463045)

    Yeah, because all those people who are going to the track to run shouldn't have to walk the extra 9 feet reserved for a handicap parking space. I mean, you are there to run, right? Why should you have to spend any more time walking to or from your car than necessary, just in case someone else needs that space. How dare grandma, in her wheel chair, show up to watch her grandkid run. Doesn't she know your legs will be tired and you need to park closer?


  • Re:Mixed feelings (Score:4, Insightful)

    by Ichijo ( 607641 ) on Wednesday June 27, 2012 @02:49AM (#40464157) Journal

    I tend toward libertarianism, and think the free market should decide. If there's a market willing to pay for captioned content, it will be met.

    Except your free market allows monopolies which prevent the market from giving people what they want.

Each new user of a new system uncovers a new class of bugs. -- Kernighan