Judge: Netflix can be sued for streaming uncaptioned films

by Walter Olson on June 25, 2012

As I note in a new Cato post, a judge ruled last week that Netflix is a “public accommodation” and can be sued for not offering closed captioning on all its streamed films for the convenience of deaf customers. (Earlier here.) If upheld, the ruling will apply not just to Netflix itself but to a much broader class of online communicators; also waiting in the wings are blind advocates who believe the law requires the addition to movies of supplementary soundtracks describing action. As I pointed out to the Boston Globe, obligatory captioning, soundtrack supplementation and the like is likely to make it uneconomic to offer streaming of many films with low expected circulation. Note, however, by way of contrary precedent, this 2010 federal court ruling that online multiplayer games are not a public accommodation. My new post is here (& Allen McDuffee, Washington Post “Think Tanked”, Alexander Cohen/Atlas Society, George Leef/John Locke Foundation, Sam Bagenstos/Disability Law.)

P.S. And this must-read post at Ars Technica from prominent Internet law blogger Eric Goldman (“a bad ruling. Really terrible.” and contrary to precedent). Bonus: “I am so sick and tired of hearing people like Olson… the Walter Olsons of the world” [Ellen Seidman, Parents mag]

{ 2 trackbacks }

Will the Americans with Disabilities Act tear a hole in Internet law? | Ars Technica
06.27.12 at 11:09 am
Eric Goldman on the Netflix decision - Overlawyered
06.28.12 at 12:30 am

{ 16 comments }

1 Hikaru Katayamma 06.25.12 at 6:35 pm

As someone with damaged hearing (too many rock concerts) I often have trouble hearing the dialog on streamed videos, however I’ve never really been that irked over lack of subtitles. That is until Neflix started adding subtitles to SOME movies, but not all of them. Worse yet, LG has told me that my Netflix ready DVD isn’t going to support streaming subtitles.

OK, if you can’t do subtitles, then don’t do them. But they CLEARLY have the ability because I see subtitles on my PC and Droid for many movies, but not all.

Time for them to get their act together and put subtitles on all the movies. They obviously have the technology now, they’re just not willing to dip into their profits to make it across the board.

2 doug 06.25.12 at 8:54 pm

dont at least some tv’s have the capabilty to close caption?

3 Malcolm Smith 06.26.12 at 12:26 am

Where did this idea of “public accommodation” come from, anyway? Where did we get the idea that free people should not be able to pick their customers, just as they do their friends and associates (and employers), and provide whatever lawful item or service they want to whomever they want, without the government sticking its nose in?

4 John Burgess 06.26.12 at 7:58 am

My hearing’s not the best either, so I often use subtitles — when available. Not all TV shows are captioned. It depends on whether the producers want to spend the money to have the captions created. The broadcaster might pay as well, but someone is paying.

And not all shows are, in fact, captioned, even on broadcast TV, arguably much closer to a ‘public accommodation’. Cable news channels appear to be using some sort of automatic transcription to create captions. This is most notable when the captions come out close as to phonetics, but a galaxy away when it comes to content or coherence.

Some films from Netflix are captioned. Most of their DVDs are, but certain film companies just don’t bother. This is common for older films, from the 40s-70s. Streaming videos are far less likely to have captioning. I figure they will eventually catch up as more films come with captions are part of the distribution package.

There is a problem with audio. It seems to e optimized for home theater audio systems — 5.1, 7.1, and the like. These turn very muddy in stereo.

While I’d certainly appreciate more captioning, it’s not something worth suing over. I see Netflix (and other) distributors offering a less-than-ideal package and not a perfect-for-me package. Such is life.

5 Mark Biggar 06.26.12 at 1:21 pm

Isn’t there a potential problem that adding sub-titles to a work, that didn’t have them originally, is a violation of the copyright of the original work by creating a derived work? Dubbing in a new language track could have the same issue. Wouldn’t Netflix need to get permission for each work it wanted to so modify. Why isn’t this the responsibility (to accommodate deaf people with sub-titles) of the original creator? Besides isn’t it a violation of the original artists First Amendment rights to demand that his art be modified in any way he doesn’t want? This ruling is basically saying the Netflix can be sued for choosing NOT to violate the Copyright laws.

6 Mark Biggar 06.26.12 at 1:27 pm

Another thought, the likely result is the Netflix stops steaming those movies that it finds uneconomical to sub-title all together. Thus yet one more example of the disabled demanded access accommodation with the unintended consequences that NO-ONE gets access at all.

7 ShelbyC 06.26.12 at 2:26 pm

Seems like there’d be a first amendment problem with requiring captions on movies.

8 Robert Scott Lawrence 06.26.12 at 8:37 pm

That’s a terrible ruling. While the internet may be a public forum, it’s not a “a place of public accommodation,” and requiring Netflix to add close captioning to films that were not produced in that format is ridiculous. If judicial intervention can’t require the producers to make the DVD with subtitles, then imposing the burden subsequently on the distributor is simply absurd.

The decision also blithely ignores the possibility that actual modification of the film to include subtitles might very well constitute copyright infringement. I seem to recall a big brouhaha with audio book rights not so long when Amazon tried to implement the Kindle’s “read” aloud feature.

9 Hikaru Katayamma 06.26.12 at 8:55 pm

Most of the videos I’m referring to are recent stuff, done in the last 5-10 years. Many of them I know have subtitles because when I watched them on the Netflix DVD, I could see the subtitles. It’s almost like they don’t want to go back to the old video’s they’ve already encoded and add the subtitles to them from the disk.

Then again, that’s pure speculation.

10 Stephen 06.27.12 at 2:22 pm

Welcome to the crazy world of intellectual property, Hikaru Katayamma. They may simply not have the rights. This rock/hard place combo could come up a lot of places on the internet, so try to think beyond Netflix to problems this can cause in the great public forum you and I are using right now.
Random example: What happens if I want to post clips of examples of racism from television on a website. I already would have to fend off lawsuits from content owners based using fair use arguments, would I also now need to secure and provide closed captioning for every clip?

11 strech 06.27.12 at 2:24 pm

Hikaru: Having the DVD doesn’t mean they have the rights to stream the DVD; the streaming rights are entirely separate, so they may be separate data and copies of the movie. It’s entirely plausible that the version of the movie they have rights to stream has no captions, while the DVD version does.

Regardless of whether or not it’d be good for Netflix to caption the streams (it would, of course), the use of the ADA as a blunt instrument in this case is a terrible precedent (see Goldman’s article) given the expanded definition of public accommodation.

12 Andrew 06.29.12 at 1:38 pm

Alternately, Stephen, you could provide a transcript of the content. It would benefit not only people who are Deaf/Hard of Hearing, but also people who have English as a second language; people who view your website at work, in a library, or some other location where they can’t/shouldn’t use audio; people who don’t have speakers on their computers for whatever reason (mine are broken); etc.

13 Rich 07.02.12 at 8:38 am

Isn’t subtitling the content provider’s responsibility and exclusive right? Netflix is a transmission service. They don’t originate content. This is how the cable companies and to a lesser extent YouTube distance themselves from responsible for the content – because there is no way they reasonably can be responsible for it. It seems to me is this more about convenient targets and big pockets than justice. I also suspect it’s only effect will be the unintended one of restriction of available content. The greatest impact will be on indy films lacking the budget to caption up front. This raises the minimum cost of production and will probably eliminate a lot of specialized content.

14 Mike 07.09.12 at 1:21 pm

I wouldn’t blame companies like Netflix to move their operations offshore, so they wouldn’t have to deal with ADA shakedown artists. Olson is right. It will be never ending. Next will be accommodations for blind people (descriptive narration). Then what? These companies will have no choice but to shutdown or move overseas.

15 Hugo S. Cunningham 07.09.12 at 5:54 pm

Might a reasonable compromise be:

Netflix will surcharge $1 (maximum) on each rental of a non-captioned film, to be held in account to pay for captioning of that film? It would be captioned only after enough rentals accumulate surcharges to pay for it.

Orphaned funds, for films with too few viewers, would *not* be paid out to disability lawyers or advocacy groups, eg in dubious class-action settlements. They would either be used to caption other films, or revert to the Library of Congress to make other materials available on the Internet.

16 Melvin H. 07.09.12 at 11:20 pm

Wait, couldn’t DMCA section 230 apply here, overriding the ADA claim? It might go something along this line: If Netflix can’t be held responsible, except under VERY narrow circumstances, for content put on its website–or in this case, movies streamed on its site–it should NOT be held responsible to put subtitles on the movies, as it is only a third-party to the streaming (it is providing the means to stream, not the movies themselves). With that, that might also solve the problems sites like Youtube or even Facebook might be facing with this ruling.

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