Online Streaming Under National Association for the Deaf v. Netflix, Inc. and the Cvaa

• Publication year: 2012

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 14 N.C. J.L. & TECH. ON. 135 (2012)

WAITING AND WATCHING IN SILENCE: CLOSED CAPTIONING REQUIREMENTS FOR ONLINE STREAMING UNDER NATIONAL ASSOCIATION FOR THE DEAF V. NETFLIX, INC. AND THE CVAA

Virginia Wooten*

In 2010, Congress enacted the Twenty-First Century Communications and Video Accessibility Act requiring video program owners to provide closed captioning for television programming streamed online. Although broad, these regulations do not apply to all video content streamed through online distributors, leaving the deaf and hearing-impaired without full accessibility to online programming. The Massachusetts District Court in National Association for the Deaf v. Netflix, Inc. found that the Americans with Disability Act applies to Netflix “Watch Instantly” as an online video distributor, requiring it to provide closed captioning in conjunction with Twenty-First Century Communications and Video Accessibility Act regulations. In response to a possible captioning requirement, Netflix argued that it does not have control over the content and copyrights to comply. This Recent Development examines the new captioning requirements and analyzes the role of copyright law in deciding who will bear the burden of producing closed captioning.

1. INTRODUCTION

   Imagine watching your favorite movies or television shows in silence. Could you understand them fully without closed captioning? Over the past few years, the deaf1 and hearing-impaired have had

   
   

   * J.D. Candidate, University of North Carolina School of Law, 2014. I would like to thank the N.C. JOLT staff for their tremendous help. I would also like to thank Professor Laura N. Gasaway for providing professional guidance and for opening my eyes to the fascinating world of copyright law.

   1. Deaf is intentionally not capitalized. The capitalized word “Deaf” refers to the community of individuals who use American Sign Language as their primary means of communication. See CAROL PADDEN & TOM HUMPHRIES,

      DEAF IN AMERICA: VOICES FROM A CULTURE 2, 39 (1988). The use of the

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      to interpret many shows and movies without closed captioning while watching content through Netflix’s “Watch Instantly” 2 online streaming program.3 Recently, in National Association for the Deaf v. Netflix, Inc.,4 the National Association for the Deaf brought a complaint against Netflix to include closed captioning on all of its content. In the summer of 2012, the Massachusetts Federal District Court issued an order finding that Netflix “Watch Instantly” can qualify as a “public accommodation” 5 under the Americans with Disabilities Act of 1990 (“ADA”).6

      As a “public accommodation”7 under the ADA, Netflix must comply with the ADA’s requirements to provide auxiliary aids, such as closed captioning, for the deaf and hearing-impaired. 8 Furthermore, with the issuance of federal regulations under the Twenty-First Century Communications and Video Accessibility Act (“CVAA”),9 the court found that the ADA and CVAA work in conjunction without irreconcilable conflict.10 Therefore, the CVAA regulation requiring video content producers to provide closed captioning does not pre-empt the ADA’s requirement of public accommodations, like online streaming providers, to provide closed captioning for the deaf and hearing-impaired. If the court’s interpretation is adopted by other courts, then online streaming

      
      

      
      

      word “deaf” throughout this piece simply refers to the condition of not being able to hear. See id.

   2. Netflix permits “subscribers to stream available videos through the Internet on a computer, television, or other device.” Nat’l Ass’n for the Deaf v. Netflix,

      Inc., 869 F. Supp. 2d 196, 199 (D. Mass. 2012).

   3. NETFLIX, http://www.netflix.com (last visited Oct. 17, 2012).

   4 869 F. Supp. 2d 196 (D. Mass. 2012).

   1. Id. at 202. The law and federal regulations define public accommodations as including, but not limited to, places of “exhibition or entertainment” and other

      places of “recreation.” See 42 U.S.C. § 12181 (2006); 28 C.F.R. § 36.104

      (2012).

   2. Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended at 42

      U.S.C. §§ 12101–12213 (2006)).

   3. See supra note 5 and accompanying text.

   8 See 42 U.S.C. § 12182 (2006).

   1. See Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, § 202, 124 Stat. 2751, 2767 (2010) (codified at 47

      U.S.C. § 613 (2006 & Supp. IV 2010)).

   2. Netflix, 869 F. Supp. 2d at 204.

      
      

      providers like Netflix and Hulu11 will likely be required to provide closed captioning for all of their video content.

      The question remains whether Netflix has enough control over the content and copyright of its video programming to provide captioning.12 This Recent Development examines the issueof requiring closed captioning for all online video streaming and the copyright effects of such a captioning requirement. Part II offers background information on the interpretation of ADA public accommodations and the CVAA regulations for video content producers. Part III examines the 2012 order in National Association for the Deaf v. Netflix. Part IV discusses the copyright implications of requiring closed captioning for all programming streamed online and whether video programming producers or distributors should bear the burden of completing the closed captioning.

      
      

2. RELEVANT STATUTES: THE ADA AND THE CVAA

   Through the ADA and the CVAA, Congress illustrated the intent to provide opportunity for the deaf and hearing-impaired to participate fully within society.13 The purpose of the ADA was to prevent physical or mental disabilities from diminishing “a person’s right to fully participate in all aspects of society . . . .”14 In 2012, when the CVAA was enacted, Congress updated past legislation to ensure that specific programming viewed through online streaming would have the same closed captioning requirements as programming seen through the television.15 Both acts aim to expand accessibility for the deaf and hearing-impaired, but vary in the approach and scale of the entities and material covered.

   
   

   1. HULU, www.hulu.com (last visited Sept. 24, 2012).

   2. Netflix, 869 F. Supp 2d at 202–03.

   13 See 42 U.S.C. § 12101(a)(1) (Supp. II 2008); Netflix, 869 F. Supp. 2d at

   199 (quoting S. REP. No. 111-386, at 1 (2010)).

   14 ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(a)(2), 122 Stat. 3553, 3553 (2008) (codified at 42 U.S.C. § 12101(a)(1)).

   15 See 47 U.S.C. § 613 (2006 & Supp. IV 2010).

   
   

   1. The ADA

      
      

      1. General Background

         In 1990, when the ADA was enacted, Congress found that discrimination against the disabled was a “serious and pervasive social problem.”16 By enacting the ADA, Congress intended to provide opportunities for disabled individuals, like the deaf17 and hearing-impaired, to function fully within society.18 To accomplish the goal of complete integration, the Act prohibited discrimination against individuals with disabilities in areas of “public accommodations.”19 Congress defines a public accommodation as “a facility operated by a private entity whose operations affect commerce” and come within one of a variety of categories, including places of entertainment or recreation.20 At the time of the ADA’s enactment, the Internet was essentially nonexistent. Therefore, Congress did not include any explicit reference to online entities.21 Now, with the prevalence of websites and online resources, courts are deciding the applicability of the ADA to

         
         

         
         

         1. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2(a)(2), 104 Stat. 327, 328 (1990) (codified at 42 U.S.C. § 12101(a)(2) (2006)).

         2. Deaf individuals do not necessarily consider themselves disabled. PADDEN

            & HUMPHRIES, supra note 1, at 44.

         3. See Americans with Disabilities Act of 1990 § 2(b) (codified at 42 U.S.C.

         § 12101(b) (2006)).

         19 Id. § 302 (codified at 42 U.S.C. § 12182 (2006)).

         1. 42 U.S.C. § 12181(7) (2006). Congress additionally states that facilities owned by a private entity and that fall into any of the categories of hotels,

            restaurants, convention centers, grocery stores, laundromats, libraries, parks,

            zoos, schools, homeless shelters, gymnasiums, golf courses, and certain other examples can qualify as public accommodations. See id.

         2. See Haley M. Koteen, Note, Ending the Disconnect for the Deaf Community: How Amendments to the Federal Regulations Can Realign the ADA with Its Purpose, 29 CARDOZO ARTS & ENT. L.J. 425, 428 (2011)

            (explaining that the ADA was passed before the Internet was commonly used

            and does not mandate private websites must be accessible to those with disabilities); see also 42 U.S.C. §§ 12181–12182 (making no reference to online entities being public accommodations).

            
            

            online entities, such as Netflix, and determining whether these entities qualify as public accommodations.22

            
            

      2. Interpretation of Public Accommodation

   Because the ADA does not explicitly address whether online entities are public accommodations, courts continue to disagree over whether the ADA is applicable to online streaming programs.23 Courts have interpreted public accommodations using three different variations.24 The Ninth Circuit provides the narrowest interpretation of public accommodation.25 In Weyer v. Twentieth

   
   

   1. To prevail on a discrimination claim under Title III of the ADA, a plaintiff must show “(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied a public accommodation by the defendant because of his disability.” Cullen v. Netflix, Inc., No. 5:11-cv-01199- EJD, 2012 U.S. Dist. LEXIS 97884, at *9–10 (N.D. Cal. July 13, 2012) (quoting

      Ariz. ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010)); see also 42 U.S.C. § 12182(a)–(b) (explaining that no disabled individual should be discriminated against because of their disability and denied benefits of a public accommodation).

   2. See Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002) (finding that that the ADA covered “intangible barriers” that restricted “a

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