Previously, I blogged on the oral argument in Earll v. eBay and Cullen v. Netflix. On March 19, 2015, the District Court in Vermont came down with this decision in National Federation of the Blind v. ScribD. That decision bears reviewing.

I
Facts:

ScribD is a California-based digital library operating reading subscription services on its website and on applications for mobile phones and tablets. Its customers pay a monthly fee to gain access to the collection of over 40 million titles, including e-books, academic papers, legal filings, and other user uploaded digital documents. The software program is accessed over the Internet and is not accessible to users that use a visual interface exclusively and lack any nonvisual means of operation. As a result, plaintiff brought suit saying that ScribD denies blind persons access to all of the services, privileges, advantages, and accommodations that ScribD offers and is excluding them from accessing information critical to their education, employment, and community integration.

II
Court’s Reasoning for Denial of Motion to Dismiss

1. In order to make a prima facie case under title III of the ADA, a plaintiff has to show: A disability within the meaning of the ADA; defendant owns, leases, or operates a place of public accommodation; and the defendant discriminated against the plaintiff by denying the plaintiff a full and equal opportunity to enjoy the services the defendant provides. The defendant argued that the plaintiff’s had not sufficiently alleged that it owned, leased, or operated a place of public accommodation.

2. The court cited to the text of title III, which states that no individual can be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person owning, leasing, or operating a place of public accommodation. 42 U.S.C. § 12182(a).

3. The court then lists the places of public accommodation, which can be found at 42 U.S.C. § 12181(7).

4. The court then goes into detail how the courts are all over the place with respect to whether a web-based business or even the web aspect of a brick-and-mortar business must comply with title III of the ADA. It noted that in the Ninth, Third, and Sixth Circuits, courts have held that title III of the ADA did not apply because of insufficient connection between the discrimination alleged and a physical place. However, in the 11th Circuit, the court there held that title III of the ADA covered both tangible and intangible barriers. The court also noted that in the First Circuit and in the Seventh Circuit, courts there have held that places of public accommodations are not limited to physical structures.

5. In the Second Circuit, the Second Circuit has held that title III prohibits the refusal to sell merchandise by reason of discrimination against the plaintiff’s disability. That decision, to the court’s mind, would logically extend imposing barriers on a person with a disability ability to access the merchandise, which is essentially the same effect as to where a company’s refuses to sell a person with a disability merchandise on the Internet. To hold otherwise, would allow a company to refuse to sell it goods or services to a person with a disability so long as it does so online rather than within the confines of a physical office or store. Such a holding makes no sense.

6. The court cited with approval National Association of the Deaf v. Netflix, Inc., which I blogged on here, for the proposition that the ADA covers not only transactions taking place over the phone or through correspondence, but also with equal force to services purchased over the Internet, and that when the ADA was passed, Congress intended the ADA to adapt to changes in technology. Accordingly, the court agreed with Judge Ponsor in NAD v. Netflix, that a plaintiff only has to show that the website fell within one of the general categories enumerated in the statute in order to be covered by title III of the ADA as a place of public accommodation.

7. ScribD did make the argument discussed in my blog entry discussing the oral argument in eBay and Cullen before the Ninth Circuit, that if a place of public accommodation is not construed to be a physical space, then Congress using the word, “place” improperly renders the word superfluous. The court was having none of it for the following reasons:

A. The title of the relevant section is “public accommodation,” and the categories and the definition are also described as, “public accommodations.” 42 U.S.C. § 12181(7). In neither situation, does the ADA use the word place, which thereby suggests that the accommodation has to be available to the public but not necessarily at a physical place open to the public.

B. In other instances, the statute uses the word, “establishment” instead of the word, “place.” 42 U.S.C. § 12181(7)(B). That suggested to the court that the word “place,” was used because there wasn’t any less cumbersome way to describe businesses offering those particular goods or services to the public.

C. Where there are instances where the word “public,” appears, the word is modifying the types of goods or services offered rather than the word, “place.” 42 U.S.C. § 12181(7)(D).

D. Reading the statute to extend beyond physical places open to the public, does not eliminate the need to demonstrate inclusion in one of the broad categories of public accommodations listed in title III of the ADA.

E. Relying on Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Association of New England, the court noted that Carparts mentioned that travel services were included as an example of a service establishment considered a place of public accommodation, and even back in 1990, it was entirely possible that a travel service might operate without a physical location open to the public and conduct business directly by phone or by mail. Thus, by logical extension, “place,” or “establishment,” could refer to services provided off-site, including the Internet.

F. Requiring a physical structure has some connection to a physical threshold results in arbitrary treatment. To the court, it made little sense for the law to allow for discrimination against a person with a disability where the defendant sells policies door-to-door but to not allow discrimination against a person with a disability if the parent company’s office was covered. The court found it very unlikely that Congress could’ve intended such an inconsistent result.

G. Citing to PGA Tour v. Martin, the 12 categories of public accommodations should be construed liberally in order to for persons with disabilities to have equal access to the wide variety of establishments available to those without disabilities. Further, the court found support for construing public accommodations liberally in legislative history.

H. The committee reports suggest that the important quality public accommodations share is the offering of goods or services to the public and not that they offer goods or services to the public at a physical location. What matters is membership in one of the general categories.

I. The Department of Justice final regulations implementing title III of the ADA, 28 C.F.R. § 36.104, define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock for other conveyances, roads, walks, passageways, parking lot, or other real or personal property, including the site where the building, property, structure, or equipment is located.” The plain language of that regulation does not require that an entity’s facility be open to the public.

J. DOJ in several different ways, which has been discussed numerous times in this blog, has interpreted their regulation to apply to the Internet, and is in the process of promulgating regulations codifying the position that the ADA does apply to the Internet. The court says that the DOJ interpretation of the regulation is entitled to deference.

K. The fact that Congress did not amend the ADA to include Internet accessibility when it enacted the amendment to the ADA is of no significance since there could be a lot of reasons why Congress did not do that.

L. Representative Nadler in 2010 said that Congress when it enacted the ADA understood that the world around them would change and believed that nondiscrimination against persons with disabilities needed to be broad and flexible enough to keep pace.

M. Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

8. ScribD could fall into any of several categories of public accommodations, including: exhibition or entertainment; sales or rental establishments; service establishment; library; gallery; or a place of public display or collection.

III
My Thoughts

1. First, in the interest of full disclosure, this whole blog entry has me very conflicted. My law practice and this blog are devoted to understanding the ADA. On the other hand, I have to use voice dictation technology in order to use the computer. None of my blog entries would’ve happened without it. For that matter, nor would anything that has anything to do with the computer happen without it. Also, I can’t tell you how many times I have tried to use a product on the Internet that is not accessible to voice dictation technology. Some of those products have not been accessible to voice dictation technology as well as to screen readers. However, I have run into a situation where product was accessible to screen readers but not to voice dictation technology. Being unable to use voice dictation technology with respect to the Internet, is extremely frustrating and makes things more inefficient for me than they need to be. That said, my blog is about understanding the ADA and not about advocating a particular point of view. Therefore, what follows is focused on that and does not necessarily reflect my personal opinion (my personal opinion would be that the ADA should apply to the Internet and that businesses should do it anyway because they are cutting down their customer base if they fail to do so). That said, that doesn’t mean the law gets you to the same place unless Congress amends it. Let’s discuss further.

2. The United States Supreme Court when trying to figure out what a statute means, often goes to dictionaries. So, I decided to do the same thing by looking up the word, “place” on the Internet. It is interesting what I found. When I asked Siri to define the word, I got, “a portion of space whether definite or indefinite.” When I asked Merriam-Webster to define the word, all of the possibilities clearly denoted a physical space. When I asked the free dictionary to define the word, I got, “a particular portion of space occupied by a person or thing.’ I also got a business establishment. When I asked the Oxford dictionary how to define the word, I got, “a particular position or point in space.” So, reviewing the possible definitions. The dictionary.com definition suggest that a place of public accommodation could be physical or otherwise. Merriam-Webster suggests it has to be physical. The free dictionary.com definitions are very interesting in two respects. First, a place could be a particular portion of space occupied by a person or thing. If you think about the Internet, when you are on the Internet a strong argument can be made that the person is occupying that space and it therefore, is in a place. Even if you can argue that the person is not in that place, a thing, namely your mouse (which is being controlled by that person), most certainly is. Also, nothing in this case suggests that the court looked to free dictionary.com to define the term, but it is interesting that this particular dictionary defines a place as a business establishment thereby supporting the reasoning of the ScribD court. The Oxford dictionary definition suggest that a physical place is not required for it to be a place. In short, the United States Supreme Court loves to go to the dictionary (from reading a biography of Justice Scalia, he has a particular dictionary that he likes to use), but here the dictionary definitions are all over the place, though the majority of them seem to suggest a place does not have to be physical.

3. I didn’t go into detail as to which decisions, with few exceptions, were cited by the ScibD court because I discussed many of those decisions in my book, where I have a section of chapter 13 devoted to the Internet and title III of the ADA.

4. We know that a particular product does not have to be accessible to a person with a disability. However, it is ingenious as to how this complaint was phrased. That is, the complaint says that persons with visual impairments are being denied services, privileges, advantages, and accommodations of ScribD. ScribD is most likely a product in the genre of, “software as a service,” which is a huge industry. That leads to the question as to whether ScribD is a product or a service. Services, privileges, and advantages have to be accessible but products do not. Therefore, expect a lot of discovery trying to determine whether ScribD is a product or a service.

5. ScribD is a California outfit and yet the case was brought in Vermont (no doubt due to favorable court decisions within that Circuit). If “place,”
is found to include the Internet, ScribD could be facing substantial damages under California law.

6. Much of this decision is a policy decision , but not all judges are persuaded by policy. It becomes a matter of judicial approach. For example, I certainly do not want to put words in Justice Breyer’s mouth and so if I am not getting it quite right forgive me, but I did have a chance to hear him in person once. The way I understood what he said is that when it comes to his judicial philosophy, he looks at a situation, and then asks how does it play out in a way that makes sense, which necessarily leaves room for some degree of policy. On the other hand, some justices are very focused on plain meaning and to them how “place,” is defined by the dictionary is going to be critical. Unfortunately, for justices that would use that approach, the word, “place” has different meanings depending upon the dictionary that is consulted.

7. There is a line of cases too numerous to recount that says a statute should not be interpreted in a way that lends absurdities to the statute.

8. Again, a matter of judicial approach. There are judges that will not even consider legislative history unless the term itself is vague. Considering the variety of definitions offered by different dictionary, this may well be such a situation. If so, that bodes favorably for persons with disabilities.

9. The Department of Justice final regulations refer to equipment. I think it likely that the final regulations would be given Chevron deference (though, in my opinion, there is a very good possibility that the Department of Justice interpretations of the regulations will not be given deference as I discussed in this blog entry). One wonders if an argument can be made that equipment includes the server that makes the website go. If so, a plaintiff could argue that failure to have the website accessible means they are being denied access to certain equipment, i.e. the server aka web site.

10. There is also a line of cases too numerous to recount that says Congress is presumed to know what is doing when it amends a law and doesn’t change it. The court here ignores that line of cases when it says that Congress could have a zillion reasons as to why it doesn’t amend the law, and therefore, the fact that it did not amend the law should not be given consideration. I don’t look for that statement to prevail in the end because, as mentioned above, that particular rule puts the burden on the defense when a long line of cases put the onus on the plaintiff to show that failure to amend the law should not be given consideration.

III
Conclusion

1. I absolutely believe this statement of the court mentioned above:

Since the Internet plays a critical role in the personal and professional lives of Americans, excluding persons with disability from accessing covered entities that use it as the principal means of reaching the public defeats the purpose of the ADA.

Unfortunately, for me, and consistent with the purpose of my law practice and this blog, just because this is absolutely true doesn’t necessarily mean that it is supported by the law.

2. Before the NCAA tournament started, it was a given that the University of Kentucky would win it all. After the Notre Dame game, that may or may not be true. I can say with virtual certainty that United States Supreme Court will be faced with the question whether web-based businesses are subject to title III of the ADA if not with eBay and Cullen, perhaps with ScribD.

10 Responses to Does a web-based business have to comply with title III of the ADA redux

Having a blog such as mine, means that I get comments from readers. They don’t always wish for me to post their comments. One such person wrote me a couple of different comments and gave me permission to post the points as I saw best here.

This reader of the blog makes a point that I had not considered. The beauty of the ADA is that it ranges across so many fields. In this case, the reader points out some intellectual property concerns. This reader tells me:

The case of ScribD is interesting because they permit access with their paid fee but not downloads–presumably to prevent unauthorized distribution that would depreciate or void their exclusive licenses. Many text-to-speech readers work by downloading the text, then translating it. ScribD does not hinder any blind person from accessing the text once they have paid the fee. What they can’t do is make downloads–which is more than payment of the fee would entitle sighted persons to do, from the standpoint of rights to IP.

Therefore, asking the provider to accommodate the readers used by the blind by permitting downloads to them would be requiring ScribD to provide the blind with superior rights, from an intellectual property standpoint, to those of sighted customers, who might also like to download hard copies for easier reading. Downloading the copyrighted materials is not permitted to any licensee. It may also work a hardship on ScribD by voiding their agreements with publishers. This would, in all probability, make the materials offered unavailable to anyone other than purchasers of hard copies of the books/publications. Since many of the publications offered on ScribD are of the type where authors self-publish, or have their works published by “vanity publishers,” the market for hard copies would be considerably smaller than it is compared to those who access the works online, with a resulting reduction in profits to budding authors.

If I can translate this into ADA speak, I believe this argument translates to a fundamental alteration of the business defense.

Mr. Goren:
RE “place of public accommodation:”
The whole discussion of “place” w/r/t the internet seems almost quaint if you consider that what many of us are actually doing is sending or receiving a bunch of “packets” transmitted by VOIP on fiber optic cable–which in the most concrete sense none of us has physical access to.

Personally, w/r/t the internet and websites, I feel the emphasis should be on “public accommodation.” Years ago, in ruling against proposed regulations for the internet under the Communications Act, I believe it was the E.D. of PA effectively said that, at a time when many small towns no longer have a daily newspaper, the internet not only provides people with access to breaking news, but allows people to debate issues on what is possibly the most diverse and democratic forum available.

In the same manner, when many unique bricks and mortar establishments have closed due to operating costs or competition with Big Box stores, it is websites for more diverse establishments and similar sites dedicated to multiple entrepreneurs and craftspeople, coupled with various air and ground distribution channels, that enable people who live in small towns to order everything from out of print books on Amazon, caviar from Zabar’s, or crafts from Etsy.

The disabled deserve the same access to these goods and services as others. However, I still feel that the blind–or others–don’t have the right to dictate the platform used to accomplish this, so long as one relatively universal means is provided.

Really do appreciate the comments! Very interesting point about platforms. The question would be whether only certain kinds of platforms would allow for accessibility for persons with disabilities. If the answer is any kind of platform would allow for it, then it shouldn’t matter, but I don’t know if that is the case.

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