Happy new year everyone!
Since I started blogging four years ago, I had never taken a two-week break before. Since my daughter was off from school and my wife took some days off, I decided to give that a shot. Now I am back and ready to get back at it. A two week break at the end of the year was nice as it gave me a chance to recharge my batteries. However, I am such a nut about writing, it is more than time for me to get back to it.
Previously, I had written about the case of ScribD here. ScribD appealed and case settled in November 2015. I do have categories for this blog entry and they are: highlights of the settlement agreement; and my thoughts. It would be kind of strange to only read the highlights without my thoughts, but the option remains.
Highlights of the Settlement Provisions
1. Each party pays for its own attorneys fees. Now, here are provisions that you don’t often see in these cases. Usually, the defense pays the attorneys fees for the plaintiff even though it doesn’t admit liability.
2. Web content accessibility guidelines 2.0 level AA with ARIA and HTML5 support is the standard that the website must satisfy.
3. ScribD with the assistance of a third party vendor, one is named in the complaint-simply accessible Inc.- has to perform automated and manual testing of the website.
4. ScribD has to offer a single, responsive website for all users, including desktop and mobile users. Blind users have to be able to engage in all of the same transactions and access all the same information with a substantially equivalent ease-of-use. That means, that blind users must be placed at the same starting line as those users who are not blind.
A trap that I see here is that voice dictation doesn’t always work the same as screen reading technology. Hopefully, people who use voice dictation technology and not screen readers will not be left behind here.
5. If ScribD performs a full re-architecture of iOS or android apps, which includes a full re-architecture of the interface and reader in the app, then ScribD has to ensure that the fully re-architected app is fully accessible to blind users.
6. If an upgrade of its iOS or android apps is released, then ScribD has to ensure that the elements of the apps upgraded, updated, or revised complies with BBC Mobile Accessibility Standards and Guidelines v 1.0 or an applicable successor for blind users.
7. By December 31 of 2017, ScribD must reprocess all EPUB ebooks that it has received from publishers to ensure they are accessible to screen access software according to the existing international digital publishing form standard.
8. After December 31, 2017, if a paying subscriber using screen access software request a PowerPoint, Excel, or PDF file on ScribD to be provided in a text readable format, ScribD, to the extent allowed by contract and of the law, will process the file to make that appointment accessible to that subscriber providing that ScribD only has the obligation to undertake processing of such documents as long as the cost to ScribD of doing so for all subscribers cumulatively is less than $12,000 per calendar year.
This is interesting. It seems that the parties are agreeing that in this situation anything more than $12,000 per year spent on all subscribers constitute an undue burden. $12,000 for all subscribers per year does not seem like a lot of money given what one would think ScribD is worth. The question that this raises is whether the parties can agree on what constitutes an undue burden or whether that is something for the court to decide.
9. ScribD has to process and present comic books, illustration heavy books, graphic novels, maps, and sheet music with existing descriptive data in a manner permitting that data to be accessed by a ScribD user.
10. By December 31 of 2017, ScribD must make audiobooks available to the website for native mobile applications in a way that a blind user can access with a substantially equivalent ease-of-use.
Being deaf, this has me wondering whether this would create an argument for a deaf person to say that ScribD should be captioning its audiobooks. Perhaps, ScribD already does this.
11. After December 31, 2017, ScribD cannot change its website or portion of it without subjecting the website to testing and determining that it has been determined to be accessible.
12. If there any bugs with respect to website features, ScribD has to deal with those bugs that are affecting the blind in the same way and in the same priority as those not affecting the blind.
13. ScribD has to implement a course of training for designers, engineers, and management regardless of whether they are employees or independent contractors. That training has to be appropriate for their roles in the development and maintenance of the website. The training materials have to be given to the National Federation of the Blind.
Notice that this provision applies to both ScribD employees and the independent contractors that work on websites and the apps.
14. Within 90 days of the settlement agreement, ScribD has to adopt and implement a Web accessibility policy. Within the same time frame, ScribD has to designate an employee reporting to the senior vice president of engineering or header products to be the web accessibility coordinator for the website.
15. Should either the National Federation of the Blind or the individual that filed the complaint believe that ScribD is not complying with the settlement agreement, then upon written notice, ScribD has 60 days to cure the problem. If ScribD disputes the breach, either party has the right to request a mediator to step in and the parties will split the cost of the mediation evenly. If these steps are not successful in resolving the problem, then the National Federation of the Blind may bring a motion to enforce the settlement agreement and fees and costs associated with that motion around the table, though the settlement agreement explicitly mentions that whether fees and costs are available for that situation is very much debatable.
16. The settlement agreement runs until December 31 of 2020 and renews automatically every year after the initial term unless upon 10 days written notice a party declines to renew the settlement agreement or ScribD becomes insolvent.
Why would ScribD renew the settlement agreement after the expiration of the initial term?
17. ScribD admits no liability.
1. It is extremely unusual to see each party responsible for paying their own attorneys fees. One wonders if the plaintiffs had their attorneys do the work pro bono.
2. It is always better to design accessible websites and apps from the get go, including getting it tested, rather than have to do it later after also outlaying considerable dollars for attorneys.
3. In doing that design from the get go, don’t forget about other disabilities besides the blind, such as the deaf and those who use voice dictation technology. That is, if you design it for the blind but don’t take into account other users with disabilities, then you may have prevented a lawsuit involving the blind but open yourself to a lawsuit involving other disabilities, such as those who are deaf or use voice dictation technology. What I have been finding very interesting is that I don’t see a lot of litigation involving people using voice dictation technology. It isn’t clear to me whether voice dictation technology and screen readers are always on the same page. I can tell you that my own personal experience in the past is that it isn’t always the case.
4. It is an open question, to my mind, whether parties can agree on what constitutes an undue burden in the financial sense.
5. If it is a matter of troubleshooting problems for persons with disabilities, they need to be troubleshooting in the same way as those without disabilities. That is, don’t send them to the back of the line so to speak.
6. Make sure the people, both employees and independent contractors, designing your website and the apps are familiar with and are trained in the appropriate means for ensuring that apps and websites are accessible to persons with disabilities.
7. Having a person designated to be responsible for ensuring that websites and apps are accessible to all persons with disabilities is not a bad idea.
8. If you are a software as a service entity, you may be able to argue that you are not subject to the ADA at all because you are not operating, owning, or leasing a place of public accommodation. However, this case and others, suggest that the ADA is not limited to a physical place. Do you really want to take the chance after spending a lot of money on attorneys fees to find out that the ADA is not limited to a physical place? It is very unclear as to how the United States Supreme Court would rule if faced with this question. If you are a physical place using the website as a gateway to your physical place or to the products offered, then you definitely want to have your website accessible to all persons with disabilities as the case law is trending pretty strongly in that direction with respect to websites that are a gateway.
Happy new year everyone!