Earlier today, I counted the number of cases I had in my pipeline. It came to two dozen. Ultimately, I chose the case of Panarra v. HTC Corporation et. al., here. It is a cutting edge case exploring whether the programming offered in virtual reality headsets needs to be accessible to the Deaf, deaf, and hard of hearing communities. As usual, the blog entry is divided into categories and they are: facts taken directly from the opinion; plaintiff sufficiently alleged that Viveport Infinity is a place of public accommodation; plaintiff sufficiently alleged denial of access in contravention of the ADA; plaintiff sufficiently alleged that Vivepoint Infinity owns, leases, and/or operates a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Facts Taken Directly from the Opinion
Plaintiff is profoundly deaf and his hearing and speaking abilities are limited. ECF No. 39 ¶ 6. He is a “big fan” of video games and has played them “all his life.” Id. ¶ 20. Plaintiff owns a device called an Oculus Rift which is a VR headset he uses to play VR video games and experience VR content. Id. ¶ 21.
Defendants “are one of the biggest electronics companies in the world” and they “operate an online VR subscription service called Viveport Infinity.” Id. ¶ 14. Viveport Infinity is “the Netflix of VR” and offers “unlimited access to . . . thousands of VR content, including games, videos, and other apps and programs.” Id. ¶ 14-15. Like Netflix, subscribers can access Viveport Inifinity’s content from the comfort of their own homes. ECF No. 39 ¶ 19.
In addition to access to “more than $10,000 worth of critically acclaimed titles,” Viveport Infinity subscribers get “exclusive offers.” Id. ¶ 15. Currently, Viveport Infinity is the only subscription-based platform offering VR content. Id. ¶ 16.
Plaintiff’s Oculus Rift headset is compatible with Viveport Infinity. Id. ¶ 21. He would like to subscribe to Viveport Infinity and use its content but has not done so “because Defendants have failed to provide closed captioning on its VR content.” Id. ¶¶ 35-36. Closed captioning “is a system that displays text on video content,” and, as such, it allows “deaf and hard of hearing individuals [to] have the opportunity to enjoy movies or videos by reading the captioned text.” ECF No. ¶ 17. Since Plaintiff is deaf, he “requires closed captions to meaningfully access and understand any video content that has audio portions.” Id. ¶ 20.
While some of Viveport Infinity’s content does offer closed captioning, many titles in its catalog do not—unlike Netflix which “provides closed captions or subtitles for all its content.” Id. ¶ 18. Viveport Infinity’s failure to provide closed captioning renders much of its content inaccessible to Plaintiff and “other deaf and hard of hearing individuals.” Id. ¶¶ 20, 23. Without closed captions, Plaintiff cannot “understand and follow the audio portions of various VR content” and he therefore “cannot fully and equally enjoy [Viveport Infinity’s] services.” Id. ¶ 24. This “increas[es] the sense of isolation and stigma” felt by Plaintiff and others like him as they “cannot enjoy VR and video games and cannot share the experience with their families or friends.” ECF No. 39 ¶ 31. Furthermore, it prevents Plaintiff from participating in the “latest . . . trends and issues” in the VR game-playing community. Id. ¶ 33. This causes Plaintiff “frustration, anxiety, humiliation, loss of enjoyment, and anger.” Id. ¶ 34.
Plaintiff Sufficiently Alleged That Viveport Infinity Is a Place of Public Accommodation
- The ADA defines a place of public accommodation as anything fitting into one of the categories listed in 42 U.S.C. §12181(7).
- While the Second Circuit has not yet considered a case where a defendant operated no physical space open to the public but nevertheless provided goods or services to the public, a handful of district courts in the Second Circuit have interpreted analogous cases to imply that title III of the ADA extends to online fora offering goods and services.
- The court adopts and agrees with the statutory interpretation discussed at length in National Federation of the Blind v. Scribd Inc., which we discussed the settlement of here. Regarding that decision, which we discussed here, the court said as follows: 1) the meaning of public accommodation under the ADA is ambiguous; 2) adopting a narrow interpretation of what is a place of public accommodation by requiring a physical structure or some connection to a physical threshold results in arbitrary treatment; 3) the ADA’s legislative history requires a resolution of any ambiguity in favor of the plaintiff because the Internet plays such a critical role in the personal and professional lives of Americans so that excluding persons with disabilities from access to covered entities that use it as their principal means of reaching the public defeats the purpose of the ADA; and 4) adopting such a narrow interpretation would run afoul of the purposes of the ADA and severely frustrates Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.
- In a footnote, the court says that a limiting principle is required otherwise everything on the Internet would be a place of public accommodation. This case involves a service akin to Netflix, which involved services for streaming movie and television programming. It is also akin to Scribd, which involved services for accessing collection of e-books, academic papers, legal filings, and other user-uploaded digital documents.
- The virtual reality programming could be: 1) a service establishment in that it provides customers with the ability to stream video programming through the Internet; 2) a place of exhibition in that it displays movies, television programming, and other content; or 3) a rental establishment in that it engages customers to pay for the rental of video programming.
Plaintiff Sufficiently Alleged Denial of Access in Contravention of the ADA.
- The ADA regulates access to goods and services but not the kind of goods and services offered by the regulated entity.
- Even for goods and services, the ADA requires that regulated entities ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps fundamentally alters the nature of the good or service or results in an undue burden.
- Where equal access is in question, the ultimate decision as to what measures to take rests with the place of public accommodation provided that the method chosen results in effective communication.
- While no one specific form of auxiliary aid is mandated to make out a claim under this theory, a plaintiff must plead facts indicating that a defendant refused her any means of effective communication with respect to the goods or services in question.
- Plaintiff alleged that: 1) Viveport Infinity is currently the only subscription-based platform offering virtual reality content; 2) defendants failed to provide closed captioning on its virtual reality content; 3) defendant’s failure to provide closed captioning renders much of its content inaccessible to plaintiff and other Deaf, deaf and hard of hearing individuals; and 4) plaintiff cannot understand and follow the audio portions of various virtual reality content and therefore cannot fully and equally enjoy defendant’s services. As such, a plausible inference exists that the defendant did not offer any legally sufficient auxiliary aids.
Plaintiff Sufficiently Alleged That Viveport Infinity Owns, Leases, and/or Operates a Place of Public Accommodation
- At the motion to dismiss stage, plaintiff’s allegations that the defendants own, lease, and/or operate a place of public accommodation and that they have the ability to caption all of their content just like Netflix captions all of their content is sufficient to get past a motion to dismiss.
- Defendants contention that there is a lack of sufficient facts to establish that they control, or operate the VR content, or that they have necessary intellectual property ownership or permission from the owners of the virtual reality content to caption the content is an issue for discovery and not an issue on a motion to dismiss.
- There are two issues in this case: 1) is a place of public accommodation involved; and 2) just what is possible with respect to providing effective communications. In other words, effective communications are an additional obligation that places of public accommodation face, as well as governmental entities for that matter.
- The current status of the case is that an answer has now been filed.
- The attorney representing the plaintiff in this case, Andrew Rozynski, is the same attorney who filed a petition for rehearing in Cummings.
- With respect to what is a place of public accommodation, this court adopts the Scribd approach, which asks whether what is going on is of the type listed in one of the categories in 42 U.S.C. §12181(7).
- Look for the Supreme Court to eventually get involved in trying to figure out just how a place of public accommodation is defined. The two most common approaches in the courts are the gateway theory, which can mean different things in different courts, and the, “of the type” listed in 42 U.S.C. §12181(7), which this court adopts. Hazarding a guess as to what the Supreme Court will do is a fools errand. However, the Supreme Court very well may have telegraphed where it is going with its South Dakota v. Wayfair decision, which we discussed here. I certainly believe a plaintiff would run a risk of legal malpractice if they don’t bring up the South Dakota v. Wayfair decision to the Supreme Court when arguing whether an Internet only business is a place of public accommodation.
- Plaintiff’s are not out of the woods yet because the court said that there may be issues of intellectual property ownership in getting permission from owners so as to show that the defendant do not control or operate the virtual reality content. Definitely look for the defendants to push that as it goes through discovery.
- This is not a tester situation because plaintiff alleged that he already has and uses a virtual reality headset to play virtual reality videogame and experienced virtual reality content.
- Readers may also want to reread Silva I, which we discussed here.