Netflix has agreed to offer closed captioning on all streaming video by September of 2014 in order to settle a lawsuit filed by the National Association of the Deaf.
The deal, approved today by U.S. District Court Judge Michael A. Ponsor in Massachusetts, resolves a complaint alleging that Netflix violates the Americans with Disabilities Act by failing to provide closed-captioning. The agreement also requires Netflix to pay $755,000 to the National Association of the Deaf's for attorneys' fees and court costs.
Earlier this year, Netflix unsuccessfully argued that it need not offer closed captioning because its online video service isn't considered a "place of public accommodation" under the ADA. The video company argued that the landmark anti-discrimination law, passed more than 20 years ago, only applies to brick-and-mortar retailers and not to businesses that exist solely in cyberspace.
Netflix also argued in court papers that offering closed captions potentially infringes copyright. That concern probably was more theoretical than realistic, given that movie studios weren't likely to risk the bad publicity that would result from suing because of captions.
But even if Netflix was genuinely anxious about copyright liability, a decision this week in an unrelated case -- a lawsuit by the Authors Guild about book digitization -- could go a long way toward putting those fears to rest.
In that case, U.S. District Court Judge Harold Baer in New York ruled in favor of universities that digitized books and made them available to blind readers via special software.
Assuming that other judges follow Baer's reasoning, companies like Netflix are likely to be protected from liability for offering closed captioning, according to copyright expert James Grimmelmann, a professor at New York Law School. "If producing versions of the work for the print-disabled and giving it to them is fair use, then the much lesser step of adding captioning has to be fair use," he tells MediaPost.
That result makes a lot of sense. Hopefully he'll be proven correct.