ADA regulations may be delayed an impossibly long time for websites. So where does that leave Hollywood?

Seven Hollywood studios are facing a civil rights lawsuit from members of the Alexander Graham Bell Association for the Deaf and Hard of Hearing filed in October, contending Hollywood is violating various laws by refusing to provide more captioning or subtitling of song lyrics. Last week the studios filed for dismissal—and they may be right. But though Hollywood may have some wiggle room here, it’s unlikely it’s permanent.

As it stands, the case is about something that might not strike hearing communities as vital: Captioning on music lyrics in films and tv shows. But the eight plaintiffs argue that by not including the lyrics to a song, it can leave deaf or hard of hearing folks out of the loop. Many shows utilize music and lyrics as a way to communicate with the audience and set the tone for the scene; with examples ranging from the title song of “Gilligan’s Island” to “Knights of the Roundtable” in “Monty Python and the Holy Grail” and beyond. Eliminating subtitled lyrics on screen essentially pull deaf or hard of hearing people—ten percent of the U.S. population—out of the audience as long as the song is playing.

“If songs in movies are not important enough to caption then logic says they aren’t that relevant to the total movie experience, which I think any movie creator would disagree with nowadays,” said Dr. Pauline Newton, one of the plaintiffs, in a statement.

The question is, whether the law backs them up on it—and the answer to that is, it’s murky.

As the DOJ’s promise of guidance for website accessibility continues to get moved down the road, businesses and disabled communities have been grappling with where the line should be drawn.

When these laws were written they didn’t have technology that we have around today,” said Mihn Vu, partner at Seyfarth Shaw and author on their ADA Title iii and Employment Law Lookout blogs. “And so we have all these technological developments, and laws that aren’t written with those in mind…and that’s a gray area”

Which is part of the studios—Disney, Warner Bros., Universal, Paramount, Netflix, Sony, and Buena Vista Home Entertainment— are arguing. Last week they filed a pair of dismissal motions (unsurprisingly) finding a number of problems with the plaintiffs’ case and stating that they have no standing to make any such requests. On their part, they argue, there has been no misrepresentation of what they’re doing; no reasonable consumer would think song lyrics were meant to be included in any captioning. What’s more, studios argue that there’s no precedent or law for studios needing to caption all their content. As The Hollywood Reporter writes:

Express legal obligations to caption came via the Telecommunications Act of 1996 and the 21st Century Communications and Video Accessibility Act of 2010, and once those laws were passed by Congress, the FCC swung into action with an attempt to write regulations and enforce them. But the studios say the standards pertain to broadcast television, not to DVDs, theaters or streaming.

“Simply put: No law requires the Studios to caption all song lyrics, for all movies and TV shows, across any — much less all — of the distribution channels Plaintiffs target here,” states a motion to strike.

…”The Studios remain free to caption or subtitle some but not all song lyrics, exactly as Plaintiffs admit they have done,” say the defendants. “To hold otherwise would improperly limit the Studios’ exercise of creative discretion.”

If it sounds a bit ignorant it’s because it arguably is. But it’s also a big undertaking currently being stared down by thousands of businesses.

“There is no guidance for subtitles of music used in movies. Or whether, in fact, every video on your website needs to have closed captioning, even if it is of wholly general interest and has nothing to do with the services you provide. Is there a clear answer in regulations? No. And the result is we’ve got this wild west environment with lawsuits cropping up all over the place,” said Vu. According to her, a sophisticated website or project could mean thousands of dollars of fees to become fully accessible—and even then there’s no formal code as to what that would look like.

“To me it seems like a fundamental violation of due process to impose obligations businesses have no notice around. The law has to at least be clear of what it expects of you,” said Vu. “Conceptually these laws could be applied, but there’s also a lot of complications with just trying to apply them to new technologies.”

It helps that the plaintiffs didn’t go complain via the ADA, choosing instead to use California’s Unruh Act, which Vu says more broadly defines “business establishment,” a major sticking point for current interpretations and applications of the ADA. Only time will tell if courts pick up the “creative discretion” argument they’re laying down, or if the Unruh Act (as well as a handful of unfair business laws) is enough to overcome it. But even if they win, it’s more than possible the studios are just saving this fight for another day.

Photo Credit: dno1967b cc
Photo Credit: dno1967b cc

Ebay, Netflix, Target, Scribd; the list goes on for sites who have dealt with some sort of accessibility complaint. Netflix, specifically, settled for the unusually large settlement of $795,000 and a promise to caption all of their content by the end of 2014. With more than three billion Internet users in the world, the web has drastically shifted from the cyber-world it once was to a basic tool in most people’s everyday. About 40 percent of the world has an Internet connection, and over five percent of the world’s population is deaf or hard of hearing, and there are similar numbers for visually impaired people. As a business practice, it’s hard to argue that taking the extra step to help out disabled consumers is a smart one.

Especially since it seems unlikely that regulators will ever walk back on criteria for delivering content to disabled communities. As it stands now, ADA Title iii complaints have continued to rise, seeing an eight percent increase in the last year.

“Technology when the ADA was first passed, and for maybe the 15 years after that, were mainly concerned with physical access. Just getting through the door of brick and mortar establishments. Now it’s a new frontier; it’s wholly digital,” said Vu, who says that a very real goal of this lawsuit could be to simply raise awareness. “I think that most businesses are having a realization that accessibility in the digital world is here, and there’s a need for it. And most see they can’t really wait until the DOJ issues regulations anymore.”

If they want to wait (and fight lawsuits while they do) that’s their prerogative. But it seems like if the writing’s on the wall, there may as well be subtitles as well.