Eric Goldman on the Netflix decision

Following up on our Monday posts: in an Ars Technica column, prominent Internet-law expert blogger and lawprof Eric Goldman considers the Massachusetts’ federal judge’s ruling “a bad ruling. Really terrible.” And it’s at odds, he says, with a long series of earlier decisions that had rejected the idea of websites as a “public accommodation” for purposes of the ADA.

In response, lawprof and prominent ADA advocate Sam Bagenstos says precedent in the First Circuit (which covers Massachusetts) is relatively favorable to the public-accommodation theory. And, he says, the federal government’s lawyers have long been committed to the position that the Web is a public accommodation subject to the ADA — which falls into the ever-popular category of “reassurances that leave me less reassured than ever.”


  • Will Netflix now have to provide oats for service ponies that are required for calm viewing of streaming movies?

  • Bagenstos begins with this: “One can search Professor Goldman’s post in vain for any acknowledgment of the basic, brute fact here — that inaccessible websites mean that people with various disabilities are shut off from the important aspects of civic and economic life that, more and more, take place on the internet.”

    This is, perhaps, the core question of public-accommodation. Disable people are – let’s fact the basic, brute fact here – disabled. There are things that they cannot do, or cannot do as easily as non-disabled people. When I create a web-site, why is it my job to consider the abilities or disabilities of unknown visitors?

    In the Netflix case, it is considerably worse: Netflix is expected to adapt content provided by others; something that copyright law would surely prohibit (creating derivative works).

  • […] More on the Netflix captioning ruling from Julian Sanchez and Doug Mataconis [earlier]. “I am so sick and tired of hearing people like Olson … the Walter Olsons of the world” writes Ellen Seidman [Parents mag] Don’t let her hear what Eric Goldman said. […]

  • What the people who brought this assinine lawsuit are forgetting is that THEY CAN RENT THE DAMNED MOVIE AND WATCH IT WITH SUBTITLES AT HOME. Netflix does not make these movies, they merely SUPPLY them.

    I am physically disabled due to a tumor in my spine so I cannot work. Should Netflix pay for my internet service since the cost is a hardship to me so that I can have the ability to watch one of the streaming videos? I am disabled and therefore they should have to accommodate me….but wait a moment…I can RENT the movie so no, they shouldn’t have to pay for internet service.

    Today’s society is a bunch of wimps and whiners. We can no longer give kids trophies for excelling in sports in case it hurts the feelings of a kid that is athletic. We can no longer hire the best candidate for a job or position in college because we have to fill a quota. We cannot even supply a product because someone, somewhere will bitch and moan about it not being exactly the way THEY want it then we will get sued and it will cost millions of $$$ for nothing.

  • I’m still unsure as to whether Netflix could legally create and distribute subtitles. Wouldn’t the creation of subtitles be considered a derivative work from a copyright point of view? It’s one thing for the studio (and copyright owner) to create and publish subtitles, it’s another for a third party to do so.