Updates on the Netflix Cases

BY HAYLEY KOTEEN

Cullen v. Netflix

As many of you know, back in March, 2011, Don Cullen and NAD filed a lawsuit in California Federal Court arguing that Netflix’s failure to provide captioning to more of their instant streaming titles. Recently, Netflix moved to dismiss the case arguing based on a number of legal theories. First, Netflix argues that based on the passage of the Twenty-First Century Communications and Video Accessibility Act (“TCCVAA”), Congress granted the FCC with the power to determine legal issues related to captioning. Thus, according to Netflix, the claim must be dismissed because the Federal Court does not have the authority to decide the issues related to Mr. Cullen’s and the NAD’s cause of action. Next, Netflix argues that because the Ninth Circuit has previously held that the Internet is not a physical place, that Netflix.com is not considered a public accommodation under the ADA, thus they are not required by the ADA to caption all of their video. Netflix’s third argument is that the California State laws do not protect the plaintiffs in this case because they are preempted by the TCCVAA.

In other words, Netflix claims that if the court found a violation under California State law that it would directly conflict with the TCCVAA and thus the court must follow the federal law instead. Finally, Netflix argues that there are no consumer protection violations because the plaintiffs had argued that Netflix’s failure to caption violated consumer protection laws.

Netflix began its argument with a sassy remark stating: “What happens when an online merchant, with no obligation to do so, voluntarily changes its product content to address customer suggestions? A lawsuit—for not making the changes fast enough.” I found this remark to be quite insensitive toward the needs of the Deaf and hard of hearing community. This is not simply a change to address consumer needs! This is a change that would allow equal access to those that rely on captioning to enjoy Netflix programming. Netflix here is taking a “woe is me” attitude and arguing that by addressing consumer needs and creating online streaming that they are now punished with a lawsuit because they are not captioning all of their programming. Personally, I don’t feel bad for them. They are making significantly more money because they offer online streaming and that is the risk that they took by adding such a popular service to their business.

It’s very unfortunate that Netflix will not just do the right thing and agree to the demands of the two lawsuits. Litigation will be time consuming and costly and Netflix could instead direct those resources to implementing full captioning of their streaming materials. Don Cullen and the NAD will have an opportunity to reply to Netflix’s motion to dismiss. Those replies are due on September 5, 2011 and I look forward to reading them.

NAD v. Netflix

In similar fashion to its lawsuit against Netflix in the Northern District of California, the National Association of the Deaf (“NAD”) along with the Western Massachusetts Association of the Deaf and Hearing Impaired (“WMAD/HI”) and plaintiff Lee Nettles filed a complaint on June 16, 2011, in Massachusetts Federal Court, alleging a violation of the Americans with Disabilities Act (“ADA”). Like in Cullen v. Netflix, the plaintiffs allege that Netflix violated Title III of the ADA for its failure to provide equal access to Netflix instant streaming. The complaint requests injunction and declaratory relief, which would require Netflix to caption its streaming content. Netflix moved to dismiss the case on July 29, 2011 based on the notion that Netflix believes the Massachusetts case is essentially identical to Cullen v. Netflix. In the alternative to dismissal, Netflix requested the court transfer venue to the Northern District of California where Cullen v. Netflix is currently being heard. Finally in the alternative to transferring venue, Netflix requests that any decision wait until after the FCC promulgates rules and regulations related to the TCCVAA. On August, 9, 2011, the plaintiffs filed an amended complaint, which addressed the procedural and jurisdictional issues. I look forward to following this case for updates at they come in.

Those are all of the updates for now on the two Netflix cases. Check back at the end of September to follow up on Cullen v. Netflix!


ABOUT HAYLEY KOTEEN Hayley Koteen graduated from Towson University with a B.A. in Deaf Studies and Social Science. As an undergrad, she worked for the Maryland Governor's Office of the Deaf and Hard of Hearing as well interned one semester at the Maryland General Assembly with Delegate Kirill Reznik of District 39. Currently a second year law student at Yeshiva University's Benjamin N. Cardoza School of Law in New York, she hopes to pursue a career in deaf law after graduation. As a future attorney for the deaf community, she aspires to advocate to better implement laws such as the ADA, and to improve access to interpreters in courts and social service agencies.