Braille Monitor                                              August/September 2014

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Enforcing the Law of Inclusion: A Personal and Professional Journey

by Daniel Goldstein

From the Editor: Advocacy depends on a worthy cause, volunteers who support it, and often on paid people who have expertise that cannot be provided without the training they bring in their professions. We hire competent, capable, and passionate lawyers to make our case in court, and Dan Goldstein is one of our best. He is not only someone we hire; he is someone who believes in us, believes deeply in the worthiness of the cause we embrace, and has taken as one of his major life’s commitments seeing that we get the information necessary to engage in the larger community. Here are remarks Dan made during the first afternoon session of the 2014 Convention:

Thank you Dr. Maurer, and good afternoon, fellow Federationists. I have to say after listening to Eve Andersson that I'm more in the mood to party than I am to give a speech, but first things first.
Imagine waking up every morning and getting to ask yourself what you can do today to make the world more like the world you would like to live in, and then spend the day with the tools and resources to make that happen. This is the gift that the National Federation of the Blind has given me daily for the last twenty-eight years, unexpectedly and blessedly.

Representing the NFB is a great and humbling responsibility; true, but far more, it is a joyful task, one that, second only to my family, has given meaning to my life. To a great extent being one of the lawyers for the NFB is who I have become—this is what I do and I can imagine no higher calling.

So how did I land this gig? In 1986 twenty-one Randolph Sheppard vendors in Maryland, led by Don Morris, decided to stop paying their set-aside to protest the state's failure, after a decade, to rewrite its rules to comply with the 1974 amendments to the Randolph-Sheppard Act. Although it had long been illegal, Maryland was still collecting set-aside based on gross revenues and had not created a Committee of Blind Vendors. When twenty-one vendors decided to stop paying until Maryland started to comply with the law, Maryland retaliated by threatening to terminate their licenses.

NFB's first choice to represent the Maryland vendors had a conflict of interest and recommended me. When Dr. Maurer called and asked me to meet with him and Dr. Jernigan, I had no inkling that I had reached a major and dramatic turn in my personal and professional life.

Let me take a minute to tell you what I knew before that meeting at the center at that time about disability and disability rights, about the blind and what it means to be blind. [Pause] Well, that didn't take very long. Apparently I was not the first smart ignorant lawyer that NFB had encountered, so I was required to spend a day or two reading speeches by Drs. tenBroek and Jernigan, as well as Dr. tenBroek's seminal article. The idea was that I should learn something about the NFB if I was going to represent it.

What I read resonated with the core of who I am as a person. It was written in the language of civil rights and spoke of things that I fervently believe must be part of the world we must make for ourselves to live in—equal opportunity, human dignity, being recognized for who you are—in short, the NFB philosophy reflected what I believe we must achieve in our society—but written through the lens of blindness.

Over my life to that point I had thought a lot about our country's vices in excluding our neighbors on the basis of race and gender, but I had never thought about disability. I was hooked.

I took on the case for the Maryland vendors, gave it my best shot, and lost. Well, technically I lost. For a decade the state of Maryland had done nothing to bring its vendor operation into compliance with federal law. Two weeks after we filed suit, Maryland published the proposed regulations it had failed to propose for ten years. Less than four months after we filed suit, those regulations went into effect. The vendors were all reinstated and didn't have to repay the gross set-aside they had refused to pay. A year after we filed suit, when we had everything we had wanted, we had our court hearing. The judge said we should have sought administrative remedies before coming to court, unfazed, apparently, that without the regulations, such remedies didn't exist. So we said, "Fine, Judge, thank you very much," and went home knowing that we had used a lawsuit to change the way the state treated its blind vendors. I will take a loss like that every day of the week and twice on Sunday.

In the last twenty-eight years my law firm has opened up nearly four hundred matters for the NFB or NFB members. You will be glad to know that I don't intend to tell you about all of them, but as I walked around convention with my wife yesterday and this morning, it seemed I couldn't go ten feet without seeing someone I had been privileged to represent. And I stood up a little straighter as I told Laura, this is who this person is, and this is what that case was about.

We weren't always the ones doing the suing. Dr. Jernigan wrote an article about a vocational rehabilitation office in Pittsburgh that only bought assistive technology from one vendor—who happened to be the husband of one of the voc rehab counselors. In the article Dr. Jernigan referred to these activities as "skullduggery." What a wonderful word. Skullduggery. I never knew precisely how to define skullduggery, but I knew that Dr. Jernigan and Barbara Pierce, who was being sued for being the editor of the Monitor, had a First Amendment right to say it when they wanted. The court agreed. I haven't seen "skullduggery" in the Monitor since, but when the occasion arises, I am sure we will see it again.

It is Dr. Maurer, my friend, my leader, and my mentor, who has given me the opportunity to be one of the NFB's lawyers, part of an extraordinary knights' round table that includes my partners Sharon Krevor Weisbaum, Joe Espo, as well as Scott LaBarre and Tim Elder.

If representing the NFB were not bounty enough, I have had twenty-eight years to witness how Dr. Maurer combines passion with pragmatism, conviction with humanity and grace, leadership with empowerment, certainty with curiosity, and kindness with rock hard determination. Any hour I spend with him is an education—maybe about wine, maybe about something more profound. He may not be standing for re-election as president, but, Dr. Maurer, the bad news is that your term as my mentor is life without parole.

But the time for nostalgia has not yet come, and frankly, looking back always puts a crimp in my neck.

There is a cataclysmic battle being waged. It is one we cannot afford to lose, and it does not yet seem that we are winning. That battle is the battle for equal access to information. If the blind do not have the same access to information as everyone else, then it is sheer nonsense to talk about equal opportunity in education, the workplace, our culture, and true integration in our society.

Dr. Maurer had the foresight in 1998 to realize that digital technology and content would either provide a mechanism for mainstream access or would deepen the segregation and exclusion of the blind. He realized we could not simply be reactive and bring cases based on what complaints we had or had not received, but that instead, we must pursue a strategic plan and stay one step ahead, not two steps behind.

My role has been and is subsidiary to a multi-pronged approach that includes not only litigation, but creating our own technology, pressing for new legislation and regulation at both the federal and state level, demonstrations, negotiations, and education.

Having equal access to America circa 1990 is absolutely worthless in 2014. The right of the blind to live in the world must include the virtual world. The internet is not a luxury. It is the door through which knowledge and information lie. I ask you: Do we want to have the same access to that information that everyone else has?

Today, 80 percent of all jobs are posted on the internet. The job applications are on the internet. The job assessment tests are on the internet. Do we want the job sites to be accessible? Do we want the job applications to be accessible? Do we want the tests to be accessible?

When you have a job, there is no reason why you should not be able to use the technology that is on the job. I remember accessible work phones. First they had ten holes, and you moved the dial counter-clockwise and, this will come as a shocker to younger people, phones were used to make phone calls. Then phones had ten buttons, and you pressed the buttons. Then phones had additional buttons at the bottom for multiple lines, so you could put one person on hold while you talked to another. And you know what: for decades phones were accessible to blind persons.

But you know in America we always make progress and invent something that wasn't there the day before, so now, in its infinite wisdom, the US Government has started to install phones at the Department of Homeland Security and the Department of Labor that are inaccessible to blind people. Is this progress? No, obviously not, but elsewhere we have had meaningful progress.

In 2009 in Detroit I stood before you and made a promise. I said that, because of the efforts of the NFB, we would have something we had never had in our history. You remember that—same books, same time, at the same price. And I said I did not know whether it would be a year, two years, or longer, but have it we would. And, when I made that promise, there was not a single book in copyright that we could get at the same time and at the same price and in the same way as everybody else.

In 2011 in Dallas I told you with great excitement that we had made great progress. Because of NFB's efforts, Apple introduced the iBook in April 2010, with over 200,000 accessible copyrighted books, and then Blio came out with what was then 300,000 more and that seemed like a lot. Same content, same time, same price. What it was, was a good start. But you know what that wasn't? It wasn't equal access to all the information available to those who can see—not even close.

You know, when I was in the fourth grade I did a report on Millard Fillmore based on what I found in the library, and in the seventh grade, I went back to the library and did a report on manatees. I took library research for granted, and for most of my life there have been two things you needed to do library research, whether at the elementary school level or post-graduate: affiliation with a library and the ability to see. With those two things the historical, literary, cultural, scientific, collective and collected knowledge was there for the asking. I could go into the stacks, pull books off the shelves, check the index, table of contents, skim and see if I wanted to check this book out or put it back on the shelf and, after a while, I left the library with a stack of books under my arm to read.

But the idea that all of the content of libraries could be fully available to the blind to the same extent and as quickly and easily as it was to the sighted was the stuff of science fiction. Print is a visual experience, and libraries are composed of print books. Independent access to library books requires sight, and that is all there is to that—or so it seemed.

Today I can stand before you and tell you that the library doors are swinging open, that eleven million books will soon be available to you within seconds of turning on your computer, iPad, or phone. And that is just the first step. The day is not far off when you will be able to summon all of the cultural, scientific, and literary wealth of our nation's libraries to your fingertips.

How did this happen? It's a great story, one that starts, appropriately, with a mild-mannered Federationist getting annoyed enough to do something about the source of his annoyance. In the 1980s George Kerscher was in graduate school in Computer Science at the University of Montana, but he had a small problem—no accessible textbooks. Now George is not much in the complaining department, more of a problem solver, so he responded to that problem by inventing the commercial e-book. He founded a company called Computerized Books for the Blind. George thought that when sighted people caught on, there would be plenty of e-books, usable by everyone, with or without sight.

I don't want to engage in stereotypes, but sometimes we sighted folks are not, how shall I put it, always the sharpest tool in the toolbox, so there was a bit of a wait—sixteen years in fact. But in 2004 Google approached the University of Michigan and suggested digitizing Michigan's entire library. What Michigan got out of the deal was a copy of its entire library in digital format. This was something it had long wanted, both for preservation and search purposes, but could not afford.

Jack Bernard, the in-house lawyer for the University of Michigan library, immediately saw the possibilities for the blind and pushed for this digital library to be accessible. Dr. Maurer immediately reached out to Google about making sure that these digital books would be accessible but was flatly told that wasn't in Google's plans. I don't want to shock anyone, but Dr. Maurer didn't take no for an answer. In fact, Dr. Maurer was annoyed.

So now we have two annoyed Federationists. First, George Kerscher and now, Dr. Maurer. That's dangerous.

In the meantime, Google was entering into similar partnerships with the Universities of California, Indiana, Cornell—I think the current number of libraries Google is copying is somewhere between eighty and one hundred library collections.

So in 2005, George Kerscher, Dr. Maurer, a copyright professor named Peter Jaszi, Anne Taylor, and I started traveling to all of these schools to explain why they needed to tell Google that accessibility had to be part of the deal. Well, after we had met with five schools, Google told the schools that it, too, thought accessibility was important. At Jack Bernard's insistence, Google's commitment to accessibility was formally noted.

By 2008 the University of Michigan had about eight million copyrighted books back in digital format. Sighted scholars could put in search terms and find out what books had those words, but they could not have full access to the content. They could put in the words "cane travel" and get back all of the books and all of the page numbers on which the words cane travel could be found.

But if you were a blind student or faculty member at the University of Michigan, it was a different deal. You got a password that gave you digital access to every dadblamed word of every book in the collection.

Well, the Authors Guild didn't like this mass digitization, and in 2011 the Guild sued the University of Michigan, four other universities, and the HathiTrust, which is essentially a service of the University of Michigan that administers the whole digital archive for all the universities. The Guild claimed that making these digital copies was copyright piracy on a massive scale.

This annoyed Jack Bernard, the in-house lawyer for the University of Michigan, who called me and said the NFB should intervene in the lawsuit as a defendant to protect the interests of the blind. Did I not mention that Jack is blind and an NFB member?

So we now have three annoyed Federationists—kind of tells you right there how this story will come out. You know I grew up in Texas and always heard the story about one riot, one Ranger—kind of like that.

So we joined the lawsuit on behalf of the NFB and three blind scholars. Why did we do that? Let me read you the opening paragraph of our brief to the Second Circuit.

Courtney Wheeler refrains from taking courses requiring library research. Blair Seidlitz does not read recommended supplementary texts to complete his physics classes. The prospect of limited library access convinced Georgina Kleege not to pursue a graduate degree in English after she received her bachelor’s from Yale. Because they are blind and for no other reason, they have had little or no access to the contents of libraries that are so freely available to their sighted peers. We meant to change that.

The constitution grants a limited property right called a copyright for the purpose of "advancing Science and the Useful Arts." That monopoly is not intended to extend to preventing those things that will frustrate the progress of knowledge, thus some uses are considered fair uses of copyright materials and do not require the permission of the copyright owner.

Do you all think that it would advance science and the useful arts to give blind people access to eleven million books? Well so does the United States Court of Appeals for the Second Circuit.

Here is the critical part of their decision: “Weighing the factors together, we conclude that the doctrine of fair use allows the Libraries to provide full digital access to copyrighted works to their print-disabled patrons.”

What does this mean for the blind of America? It means that as to any and every bit of copyrighted material that currently is in an inaccessible format, that making and distributing an accessible copy is permitted under the copyright laws without the permission of the copyright owner. It means that in the coming months, NFB is going to make sure that there is a distribution network for the eleven million books and counting in the HathiTrust to make them instantly available to every blind person in this room, every blind person in this country through a logon. It means that we will find other print-to-digital conversions until every print, book journal, and article that is available to the sighted as part of our country's collective knowledge, literature, history, and science is available to you on your computer.

But above all, it means be very careful not to annoy a member of the National Federation of the Blind, because it might just cause them to change the world.

There is still plenty of work to be done, and the lawyers play only a small role. It is you, the members of the National Federation of the Blind, who will change that with your advocacy, your persistence, your unity, your willingness to go to the legislative hearing and, when necessary, to the streets who effect most of the change. But I am proud to play a role in this work, knowing that as long as there is the National Federation of the Blind, we will win the battle for equality, and we will win the battle of equal access to information.

Thank you. I am so very proud to be one of those who can say, "I represent the National Federation of the Blind."

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