by Gary Wunder
At the 2015 Washington Seminar and as reported in the March 2015 issue of the Braille Monitor, President Riccobono said that we were involved in assisting a woman named Heidi Viens, who wanted to use the Scribd service in reading to her child. Viens has nerve damage as a result of neuropathy caused by diabetes, so reading Braille rapidly is difficult, and she desperately wants her child to develop the love of reading that she treasures.
So what is Scribd? It is a commercial online repository for texts, a paid library, a service similar to Netflix, which is a repository for movies and television shows. A subscriber pays a monthly fee and is entitled to read any of the 40 million titles that Scribd has available.
In seeking the services of Scribd, Viens’s intention was to use her iPhone or a traditional computer to have stories read aloud and to have the words highlighted on the screen for her four-year-old daughter Ava to see. Given that Scribd is one of the largest providers of children's books, it was Viens’s first choice, but its inaccessibility to blind readers is why the National Federation of the Blind became involved.
Following our usual practice, the Federation first tried to engage in discussions with Scribd to arrive at a resolution. As all too frequently happens, our overtures were ignored, so we reluctantly proceeded to the courts.
The company responded to our suit as so many do: they claimed that no law compelled them to make their content accessible and that the law we were using to make our case, Title III of the Americans with Disabilities Act (ADA), simply did not apply to the kind of business they operate. They said to the court that nowhere in this law does the word “internet” appear. They further argued that entities listed in the law were numerous and that most examples concluded with the words "and other such places of public accommodation." Claiming that their operation had no physical place the public could visit to purchase its offerings, the company asked that the court rule that the suit had no merit and that it be dismissed without the need for further action.
In pursuing this case, the National Federation of the Blind was the second to test the proposition that under the Americans with Disabilities Act the internet is indeed a place of public accommodation and subject to the provisions of Title III. In response to the argument made by Scribd, the Federation said that the word “place” was not intended to imply a brick and mortar establishment, but that in any case Scribd certainly occupies one or more physical locations for its offices and its computer equipment. We also argued that, for the judge to find in Scribd’s favor, he would have to conclude that the company did not offer services to the public that would fall under the public accommodations required by the ADA. In our brief we cited many examples in which the word “place” clearly means more than a physical location: we talk about going shopping online, about visiting a website, about visiting a chat room, and on Facebook we talk about a wall—our wall or the space of another. Even Scribd talks about its online store as “the place to go.” Clearly libraries are covered under the ADA, and what is Scribd if not a pay-for-service library?
Given that the ADA was passed in 1990, years before the widespread use of the internet and the electronic commerce it would host, we argued that its exclusion from the law was not by design and was never intended to provide an exemption for e-commerce. Instead, the Act was written with the intent of embracing new landscapes where the disabled were likely to encounter the very discrimination the law was intended to prohibit.
In cases where a statute is ambiguous and reasonable people can arrive at different conclusions about the intent of a law, one then looks at the purpose of the statute. Given the lack of consensus by the lower courts regarding the meaning of the word place and whether or not the internet is a covered entity under the ADA, we asked the judge to consider a ruling by the United States Supreme Court (Martin vs PGA) in which the court decreed that the ADA must be construed liberally to effectuate the comprehensive mandate of this law.
So where do we stand now? We have won the right to go to trial in order to argue for the right of the blind for access to the 40 million titles available through Scribd. Heidi Viens is entitled to have the same access as any other paying customer to one of the most significant sources of children’s literature in the world, and we in the National Federation of the Blind will do what we can to see that she gets that access.