A couple of weeks ago, Chris Morran at The Consumerist reported on an unexpected, but reasonable, legal decision against Netflix.
Netflix recently asked a court to dismiss the lawsuit brought by the National Association for the Deaf that alleges the company violates the Americans with Disabilities Act by not including closed-captioning on many of its streaming videos. But earlier this week, the judge in the case ruled against Netflix, allowing the suit to move forward.
Since the early 1990s, televisions have been required to be able to display closed captions in programming. It wasn’t until the mid 2000s that programs were required to carry the captioning. Clearly, allowing the suit to proceed makes sense. Netflix argued (in Thomas’ terms) “that the ADA doesn’t apply to Internet-only businesses or to services that people use at home rather than in public places.” The judge called that “irrational.”
The tricky bit here, as June Thomas at Slate summarizes well, is the technical side of things.
Back in February 2011, Netflix said “subtitles” were available on 3,500 TV episodes and movies, which together account for roughly 30 percent of the site’s available viewing. The company said it expected to reach 80 percent of viewing coverage by the end of 2011—but it does not appear to have updated subscribers on its progress toward this goal in the 17 months since. (Shows with subtitles are listed on this not terribly user-friendly page.) The problem is the subtitles are visible on computers and on devices such as phones and tablets but not on all gadgets that stream Netflix output to your television. The issue is technical, the company claims. It’s the “closed” part of the name—the ability to choose whether the captions are visible—that makes it tricky. Computers—and devices like iPhones and iPads—can handle the complex “encoding” software, whereas smart TVs and set-top boxes may or may not have the processing power to do so. (Hulu users are in the same fix. Closed captions are available on “some” of its shows for online viewing and via a limited number of Internet-connected devices.)
Netflix is up against a wall here. It acheived a solid market being able to deliver content across a wide variety of devices, from the most powerful computers to the downright humble (technically speaking) Wii. But my guess is, neither they nor their competitors designed for CCs from the start. Indeed, if they did, they may not have been able to ever get the software out. Now, they may be in a situation of not being able to comply with a federal law due to limitations somewhat beyond their control. The might have to say “Netflix no longer works on Wii, Tivo, etc”, in order simply to be in compliance with the law.
Clearly, we want a society in which people of all capabilities are able to enjoy the fruits of business and not be shut out due to things beyond their control. At the same time, we want a society that nurtures innovation and rewards people for doing new things. It makes sense that Netflix didn’t wait until perfection to deploy their software, but it also makes sense that society push them to improve the accessability of their products. It may be that a ruling against them in the actual trial spurs a new round of innovation. Hopefully it won’t put them out of business.
When Christian ethicists consider the morality of a proposed course of action, we generally often examine the case using the categories referred to traditionally as the “three fonts of moral wisdom”: intention, means, and circumstances. Intention is the goal of the action. What is it that you are trying to get done? The means is the way one tries to achieve the goal. What concrete action do you carry out to fulfill your intention? Finally, the circumstances are the surrounding conditions (including consequences) that might influence the means that you choose to achieve the intention. Except in some particular cases that we don’t have room to get into here, figuring out the right thing to do is a matter of finding the most appropriate means to achieve the best intention given the particular circumstances.
One of the tricky bits about the moral life is that, even when we agree about the intention, we can radically disagree about how we get there. For instance, everyone pretty much agrees that education in the U.S. is in bad shape. We all want to see it improve. But how to improve it, that’s the hard part. People disagree wildly about it. And for good reason. Each means has different consequences, different implications for society as a whole, and shapes those who are involved in decision-making. The means we choose profoundly effects the good that is created. Selecting the means by which we achieve our ends is often the most complicated part of the moral decision-making process.
And, even tricker: the Christian tradition has stood firm on the notion that in many cases, people of good conscience can disagree. There are lots of ways to do wrong, but sometimes there are several different ways of doing right.
It strikes me that this Netflix situation may be one of these cases where people agree about the ends, but differ on means. I find it hard to believe that Netflix wants to marginalize deaf people. I also find it hard to believe that the National Association for the Deaf want to put Netflix out of business. So, how do we find the means to move the technology forward in a way that doesn’t leave Netflix in the massive tech-startup landfill? That’s the (multi-) million dollar question.