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So You Want To See A Social Media Law Final? (2016 Edition)

Hamilton-Poster

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

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Disabilities, Netflix, LOLcats, and Katy Perry

I bet you want to know what this image has to do with the blog post, right? Well, I’m not going to tell you. You’ll just have to read the whole thing!

While I was gone there was a bit of a kerfuffle (less than a ballyhoo, more than a hoopla) about a case being allowed to proceed against Netflix on the grounds that it removed closed captioning from streaming videos in violation of the Americans with Disabilities Act.  Thinking this was an interesting issue for both social media platforms and users of those platforms, I asked a friend of mine who’s an expert in the ADA to contribute to the blog about this fascinating issue.  A few bribes (mostly BBQ related later) and…voila!…our first guest blog post from Curtis Edmonds discussing the applicability of the ADA to platforms like Facebook and YouTube, as well as large corporate content providers that use those platforms.  Enjoy!

Disability rights law and the Internet have, in a sense, grown up together.  Although the first disability rights laws were passed in the early 1970’s, it wasn’t until the passage of the Americans with Disabilities Act (ADA) in 1990 that most commercial entities were required to do anything regarding making their facilities—much less their products and services—accessible for people with disabilities.  In fact, one of the few things at that time that was reasonably and universally accessible was the Internet—if you knew about it, and if you could get on.  The Internet of the early 1990’s was largely text-based, utilizing now-ancient protocols like “Gopher” and “Veronica.” If you were blind, and had access to screen-reading software, you could browse around the Internet the same as everyone.

That started to change when Mosaic, the first graphic browser, was distributed in 1993.  As Internet speeds began to ramp up, putting graphics (crude ones, usually) on websites became possible, and then common.  Now, I can stream Caillou episodes to my kids over my wireless network through a router than connects to a fiber-optic pipeline, on my handheld iPhone.  (I don’t want to stream Caillou, you understand, but my kids like it, and they whine.)

Disability rights law has made several similar (although not as dramatic) advances since the early 1990’s.  Amendments to the ADA (sparked by adverse Supreme Court decisions) have increased the scope of coverage under the Act.  However, disability rights law has lagged behind somewhat in terms of addressing barriers to online use by people with disabilities. 

Primarily, the disability group that experiences the most online barriers are people who are blind or have visual impairments. (If you want to know what surfing the web can be like for people who are blind, turn on Microsoft Narrator and turn off your screen and try reading your average website.) However, with the growth of online video, people who are deaf also experience barriers in terms of the lack of captioning on many videos.

The most recent legal case to address the issue of online captioning is National Association of the Deaf v. Netflix.  The National Association of the Deaf (NAD) filed a lawsuit against Netflix, charging that Netflix had failed to provide captioning for streaming online video. Netflix customers who were deaf complained, among other things, that Netflix not only didn’t have captioned versions of many videos, but that it didn’t even let its users know whether an individual movie was captioned or not.

The problem with video captioning is that different laws apply in different ways.  If you want to start a 24-hour cable-TV channel that just shows videos of cats, well, it’s a free country.  But if you went ahead and did it anyway, federal law and FCC regulations mean that you would have to provide captioning for all programming.  (Which would probably just be “Meow,” over and over, but still.) Those same federal laws apply to satellite and video distribution, and probably apply to video-on-demand (although the FCC is less clear about that).  But if you wanted to sell DVDs of cats wearing cute Renaissance fair costumes and not have them be captioned, there’s no law that prevents that.  If you wanted to rent the uncaptioned versions, there would be no law to keep you from doing that (like there’s no law that says Barnes & Noble has to sell large-print or Braille books).

But what if you wanted to put videos of cats lip-synching to Katy Perry songs online, what does the law say then?  Nobody knows. That’s one reason why the NAD sued Netflix—not just to force Netflix to caption the movies they stream, but to help create legal precedent.

Netflix ‘s first line of defense was that the FCC was coming out with new sets of rulemaking regarding captioning for Internet video.  Those rules were passed in March 2012 (47 C.F.R. § 79.4 if you’re an insomniac), and were targeted at the broadcast networks and programming that is “comparable” to a TV broadcast station, but not “consumer-generated media,” which means that the video you uploaded to YouTube of your cat falling off the couch isn’t going to be regulated by the FCC anytime soon. The rule more specifically applies to “full-length” shows that have appeared on television (because that’s what the FCC is really regulating here) .  So my fictional LOLcats TV channel would have to comply with those rules and caption its online material. 

But the FCC regulations only apply to a fraction of online videos. If you want to cast a wider net and require more videos to be captioned, the best way to do that is to apply the ADA.  The text of Title III of the ADA applies a non-discrimination requirement to what it calls a “place of public accommodation.”  (Keep in mind that the ADA was passed in 1990, before anyone other than William Gibson was using the “cyberspace” metaphor.)  Netflix argued to the judge that it was not a “place” and therefore not covered under the ADA at all, and asked for a judgment on the pleadings. A federal court, in a 2002 Florida case, had ruled that the Southwest Airlines website was not a “place” and was not required to be made accessible under Title III of the ADA.  (Recent FAA regulatory actions have addressed the question of website accessibility for airlines under the Air Carrier Access Act.)

However, the federal court in NAD vs. Netflix ruled that Netflix was a “place of public accommodations.”  The judge found that the legislative history of the law supported its application to emerging technology.  Further, the judge stated that the definition of “place of public accommodations” included elements such as “service establishment” and “rental establishment,” both of which could include the Netflix website.

The NAD v. Netflix case is in its very early stages.  The judge’s decision doesn’t require that all Internet videos be captioned, or that all websites be made accessible. (Similar lawsuits, against entities like Target and Travelocity, have settled before a judge could decide the ultimate issues in the case.) Until such time as a federal court rules specifically that the ADA applies to websites in general and streaming video in particular, what does that mean for individuals and corporations who want to post video over the Internet?

More than likely, the issue is going to be resolved, one way or another, by the U.S. Department of Justice, which is responsible for most of the ADA Title III regulations. Other than a couple of written statements, and a couple of arguments in court briefs, the DOJ hadn’t ever taken much in the way of real action regarding website accessibility.  That started to change in July 2010, when the DOJ took public comments from individuals regarding the potential adoption of rules regarding online accessibility.  The DOJ specifically asked whether the proposed ADA regulations should be based on the federal Section 508 standards  or the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG).  The DOJ noted that one problem with using either standard is the changing nature of online technology—which is one of the factors that has kept the DOJ, so far, from adopting any standard.  (Both Section 508 and the WCAG require captioning of all online video.)  The DOJ also held three public hearings, but hasn’t come out with any proposed rules as of this writing.

The DOJ also faces the additional hurdle of determining what sites will be required to meet the standards.  Clearly, an e-commerce site for a large retailer will probably be required to be accessible.  The video that you made of your cat falling off the couch that’s posted to your personal website probably won’t have to be made accessible (unless you’re selling couches, or cats). But it’s far from clear whether video file-sharing sites like YouTube will have to provide captioning for user-provided content or not.  (YouTube uses voice-recognition software to provide captioning on many videos, but the captioning is only as good as the voice-recognition—and the results aren’t always accessible and can be hilarious.)

Given the uncertain nature of the law and the regulations so far, what does this tell us about whether corporations and individuals should spend the time including captions on online videos? My take is that it’s a good idea to do so now. Partly because it’s the right thing to do, and partly because most courts are going to be sympathetic to entities who have made at least a good-faith effort to provide captioning.

Captioning is time-consuming, and can be expensive (and real-time captioning for webinars and suchlike is even more expensive).  But it’s not difficult anymore. YouTube’s voice-recognition capability makes the process more like editing and less like transcribing. Not to mention that captioning adds value in terms of SEO (which is why YouTube does it). And captioning makes your video more inclusive, and I think we can all agree that that is a good thing.  And I also think we can all agree that it’s just wrong to make cats dress up in Renaissance fair costumes and lip-sync to Katy Perry songs.

Curtis Edmonds is an attorney and writer in Trenton, New Jersey.  He works for a legal services organization which does not endorse his comments respective to the lovely and talented Katy Perry.  He has appeared in a (captioned!) video with a toy monkey.

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