A review of the Target ADA case: California federal court denies motion to dismiss lawsuit over website accessibility

In the case of National Federation of the Blind v. Target Corporation, the U.S. District Court for the Northern District of California has held that it will allow in part, and dismiss in part, a lawsuit brought against Target by an advocacy group claiming that Target’s website violates the Americans with Disabilities Act (ADA).

Plaintiffs, national and state advocacy groups for the blind, claimed that defendant’s website (Target.com) is inaccessible to the blind, and therefore violates the ADA and similar California state laws. The plaintiffs have sought declaratory, injunctive, and monetary relief. Because Target.com allows a customer to perform functions related to Target stores, the plaintiffs argued, and because the website is not fully accessible to the blind, those customers are denied full and equal access and enjoyment of Target stores.

Target asked the court to dismiss the lawsuit for failure to state a claim, and presented three arguments in support: First, it argued that the ADA only prohibits discrimination in physical spaces. Second, it argued that any off-site discrimination must still deny access to a physical space. Third, Target argued that the website provides auxiliary aid in conformity with the ADA, and therefore no violation exists.

The court looked first to Title III of the ADA, which prevents discrimination against disabled persons in places of public accommodation. Title III states in part that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, [and] services … of any place of public accommodation…” 42 U.S.C. 12182(a). In rejecting the defendant’s first argument, the court emphasizes that the ADA applies to services of a place of public accommodation, and that the statute’s application is not limited to services offered in a place of public accommodation. This clear language indicates that the ADA applies to more than discrimination in physical spaces only.

The court next addressed defendant’s second argument, that off-site discrimination must deny access to a physical space to be considered an ADA violation. The court found this argument unpersuasive because the ADA prohibits non-physical barriers that keep a disabled person from enjoying the defendant’s goods and services. The court noted that because Target.com is integrated heavily with defendant’s stores, and because the website offers services and goods available in defendant’s stores, the website operates as a gateway to the store. Because the website is a gateway to a place of public accommodation, and because blind people cannot enjoy the services of the website, defendant may be violating the ADA.

The court then addressed defendant’s third assertion, that a satisfactory auxiliary aid is being provided. Defendant claims that all goods and services available on the website are also available on the telephone, and this satisfies the ADA’s auxiliary aid exception. The court rejected this argument by noting that this exception is an affirmative defense. Because the lawsuit was at the pre-trial motion phase, this affirmative defense was pleaded prematurely.

The court finished its discussion of defendant’s motion to dismiss by agreeing that the plaintiff failed to state a claim under the ADA inasmuch as the goods and services on Target.com are unconnected to Target’s brick-and-mortar stores. In a footnote, however, the court commented on the future of plaintiff’s ADA claim: “The website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its customer-base, while on the other hand it seeks to escape the requirements of the ADA.”

National Federation of the Blind v. Target Corporation, 2006 WL 2578282 (N.D. Cal., September 6, 2006).

Chicago event: Internet/IP seminar with speech by Commissioner of Patents

There is an exciting intellectual property law event coming up Chicago on the afternoon of July 27, 2006, and the registration deadline (July 21) is quickly approaching.

The Intellectual Property Law Association of Chicago (“IPLAC”) will be hosting an afternoon seminar with three panels addressing copyright, trademark and patent law. The program will end with a keynote address by Commissioner for Patents John Doll.

I will be moderating a panel discussion on copyright. The panel will consist of University of Chicago Professor Doug Lichtman, Northwestern professor Clint Francis, and Sachnoff & Weaver attorney John Hines.

Registration fee is $25 if you’re not an IPLAC member. Here is a link to a registration form. I encourage you to attend.

Two must reads: one on net neutrality, the other on Section 230 and Wikipedia

There have been a couple of very interesting articles to appear online in the past few days that I recommend.

Ed Felten has put together a very accessible primer on the technological aspects underlying network neutrality (perhaps more aptly described as network discrimination.) After reading the article, one can see that policymaking concerning the issue is much subtler than it appears at first blush.

Eric Goldman pointed me to a terrific article by Ken Myers called Wikimmunity which is slated to be published in this fall’s Harvard Journal of Law and Technology. Myers provides a detailed roadmap to the conclusion that 47 U.S.C. 230 should permit Wikipedia to escape liability for defamatory content posted by the volunteers who add content to it. It’s a brilliant analysis of Wikipedia’s history, the legislative impulse behind Section 230’s enactment, and the important cases that have applied the law.

How will MySpace.com defend itself in the recent assault lawsuit?

Techdirt reports that a Texas teenager and her mother have sued MySpace.com, claiming that it failed to protect the teenager from an alleged predator she met online who assaulted her. It will be interesting to see if and how MySpace might try to use Section 230 of the Communicaitons Decency Act, 47 USC §230, in its defense.

The closest precedent we have to look at is a case called Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001). In that case, the Supreme Court of Florida held that 47 U.S.C. §230 preempted a mother’s negligence suit against AOL arising from the illegal conduct of an AOL subscriber. The mother alleged that AOL negligently failed to terminate the account of a subscriber who used a chat room to promote the sale of obscene photographs and videos of the mother’s minor son.

Adopting the Fourth Circuit’s reasoning in Zeran v. America Online, Inc., the court held that finding AOL negligent for its failure to police the conduct of chat room participants would be to treat AOL as a publisher of the complained of conduct. Such treatment would be at odds with the provisions of Section 230, and thus the negligence action was preempted.

In the Doe v. AOL case, the alleged illegal conduct took place online. In the MySpace.com case, the alleged illegal conduct arose from an online meeting, but actually took place offline. Will that difference affect the viability of a Section 230 defense?

No COPA cause of action for DaVinci Code documentary

Pro se plaintiff Walter Viola didn’t care too much for The History Channel’s “Beyond the Da Vinci Code” which aired in December 2005. He disliked it so much that he filed a federal lawsuit against A&E Networks, claiming that it had defamed the Catholic church, and that Internet content promoting the show violated both Section 223 of the Communications Decency Act and the Children’s Online Protection Act, 47 U.S.C. §231.

The court easily dismissed Viola’s suit. Judge McVerry of the U.S. District Court for the Western District of Pennsylvania, in adopting the Report and Recommendation of Magistrate Hay, held that neither the CDA nor COPA provide for a private cause of action. “[T]he authority to enforce the CDA lies with the proper government authorities and not with a private citizen such as plaintiff.”

Viola v. A&E Televison Networks, — F.Supp.2d —-, 2006 WL 1549703 (W.D. Pa., June 7, 2006).

Blog Law & Blogging for Lawyers Seminar

I am quite honored to have been asked to speak at next week’s Blog Law & Blogging for Lawyers Seminar at the Pan Pacific Hotel in San Francisco. I will be speaking at 10:30 a.m. on Thursday, April 20, 2006 on defamation liability for bloggers and blog commenters. How humbling it will be to share the stage with Professor Raymond Nimmer, who will discuss intellectual property ownership issues relating to blogging.

The two-day seminar will feature appearences from a number of true law-and-technology luminaries, among them Kurt Opsahl, Lauren Gelman, Mia Garlick, and Denise Howell. My friend Dennis Crouch of the Patently-O blog is a co-chair of the seminar, and I thank him for the opportunity to be a part of this very interesting event.

If you’re a reader of InternetCases.com and you plan on being there, be sure to say hello.

Court predicts Internet will overtake Yellow Pages as top advertising medium

“Information superhighway” may one day surpass the preeminence of the phone book.

When it printed an edition of the Evansville, Indiana Metropolitan Area Yellow Pages, Ameritech Publishing accidentally left out Robert Pigman’s name from his law firm’s ad. Pigman filed suit against Ameritech, seeking damages from the business he lost due to the omission. Ameritech moved for summary judgment.

Citing to an “exculpatory clause” in the advertising contract, which limited Ameritech’s liability to the price Pigman’s firm paid for the ad, the trial court granted Ameritech’s motion. Pigman appealed, asserting that the exculpatory clause was unconscionable and void as against public policy.

The appellate court agreed with Pigman and reinstated his lawsuit against Ameritech. Applying “greater judicial scrutiny” because of the nexus between Yellow Pages advertising and the regulated public telephone service, the court held that the advertising contract was a “contract of adhesion.”

Because of the overwhelming pervasiveness of the Yellow Pages, Pigman had been left with no other meaningful choice but to accept the unreasonable limitation of liability clause. The clause was, after all, nothing more than an illusory promise, since it only required Ameritech to return money it hadn’t actually earned.

The most interesting part of the opinion, however, comes at footnote 6, where, in discussing the great importance of Yellow Pages advertising, the court takes a moment to prophesy about the future of the Internet as a medium of commerce:

We observe that sometime in the not very distant future, when every home and business is online, people may do their shopping for goods and services through the Internet. When that occurs, the printed Yellow Pages directory will no longer enjoy the unique market penetration which it does today. Then, the print medium will be preempted by the information superhighway, and the printed Yellow Pages will no longer enjoy preeminence. Today, when an error is made, the error persists for a full year until the next edition is published. When the Yellow Pages is on the Internet, errors in advertising copy will be corrected with a few keystrokes, and such instant mitigation may well obviate a claim for damages of the kind presented in this case.

Are we there yet?

Pigman v. Ameritech Publishing, Inc., 641 N.E.2d 1026 (Ct. App. Ind. 1994).

Court okays unjust enrichment claim in content scraping case

Plaintiff ShopLocal sued defendant Cairo, its competitor in the online advertising industry. ShopLocal accused Cairo of unauthorized use of a content scraper, whereby Cairo accessed and republished advertisements created by ShopLocal. [Read about other litigation involving Cairo.]

In addition to claims under the Computer Fraud and Abuse Act [18 U.S.C. 1030 et seq.] and for common law trespass to chattel, ShopLocal asserted claims for breach of contract and unjust enrichment. Cairo moved to dismiss the unjust enrichment claim, asserting that ShopLocal should not be permitted to recover for both breach of contract and unjust enrichment in the same action. Because ShopLocal had not pled unjust enrichment as an alternative cause of action, Cairo argued, ShopLocal had failed to allege a claim upon which relief could be granted.

The U.S. District Court for the Northern District of Illinois rejected Cairo’s argument, and denied the motion to dismiss. The court held that under Illinois law, an unjust enrichment claim may be predicated on either a contract or tort theory. Because ShopLocal’s unjust enrichment claim was based in tort, it could stand alone without being pled in the alternative.

ShopLocal LLC v. Cairo, Inc., (Slip. Op.) 2006 WL 495942 (N.D. Ill., February 27, 2006).

Does FON have some legal hangups?

There was some buzz this past week with the announcement that Skype and Google have both put their support behind the startup known as FON. Simply stated, FON provides the means for broadband subscribers to share their Internet connections with others through wi-fi hotspots. It’s a good idea in principle, but as this article from Forbes.com points out, the endeavor is not without its potential legal obstacles.

As the Forbes.com article observes, FON is cavalierly moving forward even though many broadband users’ agreements with their ISPs prohibit the sharing of accounts. Aside from these contract issues, some other possible questions concerning individual liability for FON users remain.

For example, what if a user sharing a connection distributed infringing content through that connection? Would the primary subscriber be considered an online “service provider” as that term is used in the safe harbor provisions of Section 512 of the Digital Millennium Copyright Act? Perhaps, but that’s probably not what members of Congress had in mind nearly a decade ago when they drafted the DMCA.

What about liability for making defamatory statements through a shared connection? Would the primary subscriber be immune from liability as a publisher under Section 230 of the Communications Decency Act? Once again, although there’s a good chance that the subscriber would find immunity under statute, the situation is quite different than that contemplated by the drafters of the legislation being applied. [More on Section 230 immunity]

Finally, what about distribution of obscene or illegal content? The average Internet user might be a bit uneasy about his or her IP address being associated with illegal pornography or the “chatter” of terrorists.

FON’s FAQ page states unambiguously that users would not be responsible for “illicit” activities of others conducted through a shared Internet connection. Perhaps that’s true, but a wise consumer should question whether the answer is as clear as FON would like it to be.


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