On Monday, the National Association of the Deaf (NAD) announced a settlement agreement between it and VUDU, Inc., a wholly owned streaming entertainment subsidiary of Walmart, in which VUDU has agreed to caption 100% of movies and television programs streamed online through VUDU’s Video on Demand Service.  NAD is a non-profit civil rights advocacy group of, by, and for deaf and hard of hearing individuals.  In the agreement, VUDU agreed to, by January 16, 2015, ensure every title in its online catalog is closed-captioned or subtitled, and to caption all newly-acquired content as soon as that content is made available to the public.

The agreement does not address whether Vudu or the providers of the videos and other content Vudu streams on its service is responsible for providing the captioning; Vudu simply commits to provide the content with captioning or subtitles.  The only exception to this general commitment is in cases where a video programming owner provides Vudu with non-English-language-based content containing English language subtitles.  In that case, the agreement allows Vudu to use that English-subtitled version in lieu of Closed Captioning as long as Vudu has used diligent efforts to obtain Closed Captions or subtitles that describe the audio content of programming, such as speaker identification, sound effects and music description.  The agreement prohibits subtitles from being used for programming required to be captioned under the Communications and Video Accessibility Act or when Closed Captions or Subtitles for the Deaf and Hard of Hearing are available. 

The agreement also requires Vudu to provide customer service representatives with documentation and training regarding handling questions about captioning issues.

The agreement remains in effect until May 31, 2018.

Captioning of videos and other online content has been a hot topic recently in the ADA Title III space in various forms.  In 2011, NAD sued Netflix over its streaming service and received mixed results due to a conflict in the courts as to whether a web-only video streaming business is a place of public accommodation covered by Title III of the ADA, as we reported here and here.  Ultimately, NAD and Netflix entered into a consent decree that, similar to the Vudu agreement, required closed captions in 100% of Netflix’s streaming content.  In a different context, the Department of Justice is working on rules that would govern the obligation of movie theaters to show movies with closed captioning and audio description, but has only issued proposed regulations.  In yet another slightly different context, a Court rejected a deaf plaintiff’s claims that Redbox violated Title III by not making more closed-captioned videos available at its DVD rental kiosks and that Redbox Digital failed to closed-caption all of its online videos that were available for streaming.  The Court reasoned that a public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities in the form of captioned videos at its kiosks.  The Court also found, following Ninth Circuit precedent, that Redbox Digital did not have to caption its library of web-based videos for deaf or hard-of-hearing consumers because a website is not a place of public accommodation under Title III.

This is a new frontier, and clearly a high priority for deaf advocates.