Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.