Supreme Court says blind people can sue retailers if websites are not accessible

• Court, Supreme
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The Supreme Court cleared the way Monday for blind people to sue Domino’s Pizza and other retailers if their websites are not accessible.

In a potentially far-reaching move, the justices turned down an appeal from Domino’s and let stand a U.S. 9th Circuit Court of Appeals ruling holding that the Americans With Disabilities Act protects access not just to restaurants and stores but also to the websites and apps of those businesses.

Guillermo Robles, who is blind, filed suit in Los Angeles three years ago and complained he had been unable to order a pizza online because the Domino’s website lacked the software that would allow him to communicate. He cited the ADA, which guarantees to people with a disability “full and equal enjoyment of the goods and services … of any place of public accommodations.”

Lawyers for Domino’s agreed the provision applied to its brick-and-mortar pizza locations, but not its website.

Last year, however, the 9th Circuit ruled for Robles and said the law applied to its online services as well as the stores.

“The ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind,” the appeals court said in January.

The U.S. Chamber of Commerce and business groups that said they represented 500,000 restaurants and 300,000 businesses joined in an appeal urging the high court to review the 9th Circuit’s decision. They complained of a “tsunami of litigation” and worried that judges nationwide would see the appeals court’s decision as “imposing a nationwide website-accessibility mandate.”

But without comment or dissent on Monday, the high court said it would not hear the case of Domino’s Pizza vs. Robles.

This is not a formal ruling upholding the 9th Circuit decision, and the justices could agree to take up the issue later if lower courts are divided. But for now, the court’s action strongly suggests that retailers will be required to make their websites accessible.

Joseph R. Manning Jr., a Newport Beach lawyer who represented Robles, said the high court made “the right call. There can be no debate that the blind and visually impaired require accessible websites and mobile apps to function on an equal footing in the modern world.”

Mark Whitley, president of Easterseals Southern California, praised the high court for “supporting the values … the ADA was built upon.”

Domino’s and the National Retail Federation issued statements saying they were disappointed in the court’s refusal to hear the case. The 9th Circuit sent the case back to a district judge in Los Angeles to decide whether Robles suffered discrimination.

“We look forward to presenting our case at the trial court. We also remain steadfast in our belief in the need for federal standards for everyone to follow in making their websites and mobile apps accessible,” Domino’s said its statement.

Court upholds FCC repeal of net neutrality but allows states to regulate internet

• Court, upholds
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unpopular repeal net neutrality. However, the court ruled the agency’s attempt to preempt individual states from creating new rules to regulate ISPs and telcos was illegal.

The backstory. Net neutrality was passed during the second term of the Obama administration and basically prevented ISPs from creating fast and slow lanes to prioritize or discriminate against content types or publishers. FCC Chairman Ajit Pai, a former Verizon lawyer, had argued that net neutrality was stifling “innovation” and the rules were repealed on a straight, party-line vote in December 2017.

Since the FCC’s new rules went into effect last year, telecos started throttling YouTube and Netflix. However several states, including California, enacted legislation to effectively restore net neutrality or similar protections. The California law, in particular, prevents internet service providers from blocking or slowing traffic or extracting payments from content publishers for “fast lanes.”

FCC was sued immediately. Shortly after euphemistically labeled “Restoring Internet Freedom Order” was passed it was confronted by legal challenges, which reached their climax in the DC Circuit’s decision yesterday. A number of internet companies, including Mozilla, state attorneys general and non-profits had sued to stop implementation of the FCC’s Order on several legal grounds.

The court’s opinion (.pdf) upheld the agency’s broad authority to change the rules but remanded three specific issues for further consideration and clarification, including the impact of the FCC’s Order on public safety. Those issues are not material to net neutrality principles.

States allowed to regulate. While the FCC Chairman celebrated the victory, arguably the most significant part of the decision is that it found the FCC’s attempts to broadly preempt states and localities from making new laws to regulate the internet illegal. The court said, “We vacate the portion of the 2018 Order that expressly preempts “any state or local requirements that are inconsistent with [its] deregulatory approach.” (“Preemption Directive”). The Commission ignored binding precedent by failing to ground its sweeping Preemption Directive—which goes far beyond conflict preemption—in a lawful source of statutory authority. That failure is fatal.”

The state laws that have already passed or will be passed in the future could still face legal challenges to the extent they seek to directly invalidate or undermine the FCC Order. However, the DC Circuit opinion enables states to move forward with their own internet regulations.

Why we should care. Net neutrality as we knew it is dead. However, many states have passed or will pass legislation to restore some of the consumer protections that previously existed under net neutrality. This decision allows that. There will almost certainly be legal battles ahead has the FCC tries to prevent the states from effectively nullifying its 2017 rule changes.

When the net neutrality repeal happened there were concerns that the potential new “fast lane, slow lane” environment could disproportionately impact smaller publishers and marketers and favor deep-pocketed marketing platforms such as Google and Facebook that could afford to pay telcos for faster delivery of their content and services.

There were also fears that telcos might create new services and favor those over existing competitors in the market. So far those fears haven’t fully materialized but now that the FCC Order has been substantially upheld, the telcos may make more aggressive steps to increase revenues.


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Court Rules That ?Patent Troll? Is Opinion, Not Defamation

• Court, Rules
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Free speech in the patent world saw a big win on Friday, when the New Hampshire Supreme Court held that calling someone a “patent troll” doesn’t constitute defamation. The court’s opinion [PDF] is good news for critics of abusive patent litigation, and anyone who values robust public debate around patent policy. The opinion represents a loss for Automated Transactions, LLC (ATL), a patent assertion entity that sued [PDF] more than a dozen people and trade groups claiming it was defamed.

EFF worked together with the ACLU of New Hampshire to file an amicus brief [PDF] in this case, explaining that the lower court judge got this case right when he ruled against ATL. That decision gave wide latitude for public debate about important policy issues—even when the debate veers into harsh language. We’re glad the New Hampshire Supreme Court agreed.

Last week’s ruling court notes that “patent troll” is a phrase used to describe “a class of patent owners who do not provide end products or services themselves, but who do demand royalties as a price for authorizing the work of others.” However, the justices note that “patent troll” has no clear settled definition. For instance, some observers of the patent world would exclude particular entities, like individual inventors or universities, from the moniker “patent troll.”

Because of this, when ATL’s many critics call it a “patent troll,” they are expressing their subjective opinions. Differences of opinion about many things—including patent lawsuits—cannot and should not be settled with a defamation lawsuit.

“We conclude that the challenged statement, that ATL is a well-known patent troll, is one of opinion rather than fact,” write the New Hampshire justices. “As the slideshow demonstrates, the statement is an assertion that, among other things, ATL is a patent troll because its patent-enforcement activity is ‘aggressive.’ This statement cannot be proven true or false because whether given behavior is ‘aggressive’ cannot be objectively verified.”

The court ruling also upheld tough talk about ATL’s behavior beyond the phrase “patent troll.” For instance, the court looked at statements referring to ATL’s actions as “extortive,” and rejected defamation claims on that basis, finding that was rhetorical hyperbole. Another ATL critic had complained that ATL’s efforts “cost them only postage and the paper their demand letters are written on.” This, too, was hyperbole, part of the give-and-take of a public debate.

This case has its origins in the patents of inventor David Barcelou, who claims he came up with the idea of connecting ATMs to the Internet. As Barcelou describes in his defamation lawsuit, he saw “his business efforts fail,” before he went on to transfer patent rights to ATL and create a patent assertion business.

ATL began suing banks and credit unions that were allegedly using Barcelou’s patents in their ATMs. In all, about 200 different companies paid ATL a total of $3 million in licensing fees to avoid litigation—that’s an average of $15,000 per company.

But when they were finally examined by judges, ATL’s patents failed to hold up. The Federal Circuit invalidated several patent claims owned by ATL, and further found that the defendants’ ATMs did not infringe the Barcelou patents.

After that court loss, ATL had a steep drop in licensing revenue. That’s when ATL launched its defamation lawsuit, blaming its critics for its setbacks.

For software developers and small business owners who bear the brunt of patent troll demands and lawsuits, the New Hampshire decision sends a clear message. If you’re upset about the abuses inherent in our current patent system, it’s okay to speak out by using the term “patent troll.” Calling out bad actors in the system is part and parcel of the debate around our patent and innovation policies.