May 20, 2011
Another Ruling that the Americans with Disabilities Act Doesn't Apply to Websites--Ouellette v. Viacom
By Eric Goldman
Ouellette v. Viacom: The magistrate report: 2011 WL 1882780 (D. Mont. March 31, 2011). The judge's approval of the magistrate's report: 2011 WL 1883190 (D. Mont. May 17, 2011). The original complaint (he filed an amended complaint that served as the basis of these rulings).
[Note: this lawsuit is gossip-worthy because the plaintiff named YouTube and Viacom as co-defendants, leading to the possibility that they might work together on a joint defense despite their bitter feud in Viacom v. YouTube.]
Just yesterday, I blogged about Young v. Facebook, in which Judge Fogel held that Facebook wasn't covered by the Americans with Disabilities Act because it wasn't a physical place. In this unrelated ruling (there were no cross-citations between the opinion), YouTube and MySpace get a virtually identical ruling. Perhaps we will see enough precedent develop that websites aren't covered by the ADA to suppress further plaintiffs forays. Today's rulings also have some interesting discussion about the application of 17 USC 512's safe harbors to a user whose content is removed.
Plaintiff filed this lawsuit pro se and in pro per. Trying to summarize, it appears his main allegations are that YouTube and MySpace wrongfully removed his videos in response to allegedly bogus takedown notices from Viacom and other content owners. Because of his pro per status, the court does an initial screen to determine if the claims are frivolous. In February, the court determined that Claim I, the "DMCA" claim, wasn't frivolous--presumably, a 512(f) claim against the content owners for a bogus copyright takedown notice.
The two rulings prompting this post--the magistrate report and judge's approval--dismiss the other claims as frivolous, including the rejection of:
* a claim that the defendants violated his fair use rights. The court says that fair use is a defense, not a cause of action.
* a 512(f) claim against the defendants other than the content owners. Even though 512(f) could apply generally, the plaintiff never alleged any actual misrepresentations made by the specified defendants.
* claims that YouTube's contract had an improper venue clause (even if true, Google let the case proceed in Missoula, so the clause wasn't used) and that the contract let third parties harass him, to which the magistrate says "Under the facts alleged by Ouellette, however, Google and YouTube cannot be liable for the conduct of any third party."
After breezing through those claims, the magistrate takes a little more time with the ADA claim. The plaintiff is dyslexic. The magistrate summarizes his contention: "he alleges those Defendants discriminated against him based on his reading disability, and deprived him of access to their internet services and their “online theater”—a “place of public accommodation” governed by the ADA." Citing the AccessNow v. Southwest Airlines case, the magistrate says "an internet website, by itself, is not an actual place, or a physical, concrete structure that would qualify as a place of public accommodation under the ADA." Similar to the discussion in yesterday's Young v. Facebook ruling, the magistrate responded:
His allegations fail to identify any actual, physical place where Defendants' services are made available, and fail to assert any connection between the internet websites he sought to access, and any actual, physical structure or facility through which Defendants' services could be accessed or provided. To the contrary, Ouellette alleges only that Defendants' conduct has impeded his access to certain internet websites
In approving the magistrate report, the judge rejects the plaintiff's objection that a website's servers are the requisite physical place:
Neither a website nor its servers are “actual, physical places where goods or services are open to the public,” putting them within the ambit of the ADA. Weyer v. Twentieth Cent. Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000). The public access production facility might amount to such a place, but there is no nexus between the websites and Ouellette's inability to access that physical place.
The magistrate also rejects the plaintiff's attempts to turn 17 USC 512 into an affirmative cause of action. As I read it, the plaintiff argued that the defendants' failure to follow the notice-and-takedown and counter-notice/putback provisions of 512 creates an affirmative cause of action for a user who posted the affected content. This claim is putatively separate from the 512(f) claim, which I believe is the only affirmative cause of action in 512; in my opinion, the remainder of 512 is all a safe harbor. The magistrate (approved by the judge without substantive comment) rejects the plaintiff's argument:
Ouellette's reliance on the takedown and counter notice safe-harbor procedures in the DMCA is misplaced. The Defendants' alleged compliance, or non-compliance with the procedures does not provide a basis for liability. Defendants' liability to Ouellette, if any, could only be imposed under existing principles of law independent of the DMCA's procedural requirements. Ouellette's allegations, however, do not invoke any independent theory of liability. Therefore, his claims founded upon the DMCA should be dismissed.
I'd be more excited about these rulings if it didn't involve a pro per plaintiff, because then they might be more persuasive to other judges. Nevertheless, these rulings are a useful warning to future plaintiffs that it's frivolous to argue that websites are governed by the ADA and that failure to follow the notice-takedown-counternotice-putback procedures in 512 creates a cause of action.
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