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There Should be Compensation and Remediation for the Real Damages Inaccessibility Causes

February 19, 2016 • Darrell Shandrow Hilliker

I just thought I would respond to Chris Hofstader’s excellent article Stop The ADA Trolls.

While I certainly agree we shouldn’t be supporting these accessibility lawsuit trolls, I also do not feel we should be defending companies that have less-than-stellar
accessibility records. If a company has consistently failed to acknowledge accessibility advocacy and act positively to address accessibility concerns,
why shouldn’t we just leave them to be eaten by the wolves?

You see… I believe there are real damages caused by inaccessibility, and I feel we should, actually, consider a more aggressive approach toward companies
that consistently ignore us.

Blind people lose their jobs due to inaccessible software. Blind children miss out on educational opportunities due to inaccessible educational technology used in the classroom. Inaccessible apps in the new sharing economy result in a complete denial of service, which clearly counts as discrimination under the Americans with Disabilities Act here in the United States and other similar laws around the world. There are so many other inexcusable ways blind people are excluded because of inaccessibility. How can we put a stop to this discrimination?

Here’s how I see all this working:

  1. Blind people have been consistently advocating with a company for full inclusion / equal accessibility, but the advocacy has been completely or substantively ignored.
  2. A case is opened and documented with an accessibility advocacy clearinghouse that tracks and reports accessibility advocacy efforts and their results, or lack of effective action.
  3. A letter is sent to the company’s CEO outlining the concerns and clearly asking for equal accessibility.
  4. One or more blind persons file a lawsuit against the offending company asking for equal accessibility and for serious monetary damages, including not only the inaccessibility itself, but also for the emotional distress / pain and suffering it has caused.
  5. The lawfirm filing the suit subpoenas evidence, including the documentation from the case filed in step 2 and the letter sent in step 3.
  6. The process continues, on and on, with company after company, in a systematic and transparent manner, until we, possibly, achieve real results!

That’s right! I think the lawsuits should most certainly be filed, because companies are wrong to continue excluding us, but I think it should all be done
in a clear, above-board manner.

Categories: accessibility, ADA, advocacy, discrimination, lawsuit, opinion, web accessibility
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Lawsuit Leads to Reconsideration of Patent

October 9, 2009 • Darrell Shandrow Hilliker

The U.S. Patent and Trademark Office has re-examined a patent held by the maker of a screen reader for blind computer users in connection with an infringement lawsuit filed against a competing company. Reliable sources hailed the move as a significant victory for the defendant.

The Document Placemarker patent, held by Freedom Scientific, Inc., covers a specialized screen reading capability that allows a blind person to save their position on a Web page and return to the same place at a later time. The company’s Job Access With Speech (JAWS) screen reading software incorporates this feature.

In a July 15, 2008 complaint filed in the United States District Court, Middle District of Florida, Tampa Division, the self-proclaimed “world’s leading manufacturer of assistive technology products for those who are vision impaired” accused GW Micro, the maker of the competing Window-Eyes screen reader, of deliberate patent infringement, claiming their placemarker technology is the same as that described in the patent. According to court documents, Freedom Scientific is seeking an injunction requiring GW Micro to stop including the placemarker feature in their product, asks for significant unspecified financial compensation for the infringement and requests recovery of legal fees.

“I believe that this technology shouldn’t have been patented to begin with,” said Doug Geoffray, Vice President of Development with GW Micro, Inc. “It obviously was around way before what they’ve done. We have stated that our version, Window-Eyes 3.1 back in 1999, had previous position capability.”

The U.S. Patent and Trademark Office agreed. In a re-examination of Freedom Scientific’s patent, at the request of GW Micro’s attorneys, the office rejected all claims to the invention.

“A person shall be entitled to a patent unless the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States,” stated a published document describing the re-examination as the basis for the patent’s rejection on the grounds that the technology had already been invented.

The document also cited two existing patents and the availability of IBM’s Home Page Reader, a product employing place marker technology prior to the Freedom Scientific patent, in its reasoning behind the decision.

“We take that as a positive sign,” Geoffray said.

“It’s a victory,” said Dennis Karjala, Jack E. Brown Professor of Law, Faculty Fellow, Center for the Study of Law, Science, & Technology at Arizona State University’s Sandra Day O’Connor College of Law. “There’s no question that, if the re-examination decision is upheld, that’s the end of it. There is no patent.”

He said Freedom Scientific may still have some cards to play in this case.

“The patent owner in a re-examination proceeding may appeal,” Karjala said. “It goes to an appeals board within the Patent Office and then they can later seek judicial review. This thing could go on for awhile.”

According to the re-examination document, the Patent Office must receive a response from Freedom Scientific by Oct. 28 if it wishes to appeal the decision.

Karjala said the legal trend points to a probable GW Micro victory.

“Because the Supreme Court has been reviewing so many of their cases with an obvious eye to overturning them, the Patent Office is pretty sensitive now that they’re being accused of being too patent friendly,” said Karjala. “My guess is once you got a ruling by the examiner that the patent is invalid, I’d say the chances are pretty good it will be upheld by the board in the Patent Office. If it’s upheld by the board, the chances that a court would overturn it in this atmosphere are pretty slim.”

Freedom Scientific representatives declined to comment, citing the ongoing litigation.

Notes:

  • The examiner cited Patent 6085161 describing the invention of a system for assigning and playing specific sounds when a Web page changes or the user encounters a specific Web page element such as a header or list. All of the claims in Freedom Scientific’s patent were rejected based on the positioning techniques described in this “sonification” system.

  • The examiner also cited Patent 7058887 describing a means of determining the position on a Web page according to user-defined settings, including the page’s domain. This IBM patent was referenced in the re-examination as clarification for the rejection of the sixth claim.

  • The examiner also referred to the IBM Home Page Reader Version 2.5 Manual.

  • Ex Parte Re-examination, Control Number 90/010,473, Central Re-examination Unit, U.S. Patent and Trademark Office. Visit the Patent Application Information Retrieval Web site and enter the specified control number to obtain this document. The Patent Office provides this document only in scanned image PDF, which is inaccessible to blind readers. An accessible copy of this document has been made available using Kurzweil K1000 Version 11.03 optical character recognition software.

  • An accessible copy of Freedom Scientific’s complaint was made available in the July 24, 2008 article about the lawsuit.

Categories: assistive technology, lawsuit
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Good Thursday TV Coverage of the Kindle Lawsuit

July 3, 2009 • Darrell Shandrow Hilliker

At around 4:00 Thursday afternoon, I was contacted by Melissa Blasius with Channel 12 News in Phoenix and asked if I could be available at 5:30 to be interviewed for a story that would run on the 10:00 newscast. I discovered I could prepare myself and make the necessary transportation arrangements for this sort of work within one hour after receiving the request.

You may now watch the video of the story on the 10:00 evening news. An article was also written based on this story, though its text is significantly different from the dialogue on the newscast. A copy of the article’s text is provided for easy accessibility.

My thanks go to Chris Skarstad (Toonhead) and CathyAnne Murtha of the Access Technology Institute for their vital assistance making it possible to bring to all of you a direct link to the video despite accessibility issues with the 12 News web site.

Lawsuit says ASU discriminates by using e-books

by Melissa Blasius – Jul. 2, 2009 11:13 PM

12 News

A journalism student has filed a discrimination lawsuit against Arizona State University.

Darrell Shandrow, a junior, wants the university to delay a pilot program for electronic textbooks and readers called Kindles. He says the devices, made by Amazon, are impossible to use by visually-impaired people.

Sandrow, who is blind, says Kindles have a text-to-audio function that can read the books out loud, but he claims on-screen menus have no audio functions. That means he could never navigate to page one. Blind students would have to continue ordering specialty texts in braille or audio formats, and those books can take months to arrive.

Shandrow said, “Asking us to continue on as we’re going is like saying to sighted students you are climbing on to jet age with your e-books, but blind students still need to use the horse and buggy.”

The National Federation of the Blind and the American Council of the Blind are also plaintiffs in the lawsuit, which claims ASU’s use of Kindles would put blind students on unequal footing.

An ASU spokesman sent a response to 12 News. It said Kindles would be used “for a single course where students may also access traditional textbooks.”

In the statement, Spokesman Virgil Renzulli also said all campuses have Disability Resource Centers “providing the necessary tools so that all students with disabilities have an equal opportunity to be successful in their academic pursuits.”

Categories: accessibility, Kindle, lawsuit, news, TV
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Positive TV News Coverage of the Kindle Lawsuit Against ASU

July 1, 2009 • Darrell Shandrow Hilliker

Shortly after 9:00 Tuesday morning, I was contacted by Tim Vetscher with Channel 15, a local ABC affiliate in Phoenix, and asked to participate in a story on the Kindle lawsuit. He picked me up at 10:15 and we went to a nearby bar-restaurant establishment called Four Peaks Brewry, where he and Toby Phillips, a senior broadcast journalism major at the Cronkite School, talked with me for almost 45 minutes. The interview included a demonstration of Braille reading and accessible technology, part of which made it into the TV story.

After viewing the story, Chris Danielsen, director of public relations for the National Federation of the Blind, said: “Nice job on this. I see that they didn’t get the nuance that books can be read aloud by the Kindle DX; it’s the navigation that’s not accessible. Still, I think we got our point across.”

The story ran on the 6:00 evening newscast. I am happy to report that you can now watch the video or read the transcript below.

Reported by: Tim Vetscher

Email: tvetscher@abc15.com

Darrell Shandrow, a junior at ASU, is suing the university over its use of the Amazon Kindle for textbooks. (Tim Vetscher)

TEMPE, AZ — A student at Arizona State University is suing the school over a new electronic textbook reader.

Junior Darrell Shandrow calls ASU’s new pilot program to use the Amazon Kindle e-book reader in some classes this fall discrimination.

“I believe it’s important for blind and visually impaired people to have the same opportunity to participate the sighted already enjoy,” said Shandrow.

Even though he can’t see, Shandrow doesn’t shy away from technology.

Thanks to a screen reading program, Shandrow uses a labtop computer that talks to him and tells him what’s on the screen.

That kind of accessibility, Shandrow says, helps him to attend ASU, where he’s a junior in the Walter Cronkite School of Journalism and Mass Communication.

When ASU announced plans to begin using the Amazon Kindle as a textbook reader, Shandrow immediately had concerns.

“It’s saying we’re giving sighted students a new avenue for reading but we’re not granting the same facility to blind and visually impaired students,”
said Shandrow.

Shandrow claims the Kindle lacks text-to-speech technology and therefore makes it accessible only to sighted students.

So Shandrow filed a lawsuit against ASU hoping to stop the use of the Kindle.

“We want the pilot program, we just want it to be accessible,” said Shandrow.

An ASU spokesperson released the following statement to ABC15: “Arizona State University is committed to equal access for all students. Disability Resource Centers are located on all ASU campuses. The Centers enable students to establish eligibility and obtain services and accommodations for qualified students with disabilities. These efforts are focused on providing the necessary tools so that all students with disabilities have an equal opportunity to be successful in their academic pursuits.”

“I feel the need for equal accessibility, that is to have an accessible Kindle reading device and accessible books, is a civil right,” said Shandrow.

Amazon claims to be working on adding navigation accessible to the blind for the Kindle.

Shandrow says until that happens, the Kindle e-book reader should be shelved.

In the interest of full disclosure, reporter Tim Vetscher is an adjunct professor at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

Categories: accessibility, Kindle, lawsuit, news, TV
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Complaint and Motion for Preliminary Injunction Against ASU and the Arizona Board of Regents

June 25, 2009 • Darrell Shandrow Hilliker

In keeping with our tradition of accessibility and openness, we are glad to provide full plain-text copies of the complaint and the motion for a preliminary injunction against ASU and the Arizona Board of Regents to prevent use of the inaccessible Kindle in an upcoming fall semester university pilot program.

Complaint

Accessible copy of the complaint (The NATIONAL FEDERATION OF THE BLIND, The AMERICAN COUNCIL OF THE BLIND, and DARRELL SHANDROW vs. The ARIZONA BOARD OF REGENTS and ARIZONA STATE UNIVERSITY) for discrimination against blind and visually impaired students under the ADA and the Rehabilitation Act.

Motion for Preliminary Injunction

Accessible copy of the motion for a preliminary injunction asking the court to immediately stop ASU from implementing the pilot program at the beginning of the fall semester on August 24 while the complaint goes forward.

Categories: accessibility, Kindle, lawsuit
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Darrell Shandrow Joins ACB and NFB to File Discrimination Suit Against ASU Over Inaccessible Amazon Kindle DX Pilot Program

June 25, 2009 • Darrell Shandrow Hilliker

FOR IMMEDIATE RELEASE

CONTACT:

  • Chris Danielsen

  • Director of Public Relations

  • National Federation of the Blind

  • (410) 659-9314, extension 2330

  • (410) 262-1281 (Cell)

  • cdanielsen@nfb.org

National Federation of the Blind and American Council of the Blind File Discrimination Suit Against Arizona State University

University’s Amazon Kindle DX Pilot Program Discriminates Against the Blind

Tempe, Arizona (June 25, 2009): The National Federation of the Blind (NFB) and the American Council of the Blind (ACB) filed suit today against Arizona State University (ASU) to prevent the university from deploying Amazon’s Kindle DX electronic reading device as a means of distributing electronic textbooks to its students because the device cannot be used by blind students. Darrell Shandrow, a blind ASU student, is also a named plaintiff in the action. The Kindle DX features text-to-speech technology that can read textbooks aloud to blind students. The menus of the device are not accessible to the blind, however, making it impossible for a blind user to purchase books from Amazon’s Kindle store, select a book to read, activate the text-to-speech feature, and use the advanced reading functions available on the Kindle DX. In addition to ASU, five other institutions of higher education are deploying the Kindle DX as part of a pilot project to assess the role of electronic textbooks and reading devices in the classroom. The NFB and ACB have also filed complaints with the Office for Civil Rights of the U.S. Department of Education and the Civil Rights Division of the U.S. Department of Justice, asking for investigations of these five institutions, which are: Case Western Reserve University, the Darden School of Business at the University of Virginia, Pace University, Princeton University, and Reed College. The lawsuit and complaints allege violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.

Dr. Marc Maurer, President of the National Federation of the Blind, said: “Given the highly-advanced technology involved, there is no good reason that Amazon’s Kindle DX device should be inaccessible to blind students. Amazon could have used the same text-to-speech technology that reads e-books on the device aloud to make its menus accessible to the blind, but it chose not to do so. Worse yet, six American higher education institutions that are subject to federal laws requiring that they not discriminate against students with disabilities plan to deploy this device, even though they know that it cannot be used by blind students. The National Federation of the Blind will not tolerate this unconscionable discrimination against and callous indifference to the right of blind students to receive an equal education. We hope that this situation can be rectified in a manner that allows this exciting new reading technology to be made available to blind and sighted students alike.”

Darrell Shandrow, a blind student pursuing a degree in journalism at ASU, said: “Not having access to the advanced reading features of the Kindle DX—including the ability to download books and course materials, add my own bookmarks and notes, and look up supplemental information instantly on the Internet when I encounter it in my reading—will lock me out of this new technology and put me and other blind students at a competitive disadvantage relative to our sighted peers. While my peers will have instant access to their course materials in electronic form, I will still have to wait weeks or months for accessible texts to be prepared for me, and these texts will not provide the access and features available to other students. That is why I am standing up for myself and with other blind Americans to end this blatant discrimination.”

Categories: accessibility, Kindle, lawsuit, press release
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GW Micro Response to Freedom Scientific Lawsuit

August 14, 2008 • Darrell Shandrow Hilliker

Fort Wayne, Indiana, August 15, 2008 — GW Micro, Inc., a Fort Wayne, Indiana-based company dedicated to providing high quality adaptive technology solutions for blind and visually impaired individuals, announced today that it has received notice of a patent infringement lawsuit brought by Freedom Scientific, Inc., the self-described “world leader in technology-based solutions for people with visual impairments.” The lawsuit was filed in the United States District Court, Middle District of Florida, alleging infringement of U.S. Patent No. 6,993,707 for a “Document Placemarker.” GW Micro has reviewed the claim and believes it is overreaching and not consistent with what Freedom Scientific told the Patent Office when obtaining its patent. GW Micro intends to defend itself vigorously and expects to prevail in court. “As many of our users know, our screen reader — Window-Eyes — has had the capability of returning to a specific line within a webpage since version 3.1, which was released over nine years ago, well before Freedom Scientific’s alleged invention,” said Dan Weirich, GW Micro’s Corporate President. Weirich went on to note that, “The implication in a recent Freedom Scientific press release that GW Micro is ‘benefiting from [Freedom Scientific’s] investment at no charge’ is simply not accurate nor in line with GW Micro’s tradition of success and fair play.” Finally, Weirich concluded, “We will aggressively defend both our legal position and our place in the assistive technology community.”

Daniel R. Weirich

GW Micro, Inc.

725 Airport North Office Park

Fort Wayne, IN 46825

ph 260-489-3671

www.gwmicro.com

Categories: lawsuit, press release
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Is Revisionist History at Work in the Blind Community’s Own Online Media Outlets?

July 13, 2007 • Darrell Shandrow Hilliker

Is revisionist history at work in the blind community’s own electronic media outlets? Can important information and the opinions of certain people in the community simply be made to disappear from our public knowledge without comment? It appears, unfortunately, that there may be two clear cases of exactly this sort of thing happening in a prominent online technology news magazine produced by the American Foundation for the Blind.

In the March 2007 issue of AccessWorld, an article entitled A View from Inside: A Major Assistive Technology Player Shares Some Industry Secrets, featuring Chris Hofstader, has been pulled from the magazine without explanation.

In the AccessWorld News section in the July 2007 issue of the same magazine, the following brief story is carried concerning the Freedom Scientific Versus Serotek lawsuit:

On May 14, 2007, Freedom Scientific filed suit against Serotek Corporation, claiming trademark infringement for use of the term “FreedomBox.” The claim stated that “Continuously since May 15, 2000, the Plaintiff has used the mark ‘Freedom Scientific’ to identify its products tailored to blind and low-vision users, including software that translates the Internet and digital information into braille or audible synthesized speech, and to distinguish these products from those made or sold by others, by, among other things, prominently displaying the mark ‘Freedom Scientific’ on the products, their containers, the displays, and marketing associated therewith.”

On June 7, Freedom Scientific and Serotek jointly announced that they had reached an agreement that Serotek was inadvertently infringing on Freedom Scientific’s federally registered trademark. “It is unfortunate that we had to take this action,” said Lee Hamilton, president and CEO of Freedom Scientific, “but trademarks are valuable corporate assets, and they must be protected, or they are lost. This agreement accomplishes that, and we have agreed to dismiss the lawsuit.” Serotek will rename FreedomBox and other affected products. For more information, visit the companies’ web sites: and .

There is absolutely no coverage given to the Save Serotek Petition or any other efforts made by members of the blind community requesting that Freedom Scientific cease this action.

We all may want to start asking some serious questions about the blindness organizations to which we are members or on which we rely to provide the services we need. Does the organization’s leadership really hold the needs and desires of the blind in their hearts and minds, do they have their own personal agendas or are they catering to special interests? Do agencies, companies and other organizations donate money to these non-profit organizations, then use that fact later to exert undue influence over their actions and policies? After all, how could these organizations bite the hands that feed their small budgets? Can the people in charge of the most prominent organizations of and for the blind be trusted? It is up to all of us to ask and insist on candid answers to these and many other hard questions.

Categories: advocacy, American Foundation for the Blind, journalism, lawsuit, opinion, Serotek, thought provoker
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