How not to attain 100% captioning (DVD version)

(NOW WITH UPDATE)    It was announced on 2006.05.31 that a settlement to a lawsuit had been reached concerning the lack of captioning of bonus or special features on DVDs. The lawsuit, filed by Russ E. Boltz on behalf of other plaintiffs, named Buena Vista Home Entertainment and Disney; Warner Bros.; Universal; MGM; and Sony and Tri-Star as defendants.

The allegation held that these companies “misled consumers by displaying a captioning symbol or stating ‘captioning,’ ‘captioned,’ ‘subtitled’ or ‘subtitling’ ” on their DVDs when the feature movie was captioned but “some or all” of the bonus materials weren’t. I have seen a whopping two DVDs with captioned bonus materials, so I can attest that this was the normal state of affairs. The respondents denied wrongdoing, even though it is plainly an open-and-shut case that DVD packaging used to claim captioning even if not everything on the disc was captioned. If you look closely now, you will find that Hollywood releases typically state “Bonus Materials Not Rated Or Closed Captioned” (capitalization sic).

The settlement sounds like a win for deaf and hard-of-hearing viewers, since it requires the respondent studios to caption their bonus material. But in fact, the settlement represents another round of chicanery on the part of lavishly rich entertainment conglomerates to ensure that 100% captioning shall never be reached.

The settlement notice is available as a PDF. In the discussion below, remember that captioning always refers to captioning of bonus materials. It is implied, but not stated, that the main feature will always be captioned. Unless otherwise specified, captioning can be carried out by DVD subpictures (the kind you turn on with the Subtitle key of your remote) or Line 21 captions or both.

What the settlement says

General requirements

Many of the following are not explicitly stated, but they follow from the limited list of published exclusions. I expect that not all parties will have thought through the settlement enough to have realized its full requirements.

1. Caption bonus materials on all new releases and many catalogue (or old-movie) releases.
2. Caption director’s commentary (partially excluded solely in the case of Universal, hence it isn’t excluded for any other studio).
3. Use subpictures (captioning) or Line 21 captions (closed captioning) or both. It is implied that open captioning is permissible, but the settlement confuses the issue of captioning vs. closed captioning.
   • Under ordinary circumstances, captions in subpictures are closed (you have to opt into them). Though the DVD author can force them to display, they pretty much never do so.
   • Line 21 captions always are closed.
4. Caption bonus materials even if they are also subtitled or dubbed (viz. captions in English of sound effects and speaker IDs on English-subtitled bonus features).

General deficiencies

1. Notable studios are omitted from the settlement, including Twentieth Century Fox, New Line, Lion’s Gate, and Paramount – and all the indies, including Miramax, Weinstein, IFC, and many others.
2. The settlement applies only to the U.S., though in practice it will have effect in Canada to some degree (save to the extent that distributors like Alliance Atlantis can’t get their acts together to pass on already-captioned U.S. material).
3. A number of nonprofits benefit financially from the deal. The monies involved are embarrassingly low and arguably too small to fulfill the stated purposes of the payments, which are themselves vague.
   • The Hearing Loss Assn. of America (HLAA, better known as SHHH) stands to be paid $20,000 “for use by that organization in a manner which is reasonably designed to help low-income users of home video products.” HLAA also will receive $2,500 per uncaptioned DVD title if certain studios don’t live up to the terms of the deal.
   • National Association of the Deaf, Telecommunications for the Deaf, Inc., and HLAA receive will $85,000 each from Sony “to be used to promote captioning of visual arts.” Captioning has been around for 30 years and needs no discernible promotion at this point.
4. Only standard-definition DVDs qualify. High-definition DVDs never have to be captioned at all under the settlement. Online distribution of movies and bonus materials is not mentioned.
5. “Advertising elements, such as trailers,” do not have to be captioned.
6. No DVD with an initial production run under 100,000 ever has to be captioned.
7. The settlement lasts only five years. Studios need not keep on captioning after the five-year term expires. It apparently came into effect on 1 January 2006 even though the settlement has not been legally ratified yet. But studios don’t have to begin captioning until 10 months after legal ratification. (The settlement document does indeed contradict itself in this regard.)
8. A range of exclusions are permitted for all studios:
   1. “Significant technical difficulties.”
   2. Lack of rights to caption song lyrics, something I’ve never known to happen.
   3. “Factors that would make [captioning] unreasonably expensive.”
   4. “Significantly-delayed finalization or late receipt of bonus material.”
9. Only the English language must be captioned.

And, of course, since these are deaf people we’re talking about, the only thing that concerns them is captioning, i.e., their own specific needs. Accessibility is not part of the lawsuit (and, if it were, the suit would have had to be filed under different legal grounds). As a result, audio description for the blind and accessible menu systems are not part of the settlement.

What Buena Vista and Disney don’t have to do

1. Caption any “catalogue” DVD that is being released for the first time in any home-video format.
2. Caption any catalogue re-release DVD with an initial projected shipment of under 500,000 copies. (Under other terms of the settlement, the minimum number of catalogue re-release DVDs to be captioned is nonetheless two per year.)
3. Caption any “preschool title,” meaning “programming whose target audience is children ages five and under.” That means a deaf parent cannot monitor and understand the material his or her child watches.
4. Caption any bonus material if a company other than Buena Vista or any Disney affiliate provides it. Yes, that’s what it really says: “Any titles distributed by BVHE where the bonus material is produced or supplied by any entity other than BVHE or any other affiliate of the Walt Disney Company.” Whether this applies to bonus material in whole or in part is unclear.
5. Caption TV shows released on DVD. Only “new theatrical releases” and animated movies released direct to DVD qualify.

What Warner Bros. doesn’t have to do

1. Caption bonus materials on more than four “high-performance television DVD titles,” a term that is not defined in the settlement’s glossary. Other TV shows released on DVD can go uncaptioned.
2. Caption any catalogue re-release DVD with an initial projected shipment of under 500,000 copies. (Under other terms of the settlement, the minimum number of catalogue re-release DVDs to be captioned is nonetheless two per year.)
3. Caption “[a]ny titles distributed by [Warner] pursuant to any agreement with any other entity over which [Warner] does not have control.” If they’re just the distributor, they don’t have to caption.

What Universal doesn’t have to do

1. Anything. It merely has to “make reasonable, good-faith efforts” to caption.
2. Use Line 21 closed captioning. (Universal DVDs notoriously do not carry Line 21 captions, or if they do, they are universally mastered incorrectly and do not display Line 21 captions.)
3. Caption TV shows on DVD.
4. Caption more than 90% of its titles. Yet if the number dips below 90%, it has to pay $2,500 per uncaptioned title to the Hearing Loss Assn. of America “or other hearing-loss charity.” (“This $2,500 contribution is not an alternative to making reasonable, good-faith efforts to caption.”)
5. Caption anything on any disc “where the bonus material is produced or supplied by any entity other than Universal or any other affiliate of Universal.” It is unclear if this applies in whole or in part.
6. Caption any bonus material “consisting of trailers and audio commentary.” However, if any track of audio commentary contains an actor’s voice, at least one such track must be captioned.

What MGM doesn’t have to do

1. Caption TV shows on DVD.
2. Caption more than 90% of its titles. If the number dips below 90%, it has to pay $2,500 per uncaptioned title to the Hearing Loss Assn. of America “or other hearing-loss charity.” (“This $2,500 contribution is not an alternative to making reasonable, good-faith efforts to caption.”)
3. Caption bonus material where “MGM does not have the right to require that the producer or licensor caption or closed-caption the bonus material,” “the bonus material is produced or supplied” by an outside source, or “MGM does not control the creation and/or delivery of bonus material.” (Does that mean if somebody other than MGM calls the FedEx truck to ship a tape master to MGM, they don’t have to caption it?) “In all cases… MGM shall request, where reasonable, that the producer, licensor, or other entity provide captioning or closed captioning of bonus materials.”

What Sony doesn’t have to do

1. Anything. It merely has to “make reasonable, good-faith efforts” to caption.
2. Caption TV shows on DVD.
3. Caption any “catalogue” DVD that is being released for the first time in any home-video format.
4. Caption more than 70% of its titles (seventy, not ninety). If the number dips below 70%, it has to pay $2,500 per uncaptioned title to the Hearing Loss Assn. of America “or other hearing-loss charity.” (“This $2,500 contribution is not an alternative to making reasonable, good-faith efforts to caption.”) Those fines max out at $150,000 (60 titles).
5. Caption any catalogue re-release DVD with an initial projected shipment of under 500,000 copies. (Under other terms of the settlement, the minimum number of catalogue re-release DVDs to be captioned is nonetheless two per year.)
6. Caption any music videos not already “delivered” with captioning.
7. Caption bonus material where the bonus material “is produced or supplied by any entity other than Sony” or an affiliate, where the DVD is something Sony merely distributes, or “where Sony does not control the creation and/or delivery of bonus material.”

What other studios don’t have to do

Anything.

What the named studios’ subsidiaries in other countries don’t have to do

Anything.

How many titles might this settlement apply to?

The settlement looks back on releases from October 2001 “to the present” and calculates that it would have applied to over 80% of Buena Vista DVDs and over 79% of Warner Bros. DVDs. For those two studios, we can predict that the settlement will leave about 20% of titles uncaptioned.

Lawyers get rich

Attorneys for the plaintiff will be paid $1.3 million by the defendants. The attorneys of record are the Mills Law Firm and Bramson, Plutzik, Mahler & Birkhaeuser. Deaf groups stand to be paid $275,000 and up ($85,000 × 3 + $20,000) or 21% of what the lawyers will make. That is roughly the same proportion of DVDs that will remain uncaptioned in the Buena Vista and Warner rosters as a result of this settlement; the payments can thus be viewed as a nice tidy payoff for uncaptioned discs.

The settlement is a bad deal

The settlement should be opposed by members of the class en masse. It does not provide its intended remedy – full captioning of bonus materials. It provides too many loopholes for the respondent studios and leaves out other studios entirely. Entire categories of programming are exempted. Payments to deaf and hard-of-hearing groups seem vague in purpose and are too small to be meaningful in any event.

Requests for comment

I E-mailed the Hearing Loss Assn. of America, NAD, and TDI for comments about what they planned to do with the money they stand to receive from this settlement. A day later, there was no response. Should one arrive, I will add it here.

Update

(2006.07.18)    Russ Boltz, the original plaintiff, recently wrote:

I’ve read, with great interest – for obvious reasons – your post regarding the settlement in my case. I have hopes that, in the interests of fairness, you will post my response to some of it.

Most of all, I’m glad that you share my concern about closed captioning and its equivalents. I’ve needed captioning for a long time, and got one of the first closed caption decoders produced by the National Captioning Institute back in the early 1980s. As an attorney, I encouraged court reporters – the people who create transcripts for court proceedings – to use real-time reporting programs, which are the raw generators of captions in live television, so that I could follow the spoken words of judges, witnesses and others in my cases. (Yes, I’m a lawyer; more about that later.) And I delighted in captions on videotapes, and repeatedly returned them when uncaptioned to rental stores such as Blockbuster and demanded my money back, since they weren’t useful. From your blog, it sounds as it you have had similar concerns for a similar period, and you speak out about them rather than hold back, as too often occurs in the HOH and Deaf communities. Thank you.

But this is a good settlement, for reasons you’re not fully aware of, and much of your criticism is unfair. Here’s why:

1. First, we’re getting at least 80% of a loaf (more on that, too, later) rather than none: There is no law in California or the United States or, to my knowledge, in Canada or the UK, that requires DVDs to be captioned at all, as to any part, much less “special features.” While there are requirements that broadcast television must follow, nothing requires studios to put captions on DVDs (or tapes). Some excellent films that I would enjoy – including relatively recent releases such as Jeff Daniels’ Escanaba In Da Moonlight – aren’t captioned at all. So to obtain captions for “special features” was a signal achievement: We’ve got the major studios (and, yes, more about that in a little while, too!) doing something that (a) they’re not required to do at all by any law, and (b) which goes well beyond anything anyone has suggested in the past for “special features.”

   How did we do that? Well, we did it by a tremendous trade-off thanks to incredibly competent and dedicated attorneys, who made an unbelievable sacrifice. Specifically, California law would have permitted us – the “Plaintiff Class” of Californians only – to have “recovered” as much as $50 million, and perhaps more, in damages for the deception resulting from uncaptioned special features. We traded those “damages” for the promise of the studios to do something they otherwise had no intention of doing: Captioning the special features. And we gave up the “damages.” Except that, had we continued, the studios would have fought tooth and nail to prevent paying out money like that, and, even if they had lost (a difficult question), the “damages” would have only gone to those members of the class who filed proofs that they had bought DVDs that were incorrectly labeled, and who would have gotten perhaps a few dollars – U.S. – apiece. The percentage of applications like that in class action cases is usually no more than about 1%. In other words, the studios probably would have paid out less than a million dollars. And “special features” still wouldn’t be captioned.

   Now they are.

2. And as for the “80%” plateau. Please keep in mind that the studios are to caption at least 80% of titles, representing most of their largest sellers. In terms of units sold, there will be (I think) closer to 90%+ with full captioning. If you want to see the “bonus features” for Pirates of the Caribbean II, they’ll be there: Bubba Ho-Tep Part II (if, God forbid, it’s ever done!) may not be a big candidate. But nearly everything else will have captions. That’s good. Very good.

   As for the lawyers, I’m a lawyer, and I like to think I’m a good one. But I didn’t have the skills to do class action work – it’s very intense, with massive time demands – and I’ve sought a class-action firm for over five years to take this case. Most turned it down. One didn’t: The Mills Law Firm. Harry Schulman and his partner Robert Mills took on some of the largest companies in the world: AOL Time Warner; Walt Disney (owner of Disney, Pixar and ABC), and others. They’re a two lawyer firm, assisted by Rob Bramson. And they forced a settlement out of some of the largest law firms to be found; when we had two settlement mediations, there were over 30 attorneys in the “defense room”… and me, my wife, and three – Harry, Robert and Rob – in the “plaintiff’s room.” They spent, collectively, thousands of hours in this case, including making the absolutely incredible decision to go for a “captioning” settlement rather than a “damages” one. Doing so meant that they gave up the change for probably $10 million in fees or more; as it is, they have basically made their hourly rate, but done a huge service to the handicapped community. They deserve great praise and thanks.

3. Lastly, this case started against Disney and Warner Brothers. Harry and his partners made a phenomenally smart move: They got the settlement against Disney and Warner, and then informed the other studios that they would be sued and a similar settlement sought which, if not agreed to, would go to trial. Those studios essentially caved in due to competitive pressures (Pixar is now part of it, by the way, due to its merger with Disney) and we now have virtually all of the major studios. Smaller studios that don’t comply (some already do) face serious competitive pressures to conform. This, too, is a good thing.

I can’t help but say that I’m proud of what happened here: Instead of a few Californians getting a few bucks, all of the United States and, in all likelihood, our friends in the English-speaking world of Canada, England, Ireland, Scotland, Australia, New Zealand and English-speakers in other countries will be able to see the “deleted scenes” and “Making of…” that they never could see before. No one until this case made any effort to get that much or, for that matter, anything. Others may want more, and I agree with them, and I hope they will take whatever effective steps that exist to do so. But let there be no doubt: Deaf and Hard-of-Hearing people will, as a result of this settlement, have the single largest increase in captioned recorded materials since VHS recording began.

Again, thanks for showing you care; we can disagree on some things, as long as we agree on this: Silence against discrimination is worse than failure; words without action are the same as silence.