It Shall Be Unlawful to Sell Non-accessible Books

Here's an assertion that a few years ago would have been preposterous. Today, it's still pretty far out on the fringe. In ten years I think it will be obvious:

It shall be unlawful to sell books in the United States without making accessible versions available on the same terms.

The reason that this assertion has not been true in the past and may well be true in the future is the continuing progress in e-reader and digitization technology, combined with the structure of the Americans with Disabilities Act (ADA). To review, the ADA forbids discrimination against the disabled, and includes the following in its definition of discrimination:

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;

Offering a book for sale without offering an accessible version can only be considered discriminatory if

1. Making a book accessible "would fundamentally alter its nature" or
2. Making a book accessible would not pose an "undue burden" on the entity offering the book for sale.

Let's look at both of those points a bit.

Today, most people think of digitized books as being rather different things from the print products. The way you use them is different, the way you acquire them is different, and the way they are produced is different. But for many people, a threshold has already been passed, in part due to the adoption of reader devices. I used to wake up to the sound of my early-rising wife flipping the pages of a novel, now it's the click of a button on her Kindle.

Think of scholarly journals 10 years ago. They were printed things that libraries put on their shelves. E-journals were a different thing entirely, and though most of the important publishers were focused on moving their services on line, revenue streams were dominated by print. Ten years later, there is nothing remarkable about having a digital version of a print journal, and while libraries are still considered daring when they choose to do away with print subscriptions entirely, there are few libraries not considering that as a possibility. Many journal publishers now have digital revenue larger than print, and almost all of them view the future as being purely digital.

I don't think it's a huge stretch to think that in 10 years, it will seem natural to think of the digitized book as having fundamentally the same nature as a printed book.

Today, it may no longer be an undue burden to require a producer of a printed book to also produce a digitized (accessible) book. Ten years ago, the cost to digitize a book would have been roughly $10/page. The digitization and conversion process has since become dramatically less expensive. Brewster Kahle estimates the Internet Archive's cost for book scanning at about 10 cents/page, and although you'd also need to add costs for an accessible book delivery system, it's no longer prohibitively expensive. Imagine how cheap it will be to digitize and deliver an accessible book ten years from now!

Already, publishers are making accessible versions of their most popular books available through organizations that provide services for the reading disabled. For example, even though J. K. Rowling refuses to allow the Harry Potter series to be sold as ebooks, accessible ebook versions ARE available through Bookshare and Accessible Book Collection.

If you accept the premise that book publishers will at some point be forced to deeply confront the requirements of the Americans with Disabilities Act, many features of the proposed (and currently in limbo) Google Book Search Settlement Agreement make a huge amount of sense. As part of the agreement, Google would have been required to develop a service providing access to a huge collection of digitized books for the reading disabled. This would be simultaneously a huge benefit for the disabled and a benefit for booksellers, publishers and libraries, who would most likely be spared the expense and burden of deep ADA compliance. Google has downplayed the notion that the Settlement Agreement would shape the future of the book, but it seems to me that it would most certainly have shaped the future the accessible book.

The critical importance of ADA compliance for the Google Book Search Agreement was confirmed by the Statement of Interest (pdf) filed by the US Department of Justice (DOJ). After dealing with its concerns about antitrust and sufficiency of class notice and representation, DOJ emphasizes its interest in accessibility:

First, the parties have sought to maximize accessibility in a way that will provide individuals with print disabilities with a substantially similar experience as users without print disabilities. In the Proposed Settlement, Google has committed to providing accessible formats and comparable user experience to individuals with print disabilities – and if these goals are not realized within five years of the agreement, Google will be required to locate an alternative provider who can accomplish these accommodations. Along with many in the disability community, the United States strongly supports such provisions.

Second, given the nature of the digital library the Proposed Settlement seeks to create, the United States believes that, if the settlement is ultimately approved, data provided should be available in multiple, standard, open formats supported by a wide variety of different applications, devices, and screens. Once these books are digitized, the format in which they are made available should not be a bottleneck for innovation. Google has made clear in the past that it started this project on the premise that anyone, anywhere, anytime should have the tools to explore the great works of history and culture. However the Proposed Settlement is modified by the parties, this approach should continue to be at its heart.

The DOJ's second point is somewhat puzzling unless you consider technical issues surrounding accessibility. Disabilities come in many varieties, and it is unlikely that a single accessibility service would meet the needs of every reading disabled user. A book that is accessible to a dyslexic would not be accessible to a blind person; only through the use of open, published formats can we be assured that there will be a route to accessibility for every disabled user.

The DOJ expressed concerns about other aspects of the agreement, but unlike many opponents of the agreement, it urged to parties not to lose momentum towards reaching a workable agreement for lawful, large scale digitization of books. The Authors, Publishers, and Google appear to be working to do just that; while they certainly are trying to live up to Google's motto, "Don't Be Evil", there are also laws encouraging them to do the right thing.

Forty years ago, there was no such thing as an ebook. Soon, all books may need to have ebook versions. Another example that over the short term, things change more slowly than you expect. Over the long term things change more than you can imagine. (If you know who said that, please leave a comment!)

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