AGREEMENT
This agreement ("Agreement") is made and entered into this _ day of
September 2008 by and between the Attorney General ofthe Commonwealth of
Massachusetts, Martha Coakley ("Attorney General"), having her principal offices at One
Ashburton Place, Boston, Massachusetts 02108; the National Federation ofthe Blind,
Inc. ("NFB"), having its principal offices at 1800 Johnson Street, Baltimore, Maryland
21230; and Apple, Inc. ("Apple"), having its principal offices at 1 Infinite Loop,
Cupertino, California 95014 (collectively, the "Parties").
BACKGROUND
• Apple is a technology company whose products and services include iTunes, iTunes Store, and iTunes U.
• Apple is strongly committed to making iTunes, the iTunes Store, and iTunes
U accessible to the blind.
• iTunes is a software application for obtaining, playing and organizing digital media.
• iTunes Store is an online service to which customers may connect using iTunes to purchase and download music, television shows, movies, audiobooks and podcasts; rent movies; and obtain digital media from iTunes U.
• iTunes U, a collaboration between Apple and various educational institutions, is a dedicated area within the iTunes Store featuring free content provided by those institutions, including course lectures, language lessons, lab demonstrations, sports highlights and campus tours.
• iTunes Store and iTunes U are collectively referred to here as "iTunes Services."
• iTunes and the iTunes Services are available for use in connection with both
Mac and Windows operating systems.
• Screen Access Software is software that renders on-screen information into
Braille or speech so that blind persons can independently navigate the Internet, access information and interact with software programs on a computer using keyboard commands.
• Apple includes Screen Access Software as part of its OS X operating system on a Mac, which enables use ofiTunes and access to the iTunes Services by the blind.
• Windows, the operating system provided by Microsoft, does not include
Screen Access Software. Accordingly, third parties have developed Screen Access
Software commercially for Windows.
• The Attorney General is the chief law enforcement officer ofthe
Commonwealth ofMassachusetts and, among other duties, is responsible for the enforcement in Massachusetts of civil rights laws ensuring equal and fair access to places ofpublic accommodation.
• The Attorney General has been investigating whether iTunes and the iTunes
Services are Fully and Equally Accessible to the blind residents ofMassachusetts.
• Apple has cooperated with the Attorney General's investigation.
• NFB is a not-for-profit national organization ofblind persons working to integrate the blind into American society and the economy on terms ofequality and independence, and has been involved in promoting adaptive technology for the blind, so that blind persons can live and work independently in today's technology-dependent
2 world.
• NFB has raised concerns with Apple about equal accessibility for the blind to iTunes and the iTunes Services, and Apple has been responsive to those concerns.
• Apple, the Attorney General and the NFB differ as to what applicable law requires in regard to iTunes and the iTunes Services, but whether legally required or not,
Apple is committed to making iTunes Fully and Equally Accessible.
• In the hope ofreaching shared goals in a cooperative manner, Apple, the
Attorney General and the NFB, have agreed to enter into this Agreement.
ACCORDINGLY, the Parties agree as follows:
1. Apple shall provide Full and Equal Access to all information, interactions, features, products and services ofiTunes and iTunes Services (including the ability to locate and download iTunes software and updates from the Apple.com website or by other methods ofdistribution) on the following schedule and continuing thereafter:
(a) in regard to iTunes U on the Mac operating system, by December 31,
2008;
(b) in regard to iTunes U on the Windows operating system, by December
31,2008;
(c) in regard to iTunes Store and iTunes on the Mac operating system, by
June 30, 2009; and
(d) in regard to iTunes Store and iTunes on the Windows operating
system, by June 30, 2009.
3 2. "Full and Equal Access" and "Fully and Equally Accessible" means that blind
customers using Screen Access Software may access or acquire the same information, engage in the same interactions, and enjoy the same iTunes products and services Apple offers its sighted customers with substantially equivalent ease ofuse. In regard to iTunes for Windows, Apple shall be considered in compliance with Sections 1 and 7 ofthis
Agreement if, no later than June 30, 2009, iTunes for Windows employs Microsoft
Active Accessibility ("MSAA") standards and/or other enabling technology to ensure that
blind persons enjoy Full and Equal Access. Apple shall work with vendors ofMSAA
compliant Screen Access Software to facilitate the compatibility oftheir programs with
iTunes.
3. Apple shall not be obligated to independently investigate the accessibility of content provided by third parties on the iTunes Store or iTunes U. Apple shall strongly
encourage all content providers to provide Full and Equal Access to their pages on the
iTunes Store and iTunes U and has already provided templates for accessible labeling of
pages. IfApple is notified that any such page does not comply with the accessibility
provisions ofApple's templates for iTunes Store and iTunes U, Apple shall notify the
content provider that the page does not comply with such accessibility provisions.
4. Apple shall report whether it is on track toward completion ofthe above
commitments to the Attorney General and NFB on a monthly basis until such
commitments have been achieved.
5. The Parties understand that the changes required to meet this timetable may
entail unforeseen complications and may necessitate solutions not yet developed. Should
such complications occur, Apple shall notify the Attorney General and the NFB that
4 additional time may be required. The Attorney General and NFB shall consider any reasonable request by Apple for an extension ofthe time table set forth above up to an additional three months. Apple shall inform NFB and the Attorney General as soon as practicable ifcircumstances arise requiring it to request any further extensions.
6. Apple shall ensure that all Apple employees who have a role in programming, coding, adding data to or editing iTunes understand Apple's commitment to ensure that iTunes and the iTunes Services remain Fully and Equally Accessible.
7. Apple shall ensure that any new version ofiTunes or the iTunes Services provides Full and Equal Access at the time ofdeployment.
8. Apple shall continue to coordinate cross-functional responsibility for making iTunes and iTunes Services accessible.
9. Apple shall continue to have individuals responsible for handling disability- related complaints from Apple's customers; shall continue to maintain a discussion forum for accessibility issues on its web site; will continue to publish on its web site an email address for accessibility inquiries ([email protected]); and shall continue to respond to inquiries at this email address, typically within forty-eight hours. IfApple is unable promptly to resolve customer issues related to iTunes on Windows, it shall refer such inquires to the appropriate Screen Access Software vendor.
10. Apple shall continue to consult at least on a quarterly basis with disabled consumers and with individuals with expertise in accessibility technology in regard to accessibility issues as Apple develops new technologies for iTunes and the iTunes
Services.
5 11. Apple shall test the accessibility iTunes and iTunes Services, including by
blind users, in connection with the development ofnew versions and technologies.
12. Apple shall continue to train sufficient customer assistance personnel timely to assist blind consumers who encounter difficulties with iTunes or the iTunes Services
and shall maintain a procedure for directing requests for assistance to such personnel.
Apple shall provide a mechanism within iTunes for use by blind persons who wish to communicate with Apple about accessibility, such as a menu item in iTunes and a resulting feedback page on the Apple.com web site.
13. In pursuit ofthe goals expressed herein, within thirty (30) days ofthe execution ofthis Agreement, Apple shall contribute an amount equal to two hundred and
fifty thousand dollars ($250,000) to the Massachusetts Commission for the Blind to purchase adaptive technology for blind Massachusetts residents, subject to the oversight ofthe Attorney General.
14. The NFB does hereby completely release and forever discharge Apple, its affiliates, and its and their present and former shareholders, officers, directors, agents, employees, attorneys, successors, and assigns (collectively, "Released Parties") from all claims, rights, demands, actions, obligations, liabilities, and causes ofaction ofevery kind and character, known or unknown, relating to the accessibility ofiTunes or iTunes
Services by blind persons using a personal computer with Screen Access Software, whether based on tort or any federal, state, or local law, statute, or regulation, prior to or during the term ofthis Agreement (collectively, the "Released Claims"). By way of example and not in limitation ofthe foregoing, Released Claims shall include any claims
arising under the Americans with Disabilities Act, Article 114 ofthe Amendments to the
6 Massachusetts Constitution, the Massachusetts Equal Rights Act, the Massachusetts
Consumer Protection Act, the California Unruh Act, and the California Disabled Persons
Act. A civil action for breach ofthis Agreement shall not be a Released Claim.
15. The NFB shall not bring a civil action in any court against Apple or any other
Released Party asserting any Released Claims.
16. The Attorney General and Apple agree that so long as Apple is in compliance with the terms ofthis Agreement, the Attorney General shall not bring a civil action in any court during or after the term ofthis Agreement asserting any claims, rights, demands, actions, obligations, liabilities, or causes ofaction ofany kind or character, known or unknown, relating to the accessibility ofiTunes or iTunes Services by blind persons using a personal computer with Screen Access Software during or prior to the term ofthis Agreement, whether based on tort or any federal, state, or local law, statute, or regulation. Notwithstanding the foregoing, the Attorney General shall not be
precluded from bringing a civil action during or after the term ofthis Agreement ifand to the extent that applicable law changes and Apple fails to comply with such change.
17. At any point during the term ofthe Agreement, if either the Attorney General
or the NFB believes that Apple is not in compliance with this Agreement, then such party
shall notify Apple ofthe alleged noncompliance, specifically identifying same, and Apple
shall have ninety (90) days from receipt ofsaid notice to cure the alleged breach. Should
Apple determine that more than ninety (90) days is needed, Apple shall notify the
Attorney General and the NFB ofsuch need for additional time. The Attorney General
and the NFB shall consider and act reasonably in response to any such request.
7 18. This Agreement shall have effect from the date ofexecution by the Parties and
shall continue in force for a period ofthree (3) years from the date that iTunes becomes
Fully and Equally Accessible.
19. This Agreement may be enforced by any Party to the Agreement in the courts ofthe Commonwealth ofMassachusetts.
20. This Agreement shall be governed, construed and interpreted in accordance with the laws ofthe Commonwealth ofMassachusetts, without regard to the conflicts of laws provisions thereof.
21. This Agreement contains the entire agreement ofthe Parties concerning the subject mater hereof, and supersedes any other prior agreements, either oral or written.
No modification to this Agreement shall be effective unless reduced to writing and signed by the duly authorized representatives ofthe Parties. Each signatory represents that he/she is authorized by their respective Party to enter into this Agreement on such Party's behalf.
22. Notices to be given to a Party shall be effective when delivered by certified mail, overnight courier or other method providing evidence ofactual delivery to the respective Party at the following addresses:
Ifto the Attorney General: Attorney General ofMassachusetts, One
Ashburton Place, Boston, MA 02108, Attn: Maura Healey, Esq., Division Chief, Civil
Rights Division.
If to Apple: Catherine A. Novelli, Vice President Worldwide Government
Affairs, Apple, Inc., 901 15th St., N.W., Suite 1000, Washington, D.C. 20005.
8 Ifto NFB: The National Federation ofthe Blind,lnc., 1800 Johnson Street,
Baltimore, Maryland 21230. Attn: President; Copy to: Daniel F. Goldstein. Esq., Brown
Goldstein & Levy LLP, 120 E. Baltimore Street. Suite ·1700, Baltimore, Maryland 21202.
A Party may change the address infonnation for providing notices by giving the other Parties notice in accordance with this Part.
23. No Party may assign any ofits rights nor delegate any ofits obligations under this Agreement to any third party without the express prior written consent ofthe other
Parties; provided that. notwithstanding the foregoing, Apple may assign this Agreement to (a) any corporation or other entity resulting from any merger, consolidation, or other reorganization involving Apple, (b) any of its subsidiaries or affiliates, or (c) any person to which it transfers all or substantially all of its assets. Any prohibited assignment shall be null and void for all purposes. This Agreement shall be binding upon the successors, affiliates and pennitted assigns ofeach ofthe Parties.
COMMONWEALTH OF APPLE, INC. MASSACHUSETTS () . ~f' MARTHA COAKLEY By: ~- By: _ Date: _ THE NATIONAL FEDERATION OF THE BLIND, INC. By: ~~. VVL~~'1---'_"_h Dr. Marc Maurer.~1 President Date: ¥ ;&~} m g' 9 Ifto NFB: The National Federation ofthe Blind, Inc., 1800 Johnson Street, Baltimore, Maryland 21230, Attn: President; Copy to: Daniel F. Goldstein, Esq., Brown Goldstein & Levy LLP, 120 E. Baltimore Street, Suite 1700, Baltimore, Maryland 21202. A Party may change the address information for providing notices by giving the other Parties notice in accordance with this Part. 23. No Party may assign any ofits rights nor delegate any ofits obligations under this Agreement to any third party without the express prior written consent ofthe other Parties; provided that, notwithstanding the foregoing, Apple may assign this Agreement to (a) any corporation or other entity resulting from any merger, consolidation, or other reorganization involving Apple, (b) any ofits subsidiaries or affiliates, or (c) any person to which it transfers all or substantially all ofits assets..Any prohibited assignment shall be null and void for all purposes. This Agreement shall be binding upon the successors, affiliates and permitted assigns ofeach ofthe Parties. COMMONWEALTH OF APPLE,INC. MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL 7..:"- l,f'';' •.J .j;~; i f ;/../" ..._~\ 1'- :/ .. By: .(.li~4~':':C;;;'ti.fLJ~L~f~ _ Jeffrf±y D..Jements, Chief Public P~otection and Advocacy Bureau Date: ,,~-:;y.j:i~!2f!.t:t;L::2:.2~"· -yJoj'" THE NATIONAL FEDERATION OF THE BLIND~JNC.