If you stay remotely up to date on the goings-on in the video game industry, or if you have a sizable assortment of news outlets on your RSS reader for that matter, then you’ve most likely seen the name Alexander Stern lately. It seems as though the entire interwebs are abuzz with coverage and discussion of his recently-filed lawsuit. For anyone who doesn’t know about it, I’ll attempt to give a readers digest version before giving my two cents on the whole situation.
In late October, Alexander Stern filed a lawsuit in the California Central District Court (case # 2:2009cv07710) against the “Sony Corporation of America et al.” — to be more precise, though, his target was Sony Online Entertainment. You see, Alexander is blind. He’s claiming that Sony’s games, specifically Everquest 2, are in direct violation of the Americans with Disabilities Act (ADA) because they discriminate against the visually impaired in the sense that you can’t play them if you can’t see. Furthermore, the lawsuit makes the claim that Sony is directly costing Stern money. Sony offers an official action service through which players can exchange in-game stuff for real money in a sort of player-run micro-transaction economy. Since this service exists, Alexander basically argues that farming for items in EQ2 would, if not for the fact that blind people can’t play EQ2, be a perfectly viable income stream to him. If you follow that train of logic, it implies that Sony is, through inaction, preventing him from making a living. Solution? He thinks Sony should pay him a big ol’ bucket of cash as “lost wages” for lack of a more descriptive term.
Across the ‘net, most everyone seems to be taking the exact same position on this: the lawsuit is frivolous and will be promptly thrown out. And while I concede that this particular lawsuit will most likely get the boot before it moves too far in the courts, I think that most people are echoing this position/opinion for the wrong reasons. Most are saying that it’s simply ridiculous to apply the ADA to video games. I think the real reason it’s going to hit a judicial roadblock, though, is its fairly transparent goal of an easy payday. Not to go all reductio ad absurdum, but this seems like suing some firearms manufacture for not building in an auditory cue when the gun is trained on a potential target because, hey, if it weren’t for their refusal to comply, competitive big game hunting would be a practical career choice for the blind.
Once you push past that, though, I believe it can be argued that the basis of the lawsuit in the application of the ADA to games is potentially sound. Not necessarily a good idea and course of action, mind you, but sound nonetheless.
While the ADA does not yet have explicit compliance requirements in place for video games (i.e. explicit naming of electronic entertainment as the target), I think it could potentially be argued that the existing form of the ADA coupled with related rulings and opinions contain implicit coverage of such games. You see, when most people think of the ADA, they say “oh, that’s the law that says that public buildings need to be handicapped accessible.” This simplification isn’t wrong per se; to the contrary, Titles II and III of the ADA are dedicated to precisely that sentiment (as well as covering other public facets, such as public transportation).
When the issue of accessibility in video games is discussed, people turn to this simplified assumption and use it to argue that video games aren’t “public” and therefore don’t need to be accessible to the disabled. One can see how this position could be reached, too: video games are initially developed and released by privately owned companies, and upon their release are generally only made available to a select subset of the population (i.e. people that buy them). This is where game developers generally stand when forced to give a concrete stance on the issue of practicing accessible design. They’ll make some limited efforts to accommodate when it suits them, but they feel they’re legally in the clear.
There’s only one problem with that concept of the ADA: it’s limited and outdated. The first three acts of the ADA originate from a time when the information age was in its infancy. When they were passed, the so-called “public space” was strictly that: physical, public locations. The Internet had not yet become the dominant interaction and communication space that it is today. Within a few short years, though, that had all begun to change. The first judicial acknowledgment of this was in the early 90s when the ADA was amended with Title IV requiring that the telecommunications industry take reasonable steps to make their services accessible to the deaf and hard of hearing. Once the telephone was brought into the defined public space, it was only a matter of time before other forms of computerized communication were brought into the fold as well.
This position was further built on in 1996 when the Department of Justice issued a ruling that the Internet itself fell within the purview of the ADA and that its accessibility standards could be extended to the design of webpages. In a September 1996 letter to Sen. Tom Harkin summarizing the ADA’s relevancy to website accessibility, Assistant Attorney General Deval Patrick stated the following:
Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.
As one can imagine, this was really more symbolic than a firm declaration demanding immediate cooperation. While government websites were quickly retrofitted to comply, the rest of the net (even back then) was far too large and ungoverned for this requirement to be enforced to any practical degree. Only in situations where the time and money is invested to actively pursue forcing a major website to comply does the issue attract legal attention. An example of this was the landmark suit versus Target, finally settled in 2008, which ultimately forced Target to completely redesign their online presence from the ground up to be more accessible.
Now, we’re at a point where — at least “officially” — the online presences of covered entities are required to effectively communicate with their customers. If the customer may be blind, then it’s up to the entity to provide reasonable accommodation (such as screen-reader compatibility). What’s a covered entity, you ask? Well…um…it’s… Yeah, there’s no way I’m getting into that here. Suffice it to say that Sony is most definitely an entity of the covered variety.
Here’s where I think game developers such as Sony could potentially find themselves forced to drastically improve accessibility, *IF* a lawsuit was properly structured so as to follow this logic. Sony Online Entertainment “generally communicates” via “computerized media” — particularly in the case of their MMOs, where the product/service itself can be identified as the method of communication with the user. By reasonable extension of Assistant Atty. Gen. Patrick’s statement, Sony must be prepared to, at the very least, provide an alternative accessible method of said communication to those users who require it. But providing a true, complete alternative would not be practical. It would essentially mean creating an entirely new build of each game from the ground up capable of meeting the needs of each potential user subset. When an accommodation is deemed unreasonable, covered entities are not legally bound to make it, and therefore the above option would never be enforced.
There can be, however, major improvements to the accessibility of almost every existing and in-development video game whose implementations are by no means unreasonable. In fact, most of these improvements can be made completely transparent; that is, they should be completely invisible to all users except those actually using them. Examples of such improvements are the inclusion of subtitles, complete control customizability, the ability to run a game in a window and at any resolution, and the inclusion of APIs capable of outputting in-game text for reading by external applications.
So finally, I answer the question I initially posed in this entry’s title: do video games really need (in a legal sense) to be accessible to disabled gamers? Quite simply, my answer is no. I don’t believe there is any concrete grounds on which legal action can be taken to force a video game developer to make a title completely accessible to every foreseeable player. It’s simply an unreasonable expectation from the disabled gaming community, and in my opinion rather unfair to demand. However, if so inclined, the Department of Justice would have more than enough precedence to require developers to take reasonable steps to implement accessibility features which directly address the most common needs of disabled gamers. But frankly, I’m not sure if this would be beneficial. The paradigm is ever shifting, and more and more game developers are actively working with groups like the AbleGamers Foundation to implement the features that we disabled gamers want and need. Outreach is the way to get what we need, not legal action. At best, all a ruling confirming the ADA’s relevancy to video games would do is make developers bound to do what most of them already are. At worst, frivolous suits like Alexander Stern’s create a massive negative stigma for the game accessibility movement, not only in the eyes of the game development community but also in the wider public.
Regardless, I’ll be actively following this case. As obvious as the outcome may seem to most of us, the final resolution of this suit could potentially have a drastic impact on the game development industry. Let’s just hope it doesn’t mark a major step backwards for the accessible gaming movement…