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[This post is reproduced from http://www.gamerlaw.co.uk/. You can speak with Jas via Twitter: www.twitter.com/gamerlaw]
Sony succeeded last week in defeating a lawsuit by a disabled US gamer, who had claimed last year that Sony games like EverQuest violated the Americans With Disabilities Act by denying him "full and equal enjoyment" to the games. The gamer, Alexander Stern, who apparently has impaired vision, argued that Sony should provide him with "auxiliary aides and services" so that he could enjoy the games fully and compete with other gamers equally. This has got me thinking about an interesting issue: should gamers be protected by anti-discrimination laws?
So what do anti-discrimination laws do?
The key purpose of anti-discrimination laws is to ensure that employers/providers of services in the public sphere cannot discriminate against a person on the basis of his/her personal characteristics (e.g. physical disability, belief, gender, nationality, ethnicity etc). In the UK, the principal legislation which sets out these protections are the Equality Act 2006 and the Disability Discrimination Act 1995.The 'public' element is critical: anti-discrimination laws generally only cover things that happen in public. So, for example, it is generally illegal to refuse someone else access to a restaurant based on their nationality, but you could refuse them access to your home for pretty much any (peaceful) reason.
It’s important to bear in mind that anti-discrimination laws do not generally apply between private individuals. If person A makes racist comments to person B, that’s not a matter for anti-discrimination law (it might be a race-related offence in your jurisdiction, though). In other words: discrimination laws only kick in where you need something from someone, but they won’t give it to you because of your personal characteristics.
Why should games be protected by anti-discrimination laws?
The Sony case itself shows that there is a need for games companies to take discrimination of disabled gamers seriously, even if the discrimination was inadvertent. Similarly, consider the following hypothetical examples:
- A MMO bans men from playing as women and vice versa
- Another MMO bans gay people from playing it
- A game is released in a multilingual country (e.g. India) in only one little-spoken language
- A game is released on terms that it can only be sold to a particular ethnic group
Seem far-fetched? One of them (the first) has already happened. In each of these situations, there would be an argument that gamers are discriminated against. Unless they have legal protection, the only real way they could respond would be to vote with their feet by leaving the game, which for many would be unacceptable. That said, on the other hand games companies would no doubt be understandably concerned at the cost that all of this could involve (for example, the cost of making an AAA game fully accessible to both fully and partially sighted gamers). So clearly there would have to be a balancing exercise, with protection for gamers but not at extortionate cost to games companies. A legal regime could help to resolve this situation - hence the argument that anti-discrimination laws should protect gamers.
Do anti-discrimination laws already cover games?
Following the Sony case, the answer for the USA seems to be: no. Judge Percy Anderson ruled in this case that Alexander Stern’s claim failed because US case law had already established in 2000 that the anti-disability discrimination law on which he relied (the Americans with Disabilities Act) only applies to “places of public accommodation”, which the judge said means actual physical places and not games.
Therefore, the judge said the US anti-discrimination laws would cover Stern if he was unable physically to enter one of Sony's games conventions, but would not cover Stern being unable to play Sony games themselves. As a result, the judge did not go any further into how games could be protected by anti-discrimination law (and, in particular, whether game playing is 'public' or 'private' - more on that later on).
That decision seems effectively to exclude US gamers from the protection of anti-disability discrimination laws. This is a pity, particularly since the learned judge seems to have taken a pretty unenlightened approach to online games, even if he was required to follow the established case law.
But, other countries have not adopted that same legal analysis. The UK analogy to the Americans with Disabilities Act (called the Disability Discrimination Act 1995), for example, does not have the same express US requirement that the discrimination must take place in relation to a physical place. So, leaving aside the slightly odd idea that discrimination has to have occurred in relation to a physical place, I ask…
How should games be protected by anti-discrimination laws?
The basic framework is already there in the US and UK laws (i.e. the Americans with Disabilities Act and the Disability Discrimination Act 1995):
(i) Prove there was actually discrimination; and
(ii) Prove it took place in the public sphere.
Whether there was actually discrimination will always depend on the facts of the case, so not much more I can say about that. The interesting question though is whether game playing takes place in the public or private spheres.
Is playing games a private or public activity?
I think there is a good argument that game playing is a public activity simply because games are open to absolutely everyone, assuming of course gamers have the minimum level of hardware and have paid for the game of course. The argument is strongest for multiplayer games, especially MMOs, where gamers are encouraged to make the game as public as possible (by that logic though, playing single player games is less likely to be a public activity).
Take a real world parallel: going to a theme park. You have to pay to get in, but otherwise you are pretty much free to go on the rides and play the games as you wish, with whoever you wish. To my mind, that is no different to playing a multiplayer game with your friends. Therefore, if entry to theme parks is covered by anti-discrimination laws, why not playing games too?
Conclusion: there is a good argument that playing games does take place in the public sphere, and so we pass the first and main hurdle for anti-discrimination laws and games (the idea that games take place in the public sphere has a much wider application of course, but that's a topic to discuss on another day...)
Now, in relation to discrimination such as arbitrarily banning certain people from playing your game, the response would then be straight-forward: you are legally prohibited from doing it. But disability discrimination and games could be harder to deal with, because at that point we get into a balancing exercise between protecting disabled gamers but not to the extent of bankrupting the games companies or ruining games for everyone else. In particular, games companies would have a strong argument that the simple reality is that some games simply cannot feasibly be adapted for disabled gamers. Getting the balance right would be difficult, yes, but just because it is difficult doesn’t mean it should be ignored.
Of course, the Sony case seems to settle the position in the USA for the foreseeable future and, unless and until there is a court challenge in the UK or elsewhere, we don’t seem likely to see any movement towards a more explicit way of helping disabled gamers, or protecting gamers from discrimination more generally. This is yet another growing legal issue in gaming about which we will have to watch, wait and see…
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© Jas Purewal 2010. Gamer/Law and this post are intended only as a means of bringing news of games and technology law and practice to its readers; it is not intended to provide legal advice and is no substitute for it. If you'd like to contact us concerning the contents of this blog or any other games or technology law-related topic, you can email here or tweet GamerLaw. Thanks.
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A majority of game accessibility features are not prohibitively expensive, such as allowing remapping controls, allowing the use of alternative controllers like the Quad controller, closed captioning, colorblind modes and cognitive assist modes (turn based instead of real time, tutorials, hint assist systems, slowing time to give player more time to react). Many games already include these modes, but usually only one of them, not all together in one game. This is typically because of lack of awareness of the other issues besides the one they are dealing with or lack of time to implement other solutions, because lets be honest, game accessibility tends to be an afterthought for most developers, unless someone on the team is an evangelist for them and brings it up early in development.
You seem to care about this issue and want to see more accessible games, but it's troubling you lack certain key understandings, which in turn hurt the argument for accessible games.
The long term answer doesn't seem like retro-fitting a FPS for a differently-abled player but to design games with their needs from the get-go.
You're taking one specific worst case scenario and using it to invalidate an entire class of features, when what is more appropriate is to evaluate each feature on its own.
It's possible a player driven AI system for one button accessible controls could be expensive, but we don't really know for sure, do we? What if someone took the Unreal 3 Tournament bots and put the player camera on one and made shooting controllable by the player? That doesn't sound prohibitively expensive to me.
I agree that no one wants to bankrupt developers but to say that accessibility features will do that is not true. That's like saying implementing FPS game mechanics is too expensive! That's a stupid statement because FPS mechanics are a broad, huge category of features! We've got player movement, weapon systems, enemy AI, upgrades, etc.
The same with game accessibility features, it's a huge category of features with their own systems. A developer starting out with limited knowledge of all the issues and funds starts by choosing one feature it can implement well and then goes from there.
Take closed captioning for instance. My team and I developed a closed captioning mod for Doom 3. http://www.youtube.com/watch?v=LnLyKbCjlog It took a core group of people spread all over the world several months to work on this because most of us had full time jobs or college. Doom3 didn't have any subtitling system, we had to create one from scratch and include sound effects, along with dialog.
After speaking with engineers at Valve Software (who provide closed captioning for ALL of their games) and other industry programmer veterans, everyone was unanimous that a closed captioning system would take most developers about two weeks to build.
That is not prohibitively expensive for most developers. Just ask Valve Software, it's a write-it-once kind of system and the only maintenance afterward is getting the text of the dialog and sound effects into the captioning files, which anyone, such as an intern can do.
Let's also realize that most games already do have a subtitling system, such as Quantic Dream's Heavy Rain for example, which is released today in the US. The subtitling is decent (lacks tinted black background to make letters more readable).
There's a sequence in the game (no spoiler coming up) where the player can hear screams and thuds, as if someone is being beaten up, but it's obscured and can't be seen. If the player is deaf, they will completely miss this and miss several minutes of additional gameplay. But the game already has subtitling and it would not take much effort on Quantic Dream to include sound effects into the subtitling system. Most developers can do this also.
What some people seem to want is to foist their disability onto everyone, including both public and private entities, and assert that even if they represent a small minority of the populace, they expect every product to cater to their disability. That is an unrealistic expectation, especially when dealing with private companies and entertainment products that are not a necessity.
While I applaud efforts of people like Reid Kimball to diversify this medium and allow a broader audience to experience it, I also think actions, such as litigation over access to a videogame, can only create animosity and resentment in developers who feel forced to include a vast array of features that cater to a very small demographic. If there is a viable market for such modifications then the best way to edify game designers is to express this with feedback, not lawsuits.
Nobody has an inalienable right to play videogames.
It's more complex than "elective forms of entertainment", especially with MMO's. Some disabled people have great difficulty finding gainful employment and are very poor. Some people make a career out of playing MMO's and selling their characters or rare items. To the disabled person who can't work full time for a typical employer, MMO's offer a wonderful opportunity for them to make a living to support themselves and feel like they contribute to society in a dignified way.
"What some people seem to want is to foist their disability onto everyone, including both public and private entities, and assert that even if they represent a small minority of the populace, they expect every product to cater to their disability." Again, look at this from the angle of potential employment, it's not so clear cut.
I do agree lawsuits are not an ideal approach. But they are a last resort. I don't know the full extent of the case and Andrew's efforts. It's not crazy to assume he tried to contact and convince Sony to make changes before filing a lawsuit. Perhaps, he had run out of options.
I lack the ability to play the game (old machine). They lack the ability to play the game (bad eyesight). Should one thing be covered, but not the other?
Come on!
I am definitely sorry that this person will be unable to enjoy some things in life, but it is not our jobs as developers to accomodate for every single disability out there. That thought is just crazy. I thought freedom was one of the reasons America was awesome? Being forced to accomodate every single individual... is definitely not freedom, and especially isn't free.
I really hope you are sarcastic in your comments.
"I lack the ability to play the game (old machine). They lack the ability to play the game (bad eyesight). Should one thing be covered, but not the other?"
Can you point me to where I might obtain a new set of eyes? How about ear drums? A new hand?
Having an old computer is in no way comparable to having a disability. Grow up.
One tool of statute interpretation is looking at Congress's intent when they passed the statute(the evil the statute is trying to remedy). To determine Congress's intent, Courts will often look at the purpose of the statute. In this case, the purpose of the American with Disabilities Act was to put an end to the economic equalities facing disabled people. Based on this purpose, 'public place' would mean an office building (where the disabled person could work) or a grocery store (where the disabled person could buy affordable food). Being able to play everquest doesn't address this purpose, so the court had no reason to include it in the 'public place' definition.
Your UT example is going to make my head explode. You're making a great case to support the judge's ruling.
I've worked on applications purchased by the US gov. and I'm pretty familiar with accessibility requirements. Within our application the level of support was to provide UI and document presentation that supported screen readers and high contrast display settings, which was a reasonable level of accessibility to provide. There was no way we were going to provide color separations for the color blind, or an image recognition engine that would verbally describe embedded images in the document. Thats ludicrous, but not in comparison to your 'bot with a fire button' suggestion.
The reason the ruling makes some sense is because it would be harmful to everyone [gamers regardless of impairment as well as game developers] to try to impose unclear guidelines on the level of accessibility required to ensure that your game is legally compliant. There are some things that are beyond possibility for a disability in real life, and its unfair to suppose its any different in games. The severely vision impaired are not allowed to drive, or hold an occupation that may require them to discharge firearms [ahem] and thats perfectly reasonable.
Also, the only reason this case made any sense from the player's perspective is that this game happens to take place in a pseudo-public, virtually-real space. If this suit had any chance for success it would have had to be very careful and definitive about the nature of the accessibility being requested, and "all games playable by all people" is really far from reasonable.
Next we'd have to make games that are playable by people who just suck at them.
That said, its in a developers interest to bring their games to as many people as possible, and if the cost of accessibility is low in some cases [as you're claiming] then their is a real business reason to provide it.
Edit:
@Ian
Thanks for the very relevant context. Unless this guy is a gold farmer then his case has no economic impact and Stern doesnt sound Korean to me. Case closed.
It's not even clear that specifically multiplayer games like EQ can be considered "public" games, since multiplayer games are played by one person sitting at one computer as a private experience. The real experience is private, even if the play experience within the virtual world of the game is public in the sense that the virtual world allows character avatars to interact with each other.
Even if it were argued that a virtual world is a "place" (a question to which Judge Anderson's ruling did not speak), that still wouldn't help. For one reason, whose real-world law would apply inside the virtual world of a game? And for another, if any such law did apply, wouldn't it apply only to the virtual characters inside the virtual world, and not to the disabled person out here in the real world?
I was highlighting the absurdity of this claim as video gaming as a right. If you are to say that the person who is disabled has a right to play a videogame, why should I not have that same right? That is why this is such a ridiculous notion. Perhaps you think videogames are only falls into the category of a 'right' if that individual is handicapped? In that case sir, I say to you... Stop discriminating against me!
I think these lines between public and private are confusingly blurred by the Internet, and both lawmakers and courts are going to have to find ways of making the distinctions much more clearly in relatively near future.
As to the game-side changes, I can see the point of adding subtitles to games, and would appreciate it, but I also know that the more complexity is added to a game, the more bugs will happen. It's one thing to add in subtitles after a game has shipped and the text is locked. It's another thing when the voice and text are still fluid before that.
And finally, the proposed first person shooter w/ autoaim for the disabled -- from a game balance standpoint, I think that's a going to be fraught with difficulty to implement fairly in any multiplayer setting. Yes, bots have the basic ability to move around the map. But, most bots have different skill levels in how they do so, from the naive to the complex-- including dodging, etc. Is it fair for a beginning player to say "I want to be attached to a bot w/ the most skilled movement?" That's a huge gameplay advantage over someone else who picks naive bot movement. How is it fair to a non-disabled person X, who happens to be a newbie at the game (and the genre) playing against a disabled person Y who's a newbie at the game, but has advanced bot AI to dodge rocket blasts? Is such a situation going to be fair? Or fun? Or should someone who's physically unable to move their legs be able to play Dance Dance Revolution where movement is required?
Just as it's really hard to make an exciting theme park ride that fits everyone from a 1-year-old kid all the way up to Shaquille O'Neal/Yao Ming size, it's hard to handle any and every difference. Reward those that manage to accommodate differences, but I'd say that you shouldn't punish videogames that don't support those on the edges of the bell curve of ability/skill/etc.
To say the least, this is a slippery slope. Any ruling against videogames in favor of accessibility would open a floodgate.
Do Boardgames discriminate against the blind? How about art galleries? Or movies for that matter?
Does music discriminate against the deaf?
To consider this case as only being relevant to videogaming is myopic. The judge made the right call by sticking to the letter of the law and refraining from any kind of exposition.
Do I really need to go on (cause I can)?
Consider a book. If a person who is hard of seeing buys a book, can they sue the publisher for not having printed it in large print or having overlayed the text with braile? No.
The publisher is not discriminating against hard of seeing people because they are not refusing to sell the product to hard of seeing people. If a book store made people take a sight test before selling them a book and refused to sell the book to anyone with less than 20/20 vision, that would be discriminatory and against the law. But refusing to meet special needs? That's not what the law implies. If it did, publishers would be in a world of hurt.
Moreover, it's not even the USE of the product that's in question in this case, it's the "ideal enjoyment" of the product. It's not that the person is blind and cannot play the game at all, it's that the person is hard of seeing and just can't quite make out all the small details so can't enjoy the game perfectly and can't be as competitive when playing it online.
If the law actually required products to be "fully enjoyed" consider, for example, companies who make bras. Would a company who makes DD bras also have to provide breast implants to anyone who didn't have DD breasts and wasn't able to fully enjoy their brand new DD bra?
If you have a pollen allergy you can't go into the park in spring. Period.
If you are to week to swim well you can't go surfing where the current is strong. Period.
If your reflexes are to slow you will not have much fun trying to play UT. Period.
Certain things are the way they are. It is not like a specific video game is the only entertainment there is. There are other viable options for entertainment.
Don't get me wrong, I am in favor of video game developers doing an effort to include people with disabilities. The problem it costs time and money and certain things are not feasible. What I am totally against is people trying to sue their way into something that is fully optional.
Again, I fully appreciate your progressive stance on the issue and the open-minded manner in which you discuss the problem but I must take issue with the notion that an MMO automatically becomes a different entity merely because some people opt to use it as means of generating income. I am aware that many people, including plenty of non-disabled individuals, create characters and farm gold and equipment to sell for real money but that fact doesn’t mean the developer/publisher of an MMO is obligated in the same way an actual employer would be legally required to provide access and specialized services. The practice of selling equipment and characters isn’t something regulated or even endorsed by these MMO companies thus they are under no legal (or ethical) obligation to provide accommodations to these people.
As to the plaintiff in this particular case running out of options, such is life. If he is dissatisfied with Sony’s products then he should opt to utilize another company’s offerings rather than file what was certainly a baseless lawsuit. While I sympathize with the potential plight of this individual and those like him, we are again dealing with people who seem to think that their disability is everybody else’s problem, which is a painfully myopic stance to take in a world as troubled as ours. There is a sense of entitlement at work here because videogames are a luxury, not a right. They are also primarily a visual medium so the expectation that modifications would be offered to those with moderate to severe vision impairment seems unrealistic.
I don’t want to seem callous but I do feel that we as a society have just about reached a saturation point in regards to overcompensation for disabled people and the grossly litigious environment created by such accommodations. I’m currently entrenched in education and from my own professional experiences I can attest that the amount of funding for special education and disabled students is grotesquely disproportionate to that of mainstream students, with the latter being all but brushed aside. Equality is important but it needs to be tempered by common sense and frankly, forcing private companies to modify their products doesn’t strike me as a necessity but rather a choice that developers and publishers should make of their accord.
If implementing these modifications is as cost-effective as you claim, then the best method of getting these changes made is to edify the developers, which I think is a terrific idea. However, in any case where such modifications are being forced upon developers, I hope the courts continue to rule against such frivolous lawsuits and I also hope that companies named in such suits, upon winning, countersue for legal costs to send a message that the law doesn’t exist merely to satiate the egos and desires of individual people who believe everything in this world is a “right.”
A disabled person is fully aware that they will never be able to experience all of life's offerings, and all of us just accept that life is not alwais fair. Anti-descrimination laws are very important, but they only prevent disabled persons from descrimination in public, as well noted in the above discussion, and even for public places, there are exceptions. A person without the use of their legs could not sue an ice skating rink for their lack of ability to skate. They could sue if the rink's doors were too narrow to fit a wheelchair, preventing a disabled person access to watch their kid's hockey practice. There will always be people of all ability levels that will cry sour grapes no matter what.
Games, by definition are designed to present a challenge to the player. If the player has a specific limitation, physical or mental, they cannot always meet the challenge. It does not mean the challenge is flawed. It also does not matter if that challenge requires feet and a ball, or a controller and hands.
I absolutely applaud any developer who tries to make their game as accessible as possible, but by no means should it be a requirement.
You make some really great points and I appreciate the balanced viewpoint, especially from somebody who understands the issue from within.
To add to your own point, fighting games are a prime example of software that would greatly suffer from copious modifications, especially in online communities where pure competition is venerated above all else. If the upcoming Super Street Fighter IV foisted such “optional” controls onto the community, such as abbreviated controls for more complex actions, the integrity of the entire game would be compromised if not outright obliterated. I could also foresee the same disabled gamers who require such modifications then deciding to enter a tournament like Evo, demanding their modified game style be allowed despite it giving them a potential advantage over most players who have slaved away at perfecting their game without the benefit of such shortcuts.
This issue isn’t a slippery slope so much as a deep chasm waiting to swallow up creative freedom and integrity.
On the larger social policy issues, I believe that the game industry is made up of fairly progressive and talented individuals who have the ability to make games more accessible to those with disabilities. Even doing a quick google search of the words "diabled" and "gamers" will lead you to sites that can provide information and education about common problems the disabled face when it comes to enjoying games. I think a better way to accomplish this is to applaud those developers that tackle the problem head on rather than punish those that would rather ignore the issues. For example ablegamers.com just gave Bioware's Dragon Age: Online the Accessable Game of the Year award for 2009:
http://www.ablegamers.com/game-news/2009-accessible-game-of-year-dragon-age-orig
ins.html.
Good for Bioware! It is unlikely every disability could ever be addressed by every single game as other posters have pointed out, but I'd still like to think the solutions are not insurmountable.
The slippery slope argument is useless, because every decision we make, including all of the laws we implement, are slippery slopes. I mean, if we ban assault, what's next, banning playful slaps on the back? And after that, do we ban handshakes? It's obvious that one does not lead to the other. The key, clearly, is to exercise good judgement. But that's true of ALL laws and has nothing to do with anti-discrimination legislation.
The rest of your arguments are absurd hyperbole. At what place of business are there 300 handicapped parking spots? What companies are going out of business because of these supposedly prohibitive expenses required to make entrances that disabled people can use? Where are people given handicapped parking permits because of "slight mental issues" or irritable bowel syndrome? You're just making things up because you're angry.
I've seen some large expenses for ADA compliance - the University of Virginia spent millions building a system of walkways and bridges to ensure its ancient buildings were accessible on every floor - but nothing I would describe as "prohibitive".
"I mean, come on, there's absolutely no question that there are some things that literally everyone needs to be able to access."
I agree but videogames are not one of those things. If companies wish to accommodate special needs then that's terrific but forcing them is ridiculous. Also, hyperbole or not, Jeffry is correct that handicap parking has been abused severely. I see plenty of healthy and mobile people using those spaces all of the time.
Let's face it, common sense is out the window and everybody is now officially a victim.
Is a bowling alley required to rig a method for an armless customer to bowl in their lanes? Certainly not, and I don't think anyone is making an equivalent argument here.
Is a bowling alley required to devise a system to level the difficulty between a player with an agility-restricting physical condition and a more typical player? Not that I've ever heard of.
I think this is a close equivalent to the Sony case. Bowling is a physical activity that requires agility and hand-eye coordination, while computer games are sensory-focused activities that require visual acuity. The agility-limited bowler can still play but will experience a reduction in competitive performance. From the material I've read of the Sony case, Mr Stern could play but at a reduced capacity, and his suit argued that accommodations should be made to allow him to play at a level competitive with other players.
The nature of the medium makes competitive accessibility for all cases unfeasible, but there is an established body of software accessibility practices that game studios could follow *MUCH* better than they currently appear to.