[games_access] suits about discrimination on the basisofdisability?

[Steve Spohn]

Here Here!

On Sun, Jun 24, 2012 at 5:56 PM, Scott Puckett <puckett101 at yahoo.com> wrote:

> I love getting dragged into things. Also, this is cutting into my
> Metalocalypse viewing time, so I'll be brief (which generally means you
> might want to take a bio-break before continuing).
>
> My professional background started in journalism and media, then went into
> consulting, then tech consulting, then researching and developing network
> infrastructure, then back to tech consulting and organizational change
> management. My academic background includes a significant number of law
> classes, primarily focused on constitutional law and gender law. My
> disabilities prevented from attending law school, which is the only reason
> I'm not throwing in a bunch of case citations here. My tech consulting
> actually involved examining and advocating ADA compliance at the dawn of
> the Web as we know it, and accessibility continued to be a theme in my
> consulting practice even before I became disabled. Most people who pay
> attention to such things know that if you design interfaces (Web sites,
> whatever) for accessibility, a side effect of that is that they are often
> vastly and measurably more usable by people who are not disabled. IIRC,
> Jakob Nielsen wrote a fair bit about that, but it's been some years since I
> paid much attention to that sort of thing. I'm not sharing this to say that
> I'm some sort of Internet tough guy, I'm only mentioning these things - and
> only the relevant parts - to establish my experience with this subject and
> in this field, and to explain that it is both professional and academic
> experience and expertise.
>
> So let's establish some ground rules here. Let's begin by assuming that we
> are discussing games of equal quality and public interest. Think Call Of
> Duty, Skyrim, Fallout 3, Battlefield 3, Red Dead Redemption, etc. Think
> about the big selling titles that every gamer knows about and which ship
> lots of copies.
>
> Let's also remember that technology moves much faster than law does. When
> I was doing my student teaching almost two decades ago, a kid asked me what
> I thought of the Internet. I told him then that it would change everything
> he knew. The law is still catching up to that. It always has to because
> lawmakers first have to be aware of a technology, at which point they
> typically start trying to regulate it (actually trying to understand it
> comes later).
>
> With that in mind, let's begin looking at some reasons why legislating
> accessibility in video games is a bad idea.
>
> 1. Free market
> The typical conservative argument is that the market will solve
> everything. This isn't too different from John Milton's marketplace of
> ideas, but for purposes of this discussion, all we need to understand is
> that, given two equally popular and interesting games, the free market
> dictates that the accessible game will sell more copies than the one which
> is less accessible because gamers who need accommodations will buy that
> title. This is a radically simplified expression of the idea, but the basic
> argument here is that people who need accommodations will buy the
> accessible title, generating revenue for the company that made it, which in
> turn encourages greater accessibility. Other developers will see that and
> realize they can also make more money by providing accommodations and begin
> doing so. Thus, the change occurs without need of legislation, regulation
> or litigation, and is driven entirely by market forces. Now, I don't
> believe the free market will solve everything, or even most things, but I
> do believe that spreading the word about highly accessible games which
> are also good - and that is a KEY point - will bring additional attention
> to that game and result in positive reinforcement for the developer,
> encouraging them to make more games that are more accessible. Everyone
> likes to be told they're doing a good job. Positive reinforcement, from an
> organizational change perspective, is the way to address this to realize
> long-term benefits. Accessible games sell more, inaccessible games sell
> less, the market rewards those who make their games accessible.
>
> 2. Reasonable accommodation
> The U.S. government's summary of Title 3 of the ADA is pretty simple:
>
> "Public accommodations must comply with basic nondiscrimination
> requirements that prohibit exclusion, segregation, and unequal treatment.
> They also must comply with specific requirements related to architectural
> standards for new and altered buildings; reasonable modifications to
> policies, practices, and procedures; effective communication with people
> with hearing, vision, or speech disabilities; and other access
> requirements. Additionally, public accommodations must remove barriers in
> existing buildings where it is easy to do so without much difficulty or
> expense, given the public accommodation's resources." (
> http://www.ada.gov/cguide.htm#anchor62335)
>
> There's also a pretty long list of what constitutes a public accommodation:
>
> "Public accommodations are private entities who own, lease, lease to, or
> operate facilities such as restaurants, retail stores, hotels, movie
> theaters, private schools, convention centers, doctors' offices, homeless
> shelters, transportation depots, zoos, funeral homes, day care centers, and
> recreation facilities including sports stadiums and fitness clubs."
>
> You'll notice that none of these things are video games.
>
> The Telecommunications Act (http://www.ada.gov/cguide.htm#anchor63109)
> requires manufacturers of telco equipment (i.e. infrastructure) and
> services (i.e. phone companies, etc.) "to ensure that such equipment and
> services are accessible to and usable by persons with disabilities, if
> readily achievable."
>
> This is likely where most ADA claims for video games would be made,
> although it really only seems to apply to an MMO, if then, and possibly
> multiplayer, although that might be a stretch.
>
> You mentioned "reasonably practicable access," so it seems UK law follows
> a similar bent - focusing on what is both practical and reasonable, not what
> is possible. It's possible to do lots of things - I seem to recall
> sending a few folks to the moon a while back, but we haven't done it for a
> lot people. More to the point, I recall reading an article about Left 4
> Dead which indicated that the surround sound was so detailed that it
> allowed someone who met the legal definition of blindness to play it, and
> reasonably well. I'm reasonably sure that developers at Valve did not set
> out to engineer the game's sound in such a way that blind folks could play
> it, but it happened so it's possible. However, I'm not sure that it is
> reasonable to attempt to legislate such an outcome.
>
> 3. Chilling effect
> And that, not surprisingly, is where we come to the crux of the problem.
> Legislating accessibility in video games will have a chilling effect. Suing
> developers over accessibility seems like both a poorly-considered cash
> grab, as well as something that has a chilling effect. Steve mentioned that
> developers reduced the amount of communication or stopped it entirely for a
> time after the SOE accessibility lawsuit. That's because litigation has a
> chilling effect, and that's part of the point. Suing a slumlord and getting
> a judgement which forces them to bring buildings up to code and assesses
> punitive damages is intended to have a chilling effect, and make other
> landlords fix things before they get sued. However, lawsuits are also a
> form of intimidation intended to silence people, as the current mess with
> The Oatmeal shows.
>
> The SOE suit used a very novel interpretation of a public accommodation
> (for more on public accommodations, read this:
> http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1090&context=dlj),
> one which doesn't really seem to fit the ADA, even the telecommunications
> part of it (and if you want to read more, here's the dismissal:
> http://www.onpointnews.com/docs/Stern-v-Sony_MTD_order.pdf). Looking at
> the actual case, and I looked at it pretty carefully, it didn't pass the
> smell test. Simply put, reading the ADA in that way is not reasonable, nor
> is it practical. It is, in fact, the very opposite of both reasonable and
> practical and would have opened the floodgates for meritless litigation
> that would likely have ended development of all but the most highly
> capitalized (meaning really freaking expensive to make) titles, and
> perhaps even those.
>
> It would, in short, have had a long-term chilling effect on development,
> and actually did have a short-term chilling effect on communication between
> advocacy groups and developers. This is because developers didn't know how
> that case was going to shake out, and didn't want to say or write or
> communicate anything in any way that might later be used against them. For
> the record, from an organizational change perspective, this is exactly how not
> to create positive and lasting change. From a legal standpoint, this is
> not, in fact, something that's up for debate - this is exactly what
> lawsuits do. It's what they're intended to do. It is, in fact, their
> entire point and reason for existence. (And, just in case you'd like to
> debate that point, I have direct experience with this matter from my
> journalism days, when I was sued for libel while other news outlets
> reporting on the same events were not, likely due to the individual's
> perception that I likely didn't have a law firm standing at the ready. What
> he found was worse - a journalist with an actual background in
> constitutional law. I represented myself. It was fun. And he dropped the
> case pretty quickly.)
>
> 4. The Harrison Bergeron effect
> This is the sad part. I believe you mean well. I believe you have good
> intentions, even though I've never met nor talked with you. The problem is
> that I also believe that your view is remarkably short-sighted. Since you
> aren't in or from the US, I can forgive your remarkably oversimplified
> analysis of anti-discrimination laws, because you weren't here, and may not
> have even been alive for them. However, one of my degrees is in American
> Studies, and I've spent a lot of time in the South so, again, I have both
> practical and academic experience in this matter. The simple fact is that
> the laws changed nothing. The National Guard had to take kids to school.
> Civil rights marchers had firehoses and attack dogs loosed on them by law
> enforcement. And this is AFTER the laws were passed at a federal level. And
> that history extends back to the end of the Civil War. The Jim Crow-era
> legislation you're mentioning was just the latest in a long string of
> indignities, and it required the federal government to implement federal
> law at gunpoint, and the federal government still, to this very day, has
> to step in from time to time. In short, it's not as nice or easy as you
> seem to think it is. A lot of people died, and diminishing their sacrifice
> by comparing people who sought the right to vote without being clubbed to
> death or torn apart by dogs to people who are frustrated because a video
> game doesn't have a particular feature set is offensive and insulting on
> its face.
>
> But, again, you aren't from here and you weren't there, so I'll forgive
> your ignorance of American history. It's not like I could engage you in a
> discussion about the Profumo affair, or the Wars of the Roses, or the
> Battle Of Hastings.
>
> With that said, the Harrison Bergeron effect is the most critical reason
> we don't want legislation dragged in. If a government passes legislation,
> that legislation will cause litigation as people try to figure out what it
> means, or push to have it mean something that it may not. Some of this
> litigation will have merit; most will not and will, instead, be an attempt
> for an attorney to pay off student loans or cash in with a big win (see the
> comments about chilling effects above). Developers will hire accessibility
> experts (which would not be a terrible thing), and have attorneys involved
> in game design to reduce the risk of litigation at launch (which would be a
> terrible thing). Only larger developers will be able to afford this -
> smaller developers will likely just stop because it's expensive to defend
> against lawsuits, and recovering legal fees in the wake of a failed suit is
> a nightmare. There's nothing that would distinguish between meritless and
> valid suits, nor prevent the meritless suits, and smaller developers would
> likely quit before they started incurring fees they couldn't afford. By the
> time all of that settled down to a normal level (which means the boundaries
> would have been defined, people would know what they had to do to avoid a
> meritorious suit, etc.), the only developers left would be Activision, EA,
> Bethesda, etc. We'd lose games like Minecraft and Fez and Limbo. We'd lose
> games which are at the forefront of any discussion about whether games are
> art.
>
> And even then, the meritless litigation wouldn't stop - you'd still see
> people trying to think of novel interpretations, i.e. Stern. Vs. Sony
> Online. Developers would still have to follow those same policies.
>
> And the outcome would be terribly boring games. If every single game had
> to adhere to a specific list of accommodations, they would all look a lot
> alike. They'd have the same features and puzzles, and regardless of how
> much I hate quick-time events, I don't think that someone who loves them
> should be denied those events, and the outcome of legislating accessibility
> in gaming would likely include losing that feature, among others.
>
> Let's be really blunt here.
>
> Being disabled isn't fun. I can't run. I can't pick up my little girl and
> give her a piggyback ride. Walking is tough a lot of the time. I deal with
> it, because that's what I do, but I wouldn't wish this on anyone I know.
> But I don't get jealous of Usain Bolt. I don't get mad because another
> father can roughhouse with their kid. I don't wish that people who can walk
> just fine had to slow down or use a cane or walker. I don't, in short,
> expect that other people have to have limitations because I do, nor do I
> think that it's somehow inherently desirable to make every game playable by
> everyone. My disabilities prevent me from playing any game on the Wii, or
> any game that uses motion (i.e. Kinect, Move, SIXAXIS controls, etc.).
> Legislating accessibility for me would mean banning the Wii, the Move and
> Kinect control systems, and SIXAXIS. I think we can all agree that such an
> idea is patently absurd.
>
> The simple fact of the matter is that accommodating a disability must be a
> reasonable accommodation. While some developers are actively trying to make
> games for blind folk and I think that's great, trying to make Battlefield 3
> accessible for the blind would be a development nightmare. Likewise, I
> think any developer who fails to include subtitles at this point is an
> absolute idiot. The solution lies somewhere between those polar examples,
> but we can only find those reasonable and practical accommodations through
> innovation and collaboration, partly because what video games are now is
> something new and we're learning more about what they work and how to make
> them accessible every day. The innovation and flexibility in a controller
> scheme like the one in "Resistance: Fall Of Man" is fantastic and I wish
> more developers would use it, but legislating that means that developers
> would ONLY do that and wouldn't take a risk on perhaps figuring out
> something that worked better.
>
> My time in tech taught me a lot, but one of the biggest lessons I learned
> is that innovation results from having a problem and needing to fix it.
> That's where Evil Controllers shines, and three of the folks I game with
> have a one-handed controller. It doesn't matter to them whether a game is
> natively accessible to players with use of only one hand, because they
> already solved the problem. Likewise, there's another guy who can't really
> use thumbsticks on a standard controller, so he molded his own joysticks so
> he didn't have that problem anymore.
>
> When people try to legislate technology, what they often overlook is that
> technology will, given a sufficient timeline, innovate its own solutions to
> its own problems. Individuals will create new things to mitigate problems.
> Legislating things like accessibility ensures that we lose that innovation
> because people simply don't have to think about it anymore, and so they
> don't. They implement exactly what the law says they have to, and then they
> don't think about it again.
>
> So.
>
> Litigation for gaming accessibility is bad. It's perhaps the single worst
> way to handle it.
>
> But legislating gaming accessibility runs a very close second.
>
> I want developers to do this stuff and get it right. It's why, any time
> I'm face to face with someone doing this stuff, I talk to them about it
> with specific, concrete examples of how they can implement things to
> improve accessibility without taking away from gameplay.
>
> But we also need to remember how inherently individual disability actually
> is, and how a single solution may not work for two people, even if they
> have the same disability condition. Legislation is one size fits all. Me?
> I'd rather see the developers innovate flexible new solutions, and it's
> important to note that this is happening. It's happening right now. It was
> in L.A. Noire, and it's in Max Payne 3. It's in MLB The Show 2011, which is
> the first baseball game I know of that subtitled the announcers'
> play-by-play. It's happening right now, and without regulation or
> legislation.
>
> So no, I don't think we need it. I think it would make things remarkably
> worse, and more boring, and that we'd hate the result. But hey, what do I
> know? I just did this stuff as part of my professional career for the best
> part of two decades and in several separate sectors subject to significant
> federal oversight (real estate, finance, insurance, etc.). I just watched
> people go to work every day and solve intractable problems and generate
> mind-melting tech as a result. I'm just looking at what developers are
> actively doing right now and seeing that this change is happening without
> legislation or regulation, and that regulation, legislation and litigation
> aren't necessary.
>
> It isn't as fast as I'd like, but sustainable change doesn't happen
> quickly. It takes time, and people have to adjust to it, and learn a new
> way of thinking and doing. But once they've done that, they don't forget
> it, and it becomes part of what they do.
>
> And that's where we are right now.
>
> Like I said at the beginning, take a bio-break before reading.
>
> It's not my fault if you didn't listen ;)
>
> Regards and other such things.
>
>   ------------------------------
> *From:* Steve Spohn <steve at ablegamers.com>
> *To:* IGDA Games Accessibility SIG Mailing List <games_access at igda.org>
> *Cc:* Scott Puckett <puckett101 at yahoo.com>; Mark Barlet <
> mark at ablegamers.com>
> *Sent:* Sunday, June 24, 2012 2:43 PM
>
> *Subject:* Re: [games_access] suits about discrimination on the
> basisofdisability?
>
> I agree that we will differ on this one, but I have to call strawman on
> your argument. By that logic the only reason we don't murder people is
> because the 10 Commandments tell us not to. I have CC'd the most passionate
> person I know about this argument. Maybe he can change your mind.
>
> On Sun, Jun 24, 2012 at 3:14 PM, Barrie Ellis <oneswitch at gmail.com> wrote:
>
> **
> My counter argument to that is pretty simple I think.
>
> In the UK, until the 1995 Disability Discrimination Act came into place,
> very few shops made any effort to provide "reasonably practicable access"
> to people such as wheelchair users. They complained that it would be far
> too expensive. All these years later, you'd be very hard pressed to find a
> shop that doesn't have wheelchair access. The legislation really has made a
> positive and lasting difference, and few people would worry about it now,
> or think it unfair.
>
> The reasonably practicable element is where good reason comes in (and yes
> with some grey areas). There's no pointing a gun to people's head. If it
> wasn't for anti-discrimination laws coming in, you'd probably still have
> racially segregated buses in the US, and such like around the world.
>
> Yes, developers worry, but if everyone has to take into account
> accessibility, it's far less of a worry. Altrusism and education only goes
> so far. I think we'll have to agree to differ though Steve, from previous
> discussions.
>
> Barrie
>
>
>
>
>
>
>  *From:* Steve Spohn <steve at ablegamers.com>
> *Sent:* Sunday, June 24, 2012 8:03 PM
> *To:* IGDA Games Accessibility SIG Mailing List <games_access at igda.org>
> *Subject:* Re: [games_access] suits about discrimination on the
> basisofdisability?
>
> I would like to hear your counterargument. Being that I have to personally
> deal with developers every day in a number of things associated with AG, I
> can tell you that many of them had trepidation after that suit fearing that
> it may be the first of such lawsuits. Laws and lawsuits are not the way to
> bring about change.
>
> Hell, some people used to say the tactics AbleGamers uses (pointing out
> videogame flaws in accessibility, doing reviews, and God for bid, talking
> to developers directly) were bullying tactics and repeatedly asked us to
> stop in favor of doing studies. Yet trying to force developers,
> particularly indies, to make adaptations to their product or face the
> consequence of the law, is acceptable?
>
> I think that is a bit of a double standard.
>
> Walking down the road of virtually pointing a gun in the face of the
> developers saying "add a colorblind mode or else" is a very slippery slope.
>
> On Sun, Jun 24, 2012 at 2:47 PM, Barrie Ellis <oneswitch at gmail.com> wrote:
>
> **
> Also would say that it doing more harm than good is up for dispute.
>
>  *From:* Steve Spohn <steve at ablegamers.com>
> *Sent:* Sunday, June 24, 2012 7:21 PM
> *To:* IGDA Games Accessibility SIG Mailing List <games_access at igda.org>
> *Subject:* Re: [games_access] suits about discrimination on the basis
> ofdisability?
>
> It was thrown out. Also, many of AG SE & SIG condemned the law suit as it
> is not a good way to bring about change. Many devs clammed up for awhile
> after this law suit. It did more harm than anything.
>
> On Sun, Jun 24, 2012 at 10:28 AM, Sandra Uhling <sandra_uhling at web.de>wrote:
>
> Hi,
>
> do we have a list with suits about discrimination on the basis of
> disability?
>
>
> I have only this:
>
> http://www.gamespot.com/news/visually-impaired-gamer-sues-sony-online-623933
> 9
>
> Does someone have information about the result?
> Was ist because it was no "public service" or/and error in form?
>
> Best regards,
> Sandra
>
> _______________________________________________
> games_access mailing list
> games_access at igda.org
> http://seven.pairlist.net/mailman/listinfo/games_access
> The main SIG website page is http://igda-gasig.org
>
>
>
>
> --
> Steve Spohn
> Editor-In-Chief
> The AbleGamers Foundation
> AbleGamers.com <http://www.ablegamers.com/> | AbleGamers.org<http://www.ablegamers.org/>
>  | Facebook <http://www.facebook.com/ablegamers> | Twitter<http://www.twitter.com/ablegamers>
>
> ------------------------------
>  _______________________________________________
> games_access mailing list
> games_access at igda.org
> http://seven.pairlist.net/mailman/listinfo/games_access
> The main SIG website page is http://igda-gasig.org
>
> _______________________________________________
> games_access mailing list
> games_access at igda.org
> http://seven.pairlist.net/mailman/listinfo/games_access
> The main SIG website page is http://igda-gasig.org
>
>
>
>
> --
> Steve Spohn
> Editor-In-Chief
> The AbleGamers Foundation
> AbleGamers.com <http://www.ablegamers.com/> | AbleGamers.org<http://www.ablegamers.org/>
>  | Facebook <http://www.facebook.com/ablegamers> | Twitter<http://www.twitter.com/ablegamers>
>
>  ------------------------------
> _______________________________________________
> games_access mailing list
> games_access at igda.org
> http://seven.pairlist.net/mailman/listinfo/games_access
> The main SIG website page is http://igda-gasig.org
>
> _______________________________________________
> games_access mailing list
> games_access at igda.org
> http://seven.pairlist.net/mailman/listinfo/games_access
> The main SIG website page is http://igda-gasig.org
>
>
>
>
> --
> Steve Spohn
> Editor-In-Chief
> The AbleGamers Foundation
> AbleGamers.com <http://www.ablegamers.com/> | AbleGamers.org<http://www.ablegamers.org/>
>  | Facebook <http://www.facebook.com/ablegamers> | Twitter<http://www.twitter.com/ablegamers>
>
>
>
>


-- 
Steve Spohn
Editor-In-Chief
The AbleGamers Foundation
AbleGamers.com <http://www.ablegamers.com/> |
AbleGamers.org<http://www.ablegamers.org/>
 | Facebook <http://www.facebook.com/ablegamers> |
Twitter<http://www.twitter.com/ablegamers>
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